
    David Collin et al., Ex’rs, Resp’ts, v. A. Foster Wilcox et al., App’lts.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed September 30, 1892.)
    
    Will—Legacies.
    By testator’s will, among other things, he gave the sum of $1,000 to each of his grandsons, to be paid them on coming of age, and the residue to his children, his daughters to have a life estate only, with remainder to their children. The legacies were directed to be first paid out of the personal and real estate, and the executors were authorized to sell the real estate. Several accountings were had, at which such legacies were directed to be paid when due, and the executors directed to retain the necessary amounts. The managing executor gave to the others a bond for the payment of such legacies to the grandsons, secured by a chattel mortgage arid one on real estaté, and afterward became insolvent, and the executors were unable to collect on said securities sufficient to pay said legacies. From the rest of the estate a certain amount has been collected but not sufficient to make the daughters’ shares equal to what the sons have received, exclusive of the real estate undisposed of. Held, that the executors had no right to limit the lien of the legacies, that their act in setting apart the securities did not exonerate the rest of the estate, and that the grandsons could reach the general fund in preference to the claims of the residuary legatees to apply the same to equalize the residuary payments.
    Appeal from certain portions of a judgment entered in Onondaga county on August 18, 1891, upon the decision of the Onondaga special term, September, 1890.
    The action is brought for the construction of the will of Asel Wilcox and for directions to the plaintiffs as to the administration of the estate.
    
      Lyman & James, for app’lts; N. R. Chapman and W. S. Andrews, for resp’ts.
   Merwin, J.

—On the 5th of June, 1867, Asel Wilcox, of Manlius, in Onondaga county, died, leaving a will and codicil which were duly proved on June 27, 1867. He left two sons, Franklin- and Asel F., and three daughters. By the ninth clause of the will he gave to his grandson Asel, the son of his son Franklin,, one thousand dollars, to be paid to him upon his arrival at the age of twenty-one years, with interest from one year after his death, and he also provided that “ if he, said Franklin, shall have any other son or sons, or my son Asel F. shall have any son or sons, lawful heirs, before a final distribution of my property, I give and bequeath unto each such grandson the sum of one thousand dollars, to be paid him without interest on arriving at the age of twenty-one years.” By the tenth clause, he gave and devised all the rest and residue of his estate, real and personal, to his five children, to be divided equally between them, the daughters to have only a life estate with remainder over to the children of each. By a prior provision, he directed that his debts and the specific legacies thereinafter named should be first paid out of his personal and real estate. The executors were authorizéd tosed and convey any part or all of his real estate and invest the avails on good landed security by bond and mortgage, but they should not be compelled to sell any of the real estate under five years nor his Sodus Bay estate under ten years from his death.

The appellants upon this appeal are the five sons of Asel F. Wilcox, and the questions here relate to the remedy they have for the collection of their legacies. One was of age when this action was commenced, one has since become of age, and the others are still minors.

The executors named in the codicil were the plaintiffs and Asel F. Wilcox. The testator provided that the latter should have chief charge of the estate. On the 8th August, 1878, an accounting was commenced before the surrogate of Onondaga county by Asel F. Wilcox, as sole managing executor, of his acts and transactions to that date. This accounting was continued from time to time to-June 25, 1877, when a decree was made as of August 8, 1873, stating and allowing the accounts of the executor to that date. By this decree it appears that there was then in the hands of the executor, after crediting him with all payments made, the sum of $51,636.43. Certain payments to Franklin Wilcox upon his share were authorized, and the executor was also authorized to retain certain sums on his own share. He was directed to retain and hold in trust such sum of his own share as shall be necessary to pay one-fifth part of all the legacies to the grandsons of the testator born before the final distribution of the estate, and also to retain and hold in trust so much of the share of Franklin as may be necessary to pay one-fifth of all said legacies. He was directed “ to pay the several legacies of $1,000 each to said grandsons out of the principal of the estate as such grandsons shall respectively arrive at the age of twenty-one years,” and it was provided that in case of diminution of the principal of the estate by the payment of any of those legacies each share would bear and contribute one-fifth of such diminution. He Was also* directed to keep such sums as may from" time to time belong to the respective shares of the daughters “ securely invested, paying over the net income to them, respectively, annually during their natural lives, and to finally distribute to the children of each daughter of the testator the principal money belonging to such share, the same being one equal fifth part of the residuum of the estate after paying the specific and general legacies provided in said will.” Special provision was made in the decree for the payment of the legacy to Asel 0. Wilcox, the oldest grandson.

On the 23d July, 1877, a second accounting was commenced before the surrogate concerning the acts and transactions of said executor from August 8, 1873. A decree was entered oh October 8, 1877, stating and allowing the account to the time of such accounting. At this time there was in the hands of said executor in cash and securities belonging to the estate, including the sum of $2,060.89 of .Franklin Wilcox’s share, and the same amount of the share of the executor, set apart and reserved by the executor for the payment of the grandsons’ legacies, the sum of $31,-057.55. By the decree above referred to it was directed “ that the above sums, amounting to $31,057.55, be held in trust for the purposes mentioned in said will, as adjudged in said former decree in this matter; and that annually, or oftener, the net income thereof be paid to the persons entitled to the same, according to the provisions of said will.”

At the time of the second accounting there was found to be and was in the hands of Asel F. Wilcox, the managing executor, the sum of $7,347.55, which was uninvested and unsecured, and was a part of the principal of the estate. On the 16th December, 1878, Asel F., for the purpose of securing the payment of this sum and interest, executed to all the executors, being said Asel and the plaintiffs, his bond conditioned for the payment of $1,000 of the principal to each of the grandsons entitled to a legacy of that amount, or their representatives, when such legacy should be payable, the balance to the other parties in interest. As collateral security for three-fifths of the amount, a chattel mortgage was given, and for two-fifths a real estate mortgage, which was also to be collateral to the chattel mortgage. It is found by the special term that the executors, in taking this bond and the mortgages, “intended to and did thereby sequestrate and set apart from the principal of said estate the said sum of $7,347.55 as a fund for the payment of the legacies ” to the grandsons. Asel F. was then solvent and the property covered by the mortgages was then of value sufficient to furnish ample security for the payment of the legacies. At this time there were six grandsons, or their representatives, that would in the future be entitled to legacies. " Of these grandsons one was the son of Franklin Wilcox and five were the sons of Asel F. Wilcox. Thereafter and on December 6, 1879, another son, the appellant Willard T. Wilcox, was born to said Asel F.

Since 1879 Asel F. has been insolvent and the executors are unable to collect upon said bond and mortgages sufficient to pay the legacies in full None of the legacies to the sons of Asel have been paid except the defendant A. Foster Wilcox' has received a part.

Asel F. Wilcox withdrew from the active management of the estate in 1880 and turned over to the plaintiffs, his co-executors, all the property and securities of the estate except the chattel mortgage. Since then the plaintiffs have set apart and held in trust for the shares of the daughters under the residuary clause,, securities belonging to the estate to certain amounts, but not sufficient to make the shares of the daughters equal to what the sons have received into the sum of $1,384.37 for each share. Aside-from the property so set apart, there is in the hands of the executors and treated as unappropriated property about the sum of $2,000 of the personal estate, and also real estate undisposed of to the value of from $4,000 to $5,000. Aside from the real estate there is not enough to make the shares of the residuary legatees equal.

It seems to be conceded that the power to sell real estate was by implication a direction to sell. If so, there was an equitable conversion of the real estate into personalty and this is to be borne in mind in construing the will.

I do not understand that the appellants make any claim upon the securities already set apart by the plaintiffs to the shares of the daughters above referred to. The court below in the seventh finding of law found, as matter of law, that they were to be treated as payments to such shares, and to belong absolutely to the daughters and the remaindermen. . This finding is not excepted to. The claim, therefore, of the appellants refers to this unappropriated personal property and the undisposed of real estate. These items are understood to be amply sufficient to provide for the deficiency of the legacies, but not enough for that deficiency and also to make up the daughters’ shares equal to what the sons have received. . .

It was decided by the special term that the grandsons, in the collection of their legacies, were limited to the security furnished by the bond and mortgages of December 16, 1878, and that if enough could not be realized from them to pay the legacies in full, the deficiency could not be made good out of the general estate Whether this conclusion of the special term is correct is the main question here.

By the will, there was no provision for setting apart a fund for the payment of these legacies. They were made,a charge generally upon the estate. In the first decree, there was a provision that these legacies as they became due should be paid from the principal of the estate and when so paid, each share to be diminished accordingly. No fund was directed to be set apart for that special purpose. The • executor was directed to retain and hold in trust so much of his own share as would be necessary to pay one-fifth of the legacies, and a like amount from the share of his brother 'Franklin. The entire amount of the other shares he held, as the daughters were only entitled to the income. The second accounting shows that the executor had retained about $2,000 from his own share and the smea. from that of his brother. The decree directed the whole fund to be held in trust for the purposes mentioned in the former ■decree. There was no setting apart of a fund for the legacies. There was no direction of the court as to the amount or kind of .any investment for that purpose.

So that, for aught I see, the question whether the investment ■of December, 1878, is to have the effect that has been given to it depends upon whether the act of the executors in setting apart this fund is sufficient of itself to exonerate the balance of the estate from the charge which concededly was upon it up to that time.

It is not found, nor does the evidence show, that the security taken was one in which under the law the executors would have had the right to invest a trust fund. That being so, the rule laid down in Leitch v. Wells, 48 N. Y., 585, would be somewhat applicable. It is there said that, in case a fixed sum is bequeathed to executors in trust to pay the income to one party and at his death divide the principal among others, the executors ■cannot, without the consent of the beneficiary, or, in case they are infants without an order of court, set apart and appropriate bank stocks to the satisfaction of the trust and release the residue ■of the estate from its liability to perform the trust.

In 2 Williams on Exrs., 6 Am. ed., 1511, it is said: When a fund has been appropriated for the payment of an annuity given by a will, a question may arise whether the legatee is to suffer the loss consequent on the partial failure of the fund. In cases where the annuity is a charge upon the whole personal estate, it seems clear that the executor cannot affect the legatee’s right to the entire annuity by any appropriation,” and many cases are referred to. If an estate shrinks, whether by devastavit of the executor or otherwise, the loss primarily falls upon the residuary legatee. Baker v. Farmer, L. R., 3 Chan. App. Cases, 537; 2 Williams Ex’rs, 1465; 13 Am. & Eng. Encyc. of Law, 132.

We are of the opinion that the executors had no right to limit the lien of the legacies and that their act in setting apart the bond and mortgages did not exonerate the balance of the estate •and cannot be deemed the equivalent of a payment of the legacies. It follows that the appellants are right in their position, that they can reach the general fund in the hands of the executors in preference to the claims of the residuary legatees to apply the same to ■equalize the residuary payments.

It was apparently claimed by the plaintiffs at the trial that the ■appellant Willard T. Wilcox was not entitled too legacy upon the ground that upon the second accounting there was a final distribution of the property and he was not born until December 6,1879. The special term held to the contrary and no appeal is before us from that part of the judgment It is not necessary therefore to consider the question.

. It follows that the judgment should be modified so as to allow the appellants payment in full of their legacies from any of the testator’s estate remaining in' the executors’ hands, and not covered by the seventh finding of law. The appellants should also have-costs of the action and of the appeal payable from the estate.

Judgment modified, as stated in the opinion and as modified affirmed, with costs to the appellants of the appeal and of the-action payable out of the estate. Judgment to be settled beforeMerwin, J.

Hardin, P. J., and Martin, J., concur.  