
    In the Matter of the Estate of Rachel M. Spencer, Deceased.
    
      (Surrogate’s Court, Cattaraugus County,
    
    
      Filed May, 1894.)
    1. Legacy — Abatement.
    Where, in a will made a short time before testator’s death, the realty and personalty are blended in the residuary clause and the executor is given power to sell all the property if necessary to fulfil the bequests, general legacies do not abate because of insufficiency of the personalty to pay them in full.
    2. Executors — Power or sabe.
    Where the realty and personalty are blended, a power given the executor to sell all the property if necessary to fulfil the bequests authorizes him to sell the realty.
    
      Proceedings upon intermediate accounting and for a construction of the will of deceased.
    W. K. Harrison, for executors, legatees and guardian ad litem; John E. Murphy, general guardian of residuary legatee, in person.
   Davie, S.

The testatrix died on the 29th day of December, 1892, leaving a will bearing date on the twenty-first day of the same month, which was admitted to' probate on the 6th day of February, 1893, and letters testamentary thereupon issued to James L. West, executor.

By the terms of the will testatrix directed the payment of her debts, funeral charges and expenses of administration, and bequeathed the sum of $200 to one sister, and $100' to each of two other sisters; then follows a bequest of $200' to Nellie O’Dell, a niece; $100 to Spencer Quackenbush, a nephew, and $50 to each of six other nieces and nephews. She then directs her executor to retain the sum of $200' out of her estate, invest the same and expend the interest arising from such investment in keeping her cemetery lot in good condition, and further provided that “ if it is not necessary to' expend the whole amount of the interest on my lot in said cemetery, then the balance to be used in beautifying and in keeping the cemetery in good condition, as the proprietors of said cemetery may direct.” The final disposing clause of the will is as follows: “All the rest and residue of all my property, both real and personal, I give and bequeath to Ella Quackenbush, absolutely; likewise, I make, constitute and appoint James E. West, with full power to sell all my property, if necessary to, to fulfill my above bequest, executor,” etc.

It appears from the account filed that the personal estate of testatrix remaining after the payment of the debts, funeral expenses and costs of administration is but little more than half enough to pay the general legacies, and the questions now presented for determination are: First, must the general legaeies abate proportionately in consequence of the insufficiency of the personal estate to pay them in full, or can resort be had to the real estate for full satisfaction of the same; and, second, is the executor empowered by the terms of the will to sell and convey the real estate ?

The personalty is not only the primary fund, but the only one liable for the payment of the general legacies unless they are charged on the realty by express direction, or by necessary implication; such a charge, however, may operate in aid of the personalty, furnishing an additional fund for the payment of legacies upon exhaustion of the personalty, or where the two species of property are blended together by the terms of the will, rendering them both liable for payment of legacies pari passu. 13 Am. & Eng. Ency. of Law, 110.

It will be observed that the residuary clause of the will deals with both the real and personal estate alike; the courts of this State, after much vacillation, appear now to take the position that this blending of the real and personal estate in the residuary clause is not sufficient in and of itself to charge the realty, yet it is a circumstance to be taken into- consideration in ascertaining the testator’s intention, and in connection with other circumstances may be controlling. Hoyt v. Hoyt, 85 N. Y. 142; Scott v. Stebbins, 91 id. 605; McCorn v. McCorn, 100 id. 511; Anderson v. Davison, 42 Hun, 431.

A charge will also be implied if the language of the will indicates that the testator intended the legacies to be paid in full, knowing that her personal property was insufficient for that purpose, o-r if it appears that she had her real estate in mind when determining the amount of her various bequests, although such real estate be devised (Le Fevre v. Toole, 84 N. Y. 95; McCorn v. McCorn, 100 id. 511) ; and extraneous circumstances may be considered in aid of the terms of the will. Brill v. Wright, 112 N. Y. 134.

In the case at bar the will was made only a few days prior to the death of the testatrix; hence no change occurred in the condition of her estate between the execution of the- will and her death; her estate, aside from the real estate and a small amount of household furniture and wearing apparel, consisted -of money securities; testatrix was a woman of ordinary sagacity and business ability, and must be presumed to have comprehended the extent of her personal estate at the time of the execution of the will; the principal legatees are her sisters, while the residuary legatee is a niece; and there is. nothing in the •situation of the parties, as disclosed by the evidence, showing that this niece had any greater claim upon the bounty of the testatrix than her other relatives, especially her sisters; the claim that testatrix designed that the payment of the general legacies should be limited by the amount of the personal property is simply an imputation that the testatrix, desiring in view of approaching death to make some fair and reasonable disposition of her estate, designedly and intentionally incorporated in her will a series of legacies which were to a great extent meaningless and valueless; it seems much more reasonable to suppose that testatrix intended that the general legacies should first be paid in full, and that whatever might remain should go to the residuary legatee; there is nothing in this conclusion inconsistent to any extent with the phraseology of the will, and it is sustained fully and satisfactorily by the proof of the circumstances attending the execution of the will.

Having reached the conclusion that testatrix' designed to make the genera] legacies a charge upon her real estate in so far as the personal estate was insufficient to pay them, her further intention to clothe her executor with ample authority to carry out the provisions of the will by a disposition of all her estate is equally apparent; the terms of the will are entirely susceptible of that construction; she designates and appoints an executor “ with full power to sell all my property, if necessary to, to fulfill my above bequests; ” the will is not very artistically drawn, but the carelessness of the scrivener cannot be permitted to defeat the evident intention of the testatrix. Where upon examination of a will taken as a whole the intention of the testator appears- olear, but its plain and definite purposes- are endangered by inapt or inaccurate modes; of expression, tbe court may, and it is its duty, to subordinate the language to tbe intention. Phillips v. Davies, 92 N. Y. 204.

It must be held in this case tbat the; executor is clothed with ample authority to sell the real estate of testatrix and convert tbe same into money; tbat be should do- so in tbe course of bis. administration, and out of tbe proceeds arising from tbe sale of tbe personal and real estate pay tbe general legacies, and tbe residue, whatever it may be determined to be upon judicial settlement, to tbe residuary legatee.

A decree will be entered accordingly.  