
    John W. Cornell, Respondent, v. Rodney Van Wormer and Charles T. Beach, as Executors, etc., of Francis M. Van Wormer, Deceased, Appellants, Impleaded with George A. Cornell and Others, Defendants.
    Third Department,
    November 10, 1909.
    Will construed — when debts not chargeable on real estate.
    A will directed that all the testator’s debts and funeral expenses should be paid from his estate and provided for the erection of two monuments and the care of a cemetery lot. By a subsequent clause the testator gave to his wife a certain dwelling house, together with the household furniture, etc., and all moneys that he had in banks or loaned on notes or otherwise, to be hers forever, except a certain sum or so much thereof as should be necessary to pay all his funeral expenses, debts and costs of administration, and cost of erecting and caring for the monuments. The residue of the estate he gave in trust to the executors to pay the income to his wife for life, with remainders over to other persons.
    
      Held, that the devise of the house and lot was separate and distinct from the subsequent bequest of personal property, and that the latter only was chargeable with the debts directed to be paid and the other expenditures ordered.
    
      Appeal by the defendants, Rodney Van Wormer and another, as executors,' etc., from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Washington on the 18th day of May, 1909, upon the decision of the court rendered after a trial before the court without a jury at the Washington Trial Term.
    The action is one for partition. It is alleged in the complaint that Sarah M. Van Wormer was at the time of her death on October 18, 1908, seized in fee and in possession of the premises which are the subject of the action. She received the same under the will of her husband, Francis M. Van Wormer, who died September 25, 1907. The claim is made by the appellants that under such will the premises in question are chargeable with the debts, funeral expenses, expenses of administration and cemetery charges of the testator. Under such will he first directs that all of his just debts and funera.1 expenses be paid by his executors out of his estate. He then provides for two monuments and the care of a cemetery lot. Then follows this clause:
    
      “Fifth. I give, devise and bequeath to my beloved wife, Sarah M. "Van Wormer, all of my household furniture, watches, jewelry, personal belongings, library and the dwelling house and lot, situate at Ho. 78 Main Street, Sandy Hill, H. Y., and also all moneys that I may have in Banks or loaned out on notes or otherwise at the time of my decease to be hers and her heirs and assigns forever, except the sum of two thousand five hundred dollars ($2,500) or so much thereof or as much more as may be necessary to pay all my funeral expenses, debts, expenses of administration of my estate and erect the monuments and markers and provide for the perpetual care of my cemetery lot, as hereinbefore provided.”
    He then gives all the remainder of his estate in trust to his executors to collect the income therefrom and pay it to his wife for life and upon her death it is given to certain of his relatives excepting a small bequest to a church society. His estate consisted of the house and lot in question having a value, over a small mortgage thereon, of about $4,000; 25 shares of Imperial Wall Paper Company stock, valued at $2,675; 674 shares of stock of the Sandy Hill Iron and Brass Works, valued at $67,400, and other personal property valued at $3,817.23, exclusive of household effects, cloth-lug and watch. The claims against the estate including funeral expenses and expenses of administration were a little over $7,000; and the amount required to provide for the monuments mentioned in the will, and for perpetual care of cemetery lot amounted to about $1,800, making the total of charges against the estate a little over $8,800. The court on the trial found that the debts, funeral expenses, expenses of administration and cemetery charges were not charged on the real estate, and decreed its sale and a division of the proceeds thereof. The executors of Francis M. Van Wormer have appealed.
    
      Bratt & Van Wormer [Fred A. Bratt of counsel], for the appellants.
    
      W. B. Young and J. A. Kellogg, for the respondent.
   Chester, J.:

The devise in the 5th clause of the will of the house and lot which is the subject of this action appears to be separate and distinct from the bequests of the personal property thereafter given in such clause except as these two are joined by the conjunction “ and.” The devise of the real estate is of an absolute estate in fee. Then follow the words “ and, also all moneys that I may have in Banks or loaned out on notes or otherwise at the time of my decease to be hers and her heirs and assigns forever, except the sum of two thousand five hundred dollars ($2,500) or so much thereof or as much more as may be necessary to pay all my funeral expenses, debts, expenses of administration of my estate and erecting the monuments and markers and provide for the perpetual care of my cemetery lot, as hereinbefore provided.”

I think the testator intended by this language to subject the money lie had in bank and the moneys due him on notes or otherwise to the payment of the matters mentioned after the word “ except ” and to give his wife the surplus, if any remaining, and that he did not intend to charge these matters upon the dwelling house and lot or upon the household furniture, watches, jewelry, personal belongings and library which he had by the 1st clause of the item given to her. In construing the will and in finding the intent of the testator we must take the situation as it existed when the will was made. If the debts and funeral expenses are to be charged upon the house as well as upon the moneys in bank and the moneys loaned out on notes, it is apparent from the amount of the debts that the entire value of the house will be required. It would hardly seem probable that the testator would go through the form of making a devise of his dwelling house to his wife absolutely, and in the same item of the will charge it with the payment of debts sufficient in amount to take it away from her, especially where he had a large personal estate invested in the stock of the companies in which he was interested. This construction appears to be in harmony with the testator’s intention as expressed in the 9th clause of the will where he says the object of this will “ is to amply provide for the comfortable maintenance of my wife during her lifetime.” It cannot be that he supposed that a comfortable maintenance for his wife could be promoted by having the dwelling house which he had given her taken for the payment of his debts and she left without a home when he had ample personal estate to pay all his debts and the other charges mentioned. It is urged, however, that in the 9th clause referred to the testator also stated that the object of his will was to distribute the residue of his estate in such manner as not to incumber, injure or any way interfere with the Sandy Hill Iron and Brass Works or the management or business thereof. In his will he had provided for the distribution of the stock of these works among various beneficiaries and had expressed a desire that if it could be satisfactorily arranged by the executors with the legatees the shares of stock of these works should be held by them in trust for a period of five years after the death of his wife, paying the income during that time to the several legatees in proportion to the number of shares bequeathed to them.

I am unable to see how the payment of the portion of the debts and other charges remaining after applying the moneys in bank and the moneys due on notes, out of his other personal estate, including these shares could materially interfere with the management or business of these works. It would simply take from the legatees of these shares a very small proportion of their legacies and would not in any manner interfere with the business. I think the intention is clear from the will and the surrounding circumstances that the testator desired his debts, funeral expenses, expenses of administration and the amount required to provide the monuments and care of cemetery lot to be taken out of his moneys in bank and out of the amounts due him upon notes, and if these were not sufficient that the ordinary rule of law should apply and the debts and expenses remaining should be paid out of his other personal property.

The interlocutory judgment should be affirmed, with costs.

Interlocutory judgment unanimously affirmed, with costs.  