
    Maria L. Thorp et al., Ex’rs, v. George Munro, et al.
    
    
      (Supreme Court, General Term, First Department,
    
    
      Filed January 23, 1888.)
    
    1. Wills—Construction of—Real and personal property merged in’ COMMON FUND.
    This action was brought to charge a parcel of real estate with the ouraen of a legacy. The testator, among other things, made certain provision for his widow out of the income of part of his real property, and after malting certain specific legacies and devises, bequeathed certain moneys to legatees' named in the will; otherwise no disposition was made of the personal prop-] erty, except in the residuary clause. The residuary clause was as follows:] “ I give, bequeath and devise,” also all other real and personal estate which I may own or possess in New York and New Jersey, or anywhere else,] subject to the foregoing provisions in this my will, and also all the rest and residue of my estate whatsoever and wheresoever the same maybe,] subject to the forgoing provisions in this “my will.” ■ Held, that the personal property not otherwise disposed of was blended with the' real property not specifically mentioned, but subject to the foregoing provisions of the will.
    S, Same—Personal property primarily liable for payment of legacies —When real property charged with.
    
      Held, that the personal property of a testator, is the fund first to be resorted to for the payment of legacies, and that the real property is not charged with their payment unless such was the intention of the testator. And that this must be expressly declared or satisfactorily inferrible from the language of the will.
    1. Same—What language sufficient to charge real property with PAYMENT OF LEGACIES.
    
      Held, that by the language of the will the real property included in the residuary clause, was subjected to the payment of legacies.
    4. Action to charge payment of legacy upon real property—When ACCOUNTING BY EXECUTOR NOT PRE-REQUISITE.
    
      Held, that where it was admitted by the executor that the entire personal property of the estate had been squandered, it was not necessary that there should be an accounting on his part previous to bringing an action, such as the present one.
    Appeal from judgment on trial before the court without a jury.
    
      Walsh & Eckerson, for app’lts; John Chetwood, for resp’ts.
   Brady, J.

This action was brought to charge a parcel of real estate with the burden of a legacy given by Nathan Thorp; deceased, who was a resident-of New Jersey, and died at Rahway, in that state. He left him surviving a widow and an only child, Albert Gr. Thorp, Jr., whom h® made his sole executor.

'The will directed the payment of debts, made provision for the widow by the. appropriation to her use for life of the homestead in Rahway, the use of the household furniture and of the rents of realty in New Jersey, and the payment to her of the dividends on fifty shares of New Jersey railroad and transportation stock and also on stock of the National bank of Rahway. It then directed the investment of $1,000 to the_ use of his brother, D. Lyon Thorp, the interest of which was to be paid tó him during his natural life, and, .upon his death, the principal was directed to be paid to his son or sons then living; if none living, the same was to become part of his residuary estate. He also bequeathed to 'Albert G-. Merchant the sum of $500 and made bequests to 'persons named of engravings and portraits and his gold 'watch, none of which, however, were to take effect during the lifetime of his wife.

■ By the seventh clause of his will, the contents of which present the question to be considered, he made a specific idevise of the house and lot No. 31 West Twenty-second street, in this city, to Albert G-. Thorp, Jr., together with all the furniture therein belonging to him

That clause is as follows:

Seventhly. I give, bequeath and devise to my son, Albert !Gr. Thorp, Jr., Esquire, counsellor at law in New York, his heirs and assigns forever, the house and lot of land situate at thirty-one, West Twenty-second street, New York, where 'he now resides, together with all the furniture therein' belonging to me. Also all other real and personal estate which I may own or possess in New York, New Jersey or anywhere else, subject to the foregoing provisions in this, my will, and also all thq rest and residue of my estate whatsoever and wheresoever the same may be.

It appeared upon the trial that the personalty amounted to about $30,000, all of which had been disposed of by the executor in unfortunate operations; that he never invested the suin of $1,000, as directed by the will, and that he was insolvent, and, further, that the last piece of property conveyed by him, which was a part of the residuary estate, was that described in the complaint, and upon which the judgment rendered herein rests!

The theory of the plaintiff’s case is that the intention to charge the residuary estate with the payment of the legacy mentioned appears beyond all peradventure. The defendant contests the accuracy of this, and insists that the action was prematurely brought for the reason that it is not alleged and does not appear that the executor ever made or ’ rendered any account of his proceedings or had ever been called upon to make such accounting, and that the complaint does not contain any allegation to the effect that he has not in his hands sufficient funds or property of the estate to pay it, contending further that the allegation of the insolvency of the executor, and that he has expended the personal property of ■ the estate is not sufficient to establish insolvency.

It is not disputed that the premises mentioned in the complaint form a part of the residuary estate. It will have been observed that, except that part of it, the income of which was given to the testator’s widow, and the two bequests, one to D. Lyon Thorp and the other to Albert G-. Thorp, merchant, and the engravings and portraits to which reference has been made, there was no disposition of the personal estate. It was, therefore, blended with the real estate not specifically mentioned, and formed a part of the residuary estate, which was given, as will also have been seen, to Albert G-. Thorp, Jr., the executor, . but, according to the language of the gift, “ subject to the foregoing provisions in this, my will,” the following words in the clause being beyond all question surplusage:

It is undoubtedly the rule that the personal estate is the primary fund out of which legacies are payable, and that the real estate is not charged with the payment of them unless the testator intended it to be, which must be either expressly declared or fairly and satisfactorily inferred from the language and disposition of the will. Leigh v. Savidge, 14 N. J. Eq., 129, and cases cited. Or, as stated in the case of Wiltsie v. Shaw (100 N. Y., 194), it is not controverted that in the absence of directions by the testator or some manifest intention on his part, the general rule requires that legacies shall be paid out of the personal estate, and whether the legacy is a lien or charge upon the real estate must be gathered from the words of the will or found in somé provision of law. This rule is also shown in Roper upon Legacies (p. 670, note 1), to have been declared in many cases in this country, viz: that the intention to charge the payment of legacies upon real estate arises only when the intention to so charge it is expressly declared or fairly to be inferred from the language of the will. The executor, having been made the recipient of all the.other real and personal estate owned by the testator in New York, New Jersey, or elsewhere, subject to the foregoing-provisions of the will,” and no specific appropriation of any part of his estate having been made for the payment of the legacies, took the gift subject to such payment, and the real estate was thus charged. The words “subject to the provisions of the will ” leave no doubt upon the question. The lexicographers define the word “ subject ” as meaning “to make liable; to bring under the control or action of; to make subservient.” No other interpretation can be given to the language thus employed, which, indeed, may be regarded without perversion of its meaning as an express direction to that effect. This brings it within the rule stated.

The pursuit of knowledge upon this subject has not resulted in the discovery of any adjudication directly in point. The decisions which are germane are perplexing and difficult to reconcile. The observation attributed to Sir William Jones, uttered more than 200 years ago, and recalled in Rathbone v. Dyckman (3 Paige, 26), that a case upon a will has no brother, is strongly applicable here. Authorities in point, therefore, cannot reasonably be expected.

Bowen, J., in Reynolds v. Reynolds (16 N. Y., 257), grouping together the causes which make the payment of legacies a charge upon the real estate gives the results as follows: Where a testator directs his debts and legacies to be first paid, and then devises real estate, or where he devises the remainder of his estate, real and personal, after payment of debts and legacies, or devises real estate after payment of debts and legacies, or where the devisee of real estate is appointed executor and is expressly directed to pay debts and legacies it has been held that the real estate was charged. This case, though not perhaps expressly within this group, is embraced within the observation o£ Johnson, J., in the opinion rendered by him in the same case as a reason why the realty was not charged with the payment of the legacies, nor is the devise of the real estate made subject to the payment of the legacies, or after their payment. It is thought that the language of the seventh clause, to which attention has been called, is equivalent to that above quoted.

In Ragan v. Allen (7 Hun, 537) it was held that" where the testator gave several legacies, and then, without creating any express fund or trust for their payment, made a general residuary disposition of the rest, residue and remainder of his real and personal estate, blending the real and personal together in one fund; the real estate is to be charged with the legacies upon the ground that in such case the rest, residue and remainder ¿an only mean what remains after satisfying the previous legacies. The words used in the will under consideration are equivalent to, if they do not exceed, in significance the words “rest, residtie and remainder. ”

In Tracy v. Tracy (15 Barb., 505) the same rule was declared. See also McLoughlin v. McLoughlin (30 Barb., 458); Shulters v. Johnson (38 Barb., 80).

In Hoyt v. Hoyt (85 N. Y., 149) this rule was referred to in combination with the cases bearing upon it, and it was. said to prevail in some of -the states of the union and in the federal supreme .court, and it was further said, “We were urged to adopt this rule in deciding Bevan v. Cooper, but while we did not undertake, to question the soundness of the reasoning in the decisions there cited, we had in mind the remarks of the chancellor in Lupton v. Lupton (2 Johns. Ch., 623), and of Potter, J., in Myers v. Eddy (47 Barb., 263), and as we could dispose of the case then without adopting or rejecting the rule we did neither.”.

This adjudication is referred to as one which, though it does not decide the question or adopt the rule, nevertheless by not undertaking to question the soundness of the reasoning of which it is predicate, virtually intimates its propriety and justice. The right of the plaintiff to recover, therefore, seems to be sustained not only by the intention of the testator, plainly expressed, to charge the residuary estate with the payment of the legacies, but, also, upon the construction to be placed upon his will resulting from the blending of the real and personal estate, together as one gift.

The determination of this question substantially disposes of this appeal inasmuch as there can be no doubt under the authorities that a specific devise of real estate reheves it from the burden of any legacy unless it be expressly charged, therewith, by the testator. I Roper on Legacies, 660, marginal page. Here the charge seems to be expressly of the residue, for the reasons assigned. It is given subject to the provisions of the will. Nor is there any doubt that in a case distinguished by the facts and circumstances of this, it is not necessary that there should be an accounting. To require it where the executor admits that the whole •estate is squandered, and that there is nothing left of it would be a futile and idle ceremony, a vain thing; and vain things are condemnnd in legal maxims, as was observed in Perkins v. Stimmel (4 N. Y. State Rep., 459).

The judgment should be affirmed.

Yah Brunt, Oh. J., and Daniels, J., concur.  