
    Franklin A. Rowe et al., Executors, etc., v. Hannah M. Lansing et al.
    
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed July 6, 1889.)
    
    "Will—Legacy nr lieu oe dowse—Consteuction.
    A testator gave to his wife the use and' income during her life of two farms, also an annual allowance “in lieu of dower and other statutory claims,” to he made out of personal estate. The income from the contemplated source was insufficient to pay the annuity, on account of a failure in his estimates. Held, that the income devised did not abate for that reason, but is to be paid as directed out of the personal estate, tire principal to be applied to that purpose, if the income be insufficient.
    Submission upon agreed statement of facts without action.
    The facts agreed upon are, that Wendell Lansing died May 15, 1887, at his residence in Keesville, Essex county, having previously made and published his last will and testament, whereby, after provision for debts and expenses and for a monument not to cost more than $700, he provided as follows:
    
      “ I give and devise to my wife, Hannah M. Lansing, the use and income of thej house and lots I now own and occupy, situate on Eiver street in the village of Keesville, Essex county, N. Y., and also the use and income of my farm, known as the “ Brewer place,” situate in Chesterfield in said county, to have and to hold the same to her during her natural life.”
    He then provided that upon and from the death of his said wife, her mother, Mary Tuttle, should have the use and income of the same house and lot and farm, during her natural life. He authorized his executors, in their discretion, to sell the said farm and invest the proceeds and pay the income from the proceeds to his widow during her life, and upon and from her death to her mother, Mar/ Tuttle, during her life. “The provisions of this will” for his widow were declared to be in lieu of dower and other statutory claims. He then gave legacies to his children aggregating $4,400, directing them to have preference and priority over any other gift or legacy. He then gave to his widow, Hannah M. Lansing, the use during her natural life of the farming implements, tools, team, cattle and stock on his said farm to an amount not to exceed $1,000. Then he made this provision: “ Ninth. I also direct my said executors to pay my said wife, Hannah M. Lansing, annually, during her natural life, the sum of $100, the said sum of $100 to be paid to my said wife in each and every year after my decease as long as she shall live.”' He then gave' all the residue of his estate to his son, Abram W. Lansing, and appointed the plaintiffs his executors.
    All the legatees and devisees named in the will survived the testator.
    The will was duly probated; the plaintiffs, as executors, entered upon their duties. Out of his personal estate, consisting of $6,250, they paid testator’s debts in full, except a mortgage of $1,100 on said farm, and also paid the $4,400, legacies to his childeren, and erected a monument at a cost of $275. They sold the said Chesterfield farm for $2,243, net proceeds, and invested that sum, sold the farming implements, etc., for $705.80, net proceeds, and invested that, sum and paid the widow $100, being one year’s annuity; then, on January 21, 1889, had their accounts judicially settled by the surrogate, and thereupon it was determined that over and above the two sums invested, namely, $2,243 and $705.80, there remained only $29.83, applicable to raise the annuity of $100 per year, unless the same should be paid from the principal sums invested as aforesaid, or by incumbering the house and lot in Keesville, worth $600, occupied by the widow, under the will. There was no change in the testator’s circumstances between the date of the will and his death. The $475 saved in the cost of the monument, probably equalled all shrinkage.
    The question submitted to the court is whether the $100* directed by the ninth clause of the will to be paid the widow annually during her life, shall abate or be paid out of the corpus of the estate invested, or out of the house and lot or both.
    
      F. A. Rowe, for widow; R. L. Hand, for residuary legatee and devisee.
   Lakdok, J.

I incline to the opinion that the testator intended that the payment to his widow of the $100 annually during her life, should be made as directed out of his personal estate, the principal to be applied to that purpose, if the income should fail.

The testator did not say it should be paid out of income; he pointed out no principal from which to raise it. He suggested no contingency. He declared the provisions of the will to be in lieu of dower, and other statutory claims of the widow. All the provisions of the will in favor of his widow are made upon consideration of her electing to accept them in place of the provision made for her by law.

These provisions are the purchase price or value which the testator put upon her legal claims. Isenhart v. Brown, 1 Edw. Ch., 411; Colev. Niles, 3 Hun, 326; Williamson v. Williamson, 6 Paige, 298; Flynn v. Croniken, 9 How., 214. Sucha legacy does not abate. Id. The. payment of this annuity will be at the expense of the residuary estate. That is devised to his son Abram. There is no suggestion that it is to be preferred to the annuity, and if we compare this residuary devise and bequest with the pecuniary bequests to the testator’s five children, of whom Abram was one, we obtain a suggestion beyond what the terms “rest and residue ” imply; that the residuary devise and bequests must abate to any extent necessary-to protect the others. The testator says the pecuniary legacies to his five children “ shall be paid * * * in preference and priority to any other gift or legacy.” Thus, it is seen the testator contem-plated the possibility of some failure in his estimates, and with that in mind he guaranteed some of his legacies, then provided for his wife, and bestowed the possible residue.

The case of Delaney v. Van Aulen (84 N. Y., 16), is cited in opposition to the views above expressed. In that case the annuitant was not the widow; the clear purpose of the will was that the annuity should be paid from rents and income; they were ample at first, but in “ the mutations of affairs ” they failed to be sufficient. There, as here, it was the question of the testator’s intention, and the court held that the will made no other provision to pay the annuity than from rents and income. The condition of the estate at the time of the testator’s death repelled the presumption that he had any intention otherwise to provide for it. In Pierrepont v. Edwards (25 N. Y., 128), the annuitant was the widow; her annuity was expressly charged upon the income, but that failing, payment was directed out of the corpus of the estate.

Respecting the fund from which the annuity must be paid, it is plain, however, that it must be confined to the §705.80 realized from the sale of the farm implements. The testator devises and bequeaths, upon the death of Mrs. Lansing, the use and income of the house and lot and farm to her mother, Mrs. Tuttle, during her life. This is a clear intimation that the corpus of the house and lot must not be impaired to pay the annuity, and Mrs. Lansing must be understood to accept the provisions of the will with this restriction.

Judgment is directed in accordance with these views, with costs to the parties out of the funds of personal estate.

Learned, P. J., and Ingalls, J., concur.  