
    Mary E. Hindman and Others, Appellants, v. Ellen F. Haurand, Respondent; Cornelia Hartwell Haurand and Others, Appellants.
    
      Legacies—the use, after giving various legacies, of the phrase “ after the-beqúesto and provisions above mentioned,” does not charge them, upon, the realty—proof of the testators ability, about the time they were given, to pay the legacies.
    
    As a general rule real estate is not charged with the payment of legacies; it is never so charged unless the testator so intends, and such an intention must be expressly declared or must be fairly and satisfactorily inferable from the language and disposition of the will.
    In an action brought to have it adiudged that certain legacies bequeathed by the last will and testament of Bernard J. Haurahd were liens upon the real estate devised by the testator, it appeared that after giving the legacies in question the testator made the following provision in- the seventh clause of his will: “After the bequests and provisions above mentioned, I give, devise and bequeath to my beloved wife, Ellen F. Haurand, all the rest, residue and remainder of my estate, real and personal, wheresoever the same may be and of whatsoever character or description the same be known, to my beloved wife absolutely and to her heirs and assigns forever.”
    
      Meld, .that the rise of the phrase “after the bequests and provisions above mentioned,” did -not charge -the real estate with the payment of the legacies;
    That the effect of the phrase in question was not stronger than if the testator had used the words, “All the rest, residue, and remainder ” of my estate is bequeathed to my wife; ■
    That this view taken was strengthened by the proof made that shortly after the time when the testator made his will he had personal property sufficient to pay all the legacies, given in the will.
    Appeal by the plaintiffs, Mary E. Hindman and others, and by the - -defendants, Cornelia Hartwell Haurand and others, from a judgment of the Supreme Court, entered -in the office of the clerk of the county of Hew York on the 4th day of February, 1895:, upon the decision of the court rendered after a trial at the Hew York Special Term,."adjudging that certain legacies bequeathed by the last will and testament of Bernard <J. Haurand, deceased, are not liens upon the real estate devised by the testator in his will.
    The following is the will of Bernard J. Haurand, deceased:
    “ In the Hame of God, Amen.
    “I, Bernard-J. Haurand, of'the city and State of Hew York, being of sound mind, memory and understanding, do hereby make, publish and declare this to be my last will and testament in manner and form following, namely:
    
      “'First. I most earnestly request and direct that, my remains be interred in my family burial jilot in the Baltimore cemetery in the city of Baltimore, in accordance with the wishes in that regard heretofore expressed to my beloved wife.
    “ Second. I direct that my funeral expenses and all the just debts and lawful debts may be paid and discharged as soon after my decease as practicable.
    “ Third. I give and bequeath to Cornelia. Hartwell, the widow of my brother, Rudolph Haurand, of Richmond, Virginia, the sum of fifteen hundred dollars, to be held, used and employed by her in securing a house or providing a home for and for the benefit generally of her children Lizzie Norah, Ella Cornelia, John Bernard, and William Rudolph; and I hereby commit to my said brother’s widow the care and custody of the sum above, mentioned for the uses and purposes aforesaid for the term of her natural life; the object of this bequest being to aid in providing a home for my said sister-in-law and for her children.
    
      “ Fourth. From and after -the death of the said Cornelia Hart-well, my brother’s said widow, I give and bequeath the said sum of fifteen hundred dollars and the proceeds and results of the same or of any investment thereof whatsoever, the same maybe, to my nieces and nephews, the said Lizzie Norah, Ella Cornelia, John Bernard and William Rudolph Haurand, to be equally divided between them, share and share alike, absolutely; and to their respective heirs and assigns forever.
    “ Fifth. I give and bequeath to my nieces Louise Jane, Mary Elizabeth and Florence Haurand, of the city of Baltimore, severally, the children of my deceased brother, William Haurand, the sum of five hundred'dollars each, aggregatingfif teen-hundred dollars; the said sum of five hundred dollars each being given to my said three nieces absolutely, and to them respective heirs and assigns forever.
    
      “Sixth. I direct that my-executrix hereinafter named as soon as practicable, after my decease cause and procure a monument to my memory to be erected in the plot aforesaid in the said Baltimore cemetery, at an expense of one "hundred and fifty dollars; and I hereby give and bequeath to my sister, Mrs. Elizabeth Kesinodel of said city of Baltimore the sum of one hundred dollars, in trust, nevertheless, to apply the interest and income derived therefrom towards the keeping in proper order and repair the said plot and monument in said cemetery; and after the death of my said sister the interest and income of said last-named sum shall be applied to the same purpose in the manner and by the person or persons as she shall direct; and I most earnestly request my relatives who may survive me and their descendant not to neglect the keeping in order of the said burial plot but as the years go by, to keep and maintain the same in neat and proper order and condition..
    . “Seventh. After the bequests and provisions above mentioned, I give, devise and bequeath to my beloved wife, Ellen F. Haurand, all the rest, residue and remainder of my estate, real and personal, wheresoever the same may be, and of whatsoever character or description the same be known, to my beloved wife absolutely, and to her heirs and assigns forever.
    “And lastly, I make, constitute and appoint my said beloved wife, Ellen E. Haiirand, the sole executrix of this my last will and testament, hereby revoking and declaring absolutely null and void all former or other wills by me at any time made.
    “ Witness Whereof, I have hereunto set my hand and seal at the city of New York, aforesaid, this twenty-first day of April, in the year of our Lord, one thousand eight hundred and eighty-six.
    “BERNARD J. HAURAND. [l. s.]
    “ The above and foregoing instrument was on the date of the day thereof signed, sealed, published’ and declared by the testator, Bernard J. Haurand, as and for his last will and testament in our presence, and we, at his request and in his presence, and in the presence of each other, have hereunto subscribed our names as witnesses thereto:
    “ James W. Covert, residing at L. I., City of N. Y.
    “ James E. McLaughlin, residing at Jamaica, L. 1.”
    
      Hermcm Aaron, for the appellants.
    
      A. If. Weller, for the respondent.
   Van Brunt, P. J. :

It may not be at all necessary to add anything to the opinion "which was delivered by the learned justice in the court below upon the trial of this case. We think that he satisfactorily demonstrates that the language of the will in question has never been considered to be of such a character as to justify the charging of the payment of legacies upon real estate.. The tule in respect to this question was laid down in the the case of Lupton v. Lupton (2 Johns. Ch. 614), and does not seem to have been departed from,, as the same rule is enunciated in Briggs v. Carroll (117 N. Y. 288).

The authorities cited by the counsel for the appellants in regard to the effect of provisions of this character-do not seem to have intróduced any new rule of interpretation, it being held that the whole question is one of intent, to be determined from the language of the will and the circumstances surrounding the testator, aided by the light which adjudged cases sometimes throw upon such language and circumstances. ( Wiltsie v. Shaw, 100 N. Y. 191.) In the case cited the testator died leaving personal property exceeding $50,000 in value over all indebtedness, besides certain real estate. By his will, after making bequests amounting to $1,100, he gave to his executors $20,000 in trust to invest said sum in the best securities they could obtain, and-to use the income for the benefit and maintenance of the testator’s son during his life and upon his death to pay over the principal. The residue of his estate, real and personal, he gave to another party. It was held that the legacies were not charged upon the real estate of the testator, the court saying: “ It is clearly not sufficient that the legacy is directed to be paid. The cases all involve something more — a direction that it be ‘first or previously paid,’ or the residuary devise is ‘ after its payment,’ or is to a person with directions to pay, or is of all ‘ not herein otherwise disposed of.’ ” The language of the will in question does not seem to come within the rule which is above laid down. “After the bequests and provisions above mentioned ” does not seem to be any stronger than, the words “ all the rest, residue and remainder.”

It is to be observed also that, shortly after making the will in question, the testator had personal property sufficient to meet all the legacies therein contained, and that, in consequence of ill health, which prevented him from continuing his business and required him to use part of this personal property for living expenses, siich personal property was so reduced at the time of his death as not to be sufficient to meet the legacies. Under these circumstances, the deficiency was not so great and obvious as to preclude any possible inference that the testator did not realize it, or that he might have intended before his death to make up fee deficiency. The .evidence shows that, shortly after making the will, the deficiency was actually made up, bringing the case clearly within the principle expressed in Briggs v. Carroll (supra).

The judgment should be affirmed, with costs.

Barrett, Rumsey and O’Brien, JJ., concurred.

Judgment affirmed, with costs. 
      
       The following is the opinion delivered in the trial court:'
      Ingraham, J.:
      The only question in this case is whether certain legacies to the nephews and. •nieces of the testator are charges upon the testator’s real estate, the personal estate not being sufficient to pay the debts and expenses of administration.
      The general rule is stated by Chancellor Kent, in the case of Lupton v Lupton (2 Johns. Ch. 623), as follows: “ The real estate is not, as of course, charged with the payment of legacies. It is never charged unless the .testator intended it should be, and that intention must be either expressly declared or fairly and satisfactorily inferred from the language and disposition of the will.” In that case, it was held that the clause, “ I give, devise and bequeath, etc., all the rest, residue and remainder of my real and personal estate not hereinbefore already devised or bequeathed,” did not furnish evidence of an intention to charge land with pecuniary legacies, the Chancellor saying: “If that residuary clause created such a charge, the charge would have existed in almost every case, for it is the usual clause, and a kind of formula in wills. It means only, when taken distributively reddendo singula singulis, that the rest of the personal estate, not before bequeathed, is given to the residuary legatees, and that the remainder of the real estate, not before devised, is in like manner disposed of. It means that the testator does not intend to die intestate as to any part of his property, and it generally means nothing more.”
      That case has established the rule in this State, and subsequent cases, so far as I am aware, have simply applied this rule to the peculiar phraseology of each will required to be construed.
      The will in this case, after giving the pecuniary legacies that are now sought tobe charged upon the real estate, provides as follows: “Seventh. After the
      bequests and provisions above mentioned, I give, devise and bequeath to my beloved wife, Ellen F. Haurand, all the rest, residue and remainder of my estate, real and personal, wheresoever the same may be, and of whatsoever character or description the same be known, to my beloved wife, absolutely, and to her heirs and assigns forever.”
      I do not think that this clause standing alone indicates an intention to charge legacies of money upon the testator’s real estate. It is in substance the same as the provision in the will considered in the case of Lupton v. Lupton, and the use of the words “after the bequests and provisions above mentioned” did not indicate that the testator intended to change the rule of law as to the fund or property from which the pecuniary legacies were to be paid. The only inference that can be drawn from this language is that he intended that all his personal property not necessary to satisfy the bequests and provisions contained in the will should go to his wife; and the fact that he united with that provision ,a clause giving all his real estate to his wife cannot have the effect of expressing an intention that the real estate should only go to his wife charged with the. payment of legacies that were payable only out of personal property. I think it -most probable that this contingency was not presented to the testator at all when he made this will, and there is nothing to show that he considered the question as to whether or not these legacies were to be paid by the sale of the -real estate in case his personal estate was not sufficient to pay them. But in order to hold' that the legacies were chargeable upon the real estate, it is necessary to find affirmatively that the question did present itself to the-testator and that he. intended that they should be so charged. . •
      There is nothing in this will that directs the payment of the legacies before the residuary estate shall take effect,, as in the case cited of Lupton v. Lupton, where the legacies were to -be' paid as a condition upon the vesting of the real estate. That-would show an intention that the devise should only take effect when the legacies ’were paid. But in this case there is no direction as to payment. In each case cited by the plaintiffs there was either an express direction to pay the legacies before the devise was to take effect or the gift over was after deducting the legacy, or there was language importing an intention of, the testator to postpone the vesting of the devise over until the specific legacies had been paid. But -in this case there is no such provision. It is, after the bequest and provisions of the will, “I give, devise and bequeath,” not,after the payment of the legacies, contained in. the will;. and thus, as Stated by Chancellor Kent in Lupton v. Lupton, “ It is not sufficient that debts or legacies are directed to be paid. That alone does not create the charge, but they must be directed to be first or previously paid, or fhe devise declared to be made after they are paid.”
      Much of the testimony of Mrs. Haurand as to the statements made to her by the testator, which was taken before the referee and submitted .to me, is incompetent and involves personal transactions between herself .and the testator, but-I do not think that -anything that appears in her testimony should change the construction that I have given to the words used. At the time the will was made the testator was in, business; with considerable money in- the bank; just how much at the date of the making of the Mil does not appear. Nothing appears, however, to show, that he at the. time was without any personal- property from which these -legacies could be paid and thus- create an inference that he must have intended them to be paid from -his real estate.
      I think,' therefore, the're should be judgment for the defendant that thelegacies are nota charge upon the real estate, the costs of the guardian asá! litem to be paid, out of the estate.
     