
    Charlotte Meyer, Individually and as Executrix, etc., Resp’t, v. James P. Cahen et al., as Executors, etc., App’lts.
    
    
      (Court of Appeals,
    
    
      Filed November 27, 1888.)
    
    1. Will—Construction of.
    By the second paragraph of his will, the testator gave to his wife, the plaintiff herein, his certain house and lot, together with certain personal property, which was to be received in lieu of dower. By the third paragraph, he bequeathed to F. $100,000. At the time of the execution of the will, and at the time of the death of the testator, there was a mortgage executed by the testator and a former wife upon the aforesaid house and lot, which mortgage was foreclosed after testator’s death, resulting in a deficiency. The plaintiff accepted the said property, in. lieu of dower, before the mortgage was foreclosed as aforesaid. Held, that under 1 R. S., 749, § 4, the widow should not be allowed the value of the said house and lot; that the fact of her having accepted the property in lieu of dower did not entitle her to special and favorable consideration; that she had the house and lot by virtue of the devise in the will of the testator.
    2. Same—Effect of clause directing raiment of debts
    The fact that the testator in the first clause of his will directed the payment of his debts as soon after his decease as conveniently could be done, is not' material. Such a clause is usually a purely formal one, and works no change in the.disposition of a testator’s property.
    3. Same—When legacies ratable.
    The testator in the fourth clause, provided that all the rest, residue and remainder of his property, real and personal, etc., should be converted into money, and he gave, devised and bequeathed unto his executors, all of such property for the purposes .mentioned in his will. At the time of hia decease, he had in the firm of M. & Co., twenty thousand'dollars, and he provided in his will that it should remain there, at six per cent interest, if his partner should consent to it, and that the interest was to go to his wife as long as she remained unmarried. The balance of his estate he directed to be invested by his executors in interest-bearing securities, theinterest to be paid to his wife as long as she remained unmarried. He left no issue living at the time of his death. By the fifth clause he provided, “ In the event of the marriage, or upon the death of my said beloved wife “* * * ” and there be no issue of my said marriage “ * * *” then I direct and empower my said executors "* * *” to convert all the rest, residue and remainder of my property and estate into money, divide the same into six equal parts or shares, and to distribute the same in the manner following.” He then provided for giving legacies to the individual defendants herein. By the sixth clause he directed his executors as soon as convenient after his decease to pay to the parties named in the fifth clause, a certain proportion of the legacies bequeathed to them, making in all eleven thousand dollars, and “ such several payments to be on account of, and to be deducted from any share or proportion of my estate which they respectively shall be entitled to receive under paragraph 5, of this instrument.” The estate was worth about thirty thousand dollars, and if the eleven thousand dollars of legacies were paid at once, there would be only the balance of fourteen thousand dollars, upon which the widow was to receive interest during her widowhood. Held, that the testator did not intend that the payment of -these legacies or any portion of them should be made during the time when he had already specifically and repeatedly provided for the payment of the whole interest upon all of his estate, with the exeception of the one thousand dollar legacy above mentioned, to his wife during her widowhood.
    Appeal from a judgment of the supreme court, general term, first department, affirming a judgment rendered at the special term, construing a will.
    
      E. C. Boardman, for app’lts; M. L. Townsend, for resp’t.
    
      
       Modifying 4 N. Y. State Rep., 612.
    
   Peckham, J.

The defendants herein appeal from a judgment of the general term affirming that of the special term construing the will of Julius R. Meyer, who died on the 20th of May, 1884. The defendants Oahen were appointed executors and the other defendants are legatees under the will.

By the second paragraph of his will the testator gave to his wife, the plaintiff, his house and lot in West Fifty-third street, New York, together with certain books, plate and other personal property which was to be received in lieu of dower.

By the third paragraph he bequeathed to Paula Friedheim the sum of §1,000, in trust to be held by the executors of his will until she arrived at the age of twent-one years, or married.

At the time of the execution of the will, and at the time of the death of the testator, there was a mortgage for $12,000, executed in 1869 by the testator and a former wife upon the house and lot in Fifty-third street. On the 10th of September, 1885, this mortgage was foreclosed and the premises sold, resulting in a deficiency of $2,184, for which sum judgment against the estate was perfected.

The value of the house and lot was found to have been $12,000 at the time of the death of the testator, and he having, by his will, given the premises to his widow, she claims that she should be paid that amount from the estate. The defendants object to this construction, and claim that she took simply the equity of redemption in the premises.

The courts below have decided this question in favor of the plaintiff. In this we think they erred. We think the case comes clearly under 1 Revised Statutes, 749, § 4, which reads as follows: “ Whenever any real estate, subject to a

mortgage executed by an ancestor or testator, shall descend to an heir or pass to a devisee, such heir or devisee shall satisfy and discharge such mortgage out of his own personal property, without resorting to the executor or administrator of his ancestor, unless there be an express direction in the will of such testator that such mortgage be otherwise paid.”

We can give no force to the arguments urged on the side of the widow as against the plain commands of this statute. We do not see that the provisions of 1 Revised Statutes, 740, § 4, in regard to the right of a widow to be endowed out of lands mortgaged before her marriage as against all but the mortgagee or those claiming under him, throw any light on the case or take it out of the application of the above quoted section of the statute. Nor do we think the argument for the widow is strengthened by the claim that she having accepted the property in lieu of dower is entitled to special and favorable consideration in all questions the same as if she was an actual purchaser for a valuable consideration.

That does not alter the fact that she takes by virtue of the devise in the will of the testator, and it does not take the case out of the operation of the statute in question which is perfectly plain, unambiguous and effective, and covers at all points the case of the widow herein.

The fact that the testator in the first clause of his will directed the payment of his debts as soon after his decease as conveniently could be done, we do not regard as material. Such a clause is usually a purely formal one and works no change in the disposition of the testator’s property. The statute provides that all debts and funeral expenses shall be paid first, and a direction in the will to do what the law requires to be done can throw no material light upon the meaning of the will.

We think the contention of the defendants is correct and that the widow should not be allowed the value of the real estafe as claimed by her.

One other question arises under this will. The testator in the fourth clause provided that all the rest, residue and remainder of his property, real, personal and mixed and wheresoever situated, of every character and nature whatsoever, should be converted into money. And he gave, devised and bequeathed unto his executors all of such property in trust for the purposes mentioned in his will. At the time of his decease he had in the firm of J. R. Meyer & Co., of New York, $20,000, and he provided in his will that it should remain there at six per cent interest if his partner should consent to it, and that interest was to go to his wife as long as she remained unmarried. The balance of his estate he directed to be invested by his executors in interest bearing securities, the interest to be paid to his wife as long as she remained unmarried. He then provided for his issue living at the time of his death, but as he left none it is not necessary to refer to that provision.

By the fifth clause he provided as follows: “In the event of the marriage or upon the death of my said beloved wife Charlotte Meyer, and there be no issue of my said marriage, or in case there be issue and such issue shall die before attaining the age of twenty-one years, then I direct and empower my said executors hereinafter named, or the survivor or survivors of them, to convert all said the rest, residue and remainder of my property and estate into money, divide the same into (6) equal parts or shares and to distribute the same in the manner following, to wit: ”

He then provided for giving legacies to the individual defendants herein, and by the sixth clause directed his executors as soon as conveniently after his decease to' pay to the parties named in the fifth clause a certain proportion of the legacies bequeathed to them, making in all $11,000, and continuing the testator said: “ Such several payments to be on account of and to be deducted from any share or proportion of my estate which they respectively shall be entitled to receive under paragraph fifth of this instrument.”

It is found as a fact that the debts of the testator at the time of his death, including funeral expenses, but excluding the amount secured by the bond and mortgage, did not exceed the sum of $2,000, that in addition to the $20,000 which he had in the firm he had $10,000 of personalty which has come into the hands of the executors. It is conceded that the $1,000 bequeathed to Paula Eriedheim is to be paid, before the payment to the widow excepting under the second clause of the will, and the defendants claim that the payment of legacies mentioned in the sixth clause of the will should be made from the personal estate before the widow should be paid the interest on any balance that might exist.

The testator left, as stated, $20,000 in his firm and $10,000 of other personalty. Out of this is to he paid $2,000 of debts, a $1,000 legacy, $2,181, the deficiency judgment, and if the defendants” are right, $11,000 more to them before the widow is to receive anything, making over $16,000 to be deducted from the estate of $30,000, and upon the balance only was the widow, upon this construction, to receive interest during her widowhood. The plaintiff, on the other hand, claims that the legacies are to be postponed in their payment until her remarriage or death.

The will is undoubtedly ambiguous and to some extent inconsistent and doubtful in its meaning. In the first part of the will, with the exception of the $1,000 legacy, he provides for the gathering together of his whole estate, leaving the amount in his firm to remain at six per cent interest, and the interest on the whole is to be paid by the very terms of the will frequently repeated, to his wife “as long as she remains unmarried, and if she does not marry again to be paid to her until her death.” The scheme "of the will—the main intention of the testator to be gathered from its perusal, is that the wife shall enjoy the estate during widowdood in all the property .of which he died seized, with the exception of the $1,000 legacy. And in the fifth clause, where he is about to provide for the legacies to the defendants, the provision is plainly made that the executors are to make such payment only in the event of the marriage or upon the death of his wife. Up to this point all is clear sailing.

But the sixth clause, by which he directs his executors, as soon as conveniently may be after his decease, to pay unto these various legatees a'certain proportion of the amount therein named of their legacies, is utterly at war with everything that has preceded it, if it be held to mean that the payment of these proportions of legacies is to he made during the life-time and widowhood of his wife. We are to' harmonize as best we can the various provisions of this will and determine so far as possible the meaning which the testator had at the time he executed it.

It has been well said by Earl, J., that “in the construction of wills as in the determination of questions of fact, and other questions of law, it is not to be expected that absolute certainty can always be attained. Upon questions of fact it is sufficient that there is a balance of evidence or probabilities in favor of one side or the other of the dispute, and upon such balance courts will rely in deciding the weightest issues. So in the construction of written instruments, courts will scrutinize the language used, and however confused, uncertain and involved it may be, will give it that construction which has in its favor the balance of reasons and probabilities, and will act upon that. The intent of a testator may sometimes be missed, but such is the infirmity of language and human judgment that such a result is sometimes unavoidable.” Weeks v. Cornwell, 104 N. Y., 325; 5 N. Y. State Rep., 632.

We cannot escape the conviction that the testator never intended that the payment of these legacies, or any portion of them, should be made during the time when he had already specifically and repeatedly provided for the payment of the whole interest upon all of his estate with the exception of the $1,000 legacy above mentioned to his wife during her widowhood. What other construction can be given consistent with the language used and the main purpose and intent of the testator ? It is suggested that the testator might have had in his mind the death of the widow before his own, and that in such event the payments under the sixth clause would be made as soon after his death as conveniently could be and within the year ordinarily allowed for the payment of legacies. Or that he might have meant that after the death of the widow the payment should be made as soon as conveniently could be under the sixth clause and the balance under the fifth.

The language does not give, it must be confessed, any very strong color looking to the correctness of either of these interpretations, and yet we think we should come much nearer carrying out in the main the intention of the testator, as evidenced by the language used in this will, by construing the language in the sixth clause tó mean one or the other of the two suggested interpretations, rather than to interpret it as providing for the payment of the $11,000 during the life-time and widowhood of his wife, and thus overthrow what is seen from the various provisions he made in regard to it was the main intention of the testator, namely, provision for his wife during her widowhood to consist of the use of all of his property during that time, and the fee simple of his house and -lot in Fifty-third street, subject to the mortgage, and after deducting the $1,000 legacy above referred to.

These views lead to a modification of the judgment of the general and special terms, by striking out from the fifth paragraph of the judgment, as entered at special term, all the provisions relating to the payment of the $12,000 to the plaintiff, Charlotte Meyer, individually, or at all, and it should be adjudged that the plaintiff is not entitled to such payment, or any part thereof.

As thus modified, the judgment should be affirmed, without costs to either party.

All concur.  