
    William B. Briggs, by Guardian, Resp’t, v. Peter D. Carroll, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed January 11, 1889.)
    
    1. Will—When legacy a charge on real estate.
    A testator gave and bequeathed certain legacies which he directed to he paid after the payment of his debts and within a specified time, and thus disposed of the residue of his estate without distinction between real and personal property. His personal estate, at the time of making the will, was insufficient to pay his debts and the legacies, which fact must have been known to him. Meld, that in such case the legacies will be charged on the real estate, the personal estate being exhausted.
    2. Practice—Defect of parties defendant—Code Civ. Pro., § 499.
    An objection that the executrix of a will should have been made a party defendant, if ever available, is waived by not being taken either by demurrer or answer.
    Appeal from a judgm ent entered on the findings and decision of the judge at special term.
    
      M. A. Leary, for app’lt; C. S. Baker, for resp’t.
   Dwight, J.

The action was tó charge a legacy on real -estate, and judgment was given for the plaintiff. The text of the will, so far as important to the present inquiry, was as follows:

“First. After all my debts are paid and discharged, I give and bequeath to my wife Lydia two thousand five hundred dollars ($2,500), to be accepted and received by her in lieu of dower. ■ To my son, Charles W. Best, the sum of ($1,500) fifteen hundred dollars. * * *

“Second. I give to my grandson, W. B. Briggs, the sum of five hundred dollars ($500), which, said several sums of money or legacies I direct and order to be paid to the respective legatees within one year after my death.

Third. I give and devise all the rest, residue and remainder of my real and personal estate, goods and chattels of what nature and kind soever, to my four children * *. * to be divided equally between them.” * "x" *

At the time of making his will the testator was the owner of the real property described in the complaint; which was unencumbered. His personal property at the time was of about the value of $1,500, and consisted wholly of farm stock and implements and products of the farm. At the-time of his death he was the owner of the same real estate, still unencumbered, and of an additional parcel of thirty-seven acres, on which he had paid about $700, and which was encumbered for about $1,700, the balance of the purchase money.

His personal property, at the time of his death, was of about the same value, and of the same chai’acter and description as at the time of the execution of the will. His indebtedness at the time of his death, aside from that secured by mortgage on the thirty-seven acres, exceeded the sum of $2,000; while the legacies, directed to be paid within one--year after his death,-and before the division of the residuary estate, aggregated the sum of $4,500.

These facts, to which the reasoning of the court in the case of McCorn v. McCorn (100 N. Y., 511), seems to be fully applicable, necessarily lead to the same conclusion as was reached in that case. It is unnecessary to repeat the reasoning referred to. It has been substantially employed in several cases, both before and since that of McCorn. See Hoyt v. Hoyt, 85 N. Y., 142; Scott v. Stebbins. 91 N. Y., 605; Brill v. Wright, 8 N. Y. State Rep., 814; In re Pettit, 13 id., 184; Adkins v. Adkins, 13 id., 193. All of which may be distinguished from the cases of Lupton v. Lupton (2 John. Ch., 614), and Reynolds v. Reynolds (16 N. Y., 257).

The decision in Lupton v. Hupton turned wholly on the terms of the will, the fact appearing that the personal property was amply sufficient to pay debts and legacies, and that the executor had actually received the legacies in question, and afterwards wasted them. And in .Reynolds v. Reynolds the final clause of the will was a devise and bequest of all his real and personal estate, and not of a residue or remainder.

From the above, and many similar cases, the doctrine seems to be fairly deducible, and thus to be established, that where the elements found in this case concur, viz.: insufficiency of personal estate at the time of the making of the will to pay debts and legacies, which must have been known to the testator; legacies given after the payment of debts and directed to be paid within a time specified; then a disposition of the residue of the entire estate without distinction between real and personal property; no devise of real estate, except of such as may fall into the residue, in ■such cases, the legacies will be charged on the real estate, the personal estate being exhausted.

None of the grounds for the motion to dismiss the, complaint seem to have been tenable. The objection that the executrix -of the will should have been made a party defendant, if it was ever available, was waived by not being taken either by demurrer or answer. Code Civ. Pro., § 499. The objection that the complaint should have embraced .all the lands owned by the testator at the time of his death, is answered by the suggestion that •the thirty-seven acres had been first alienated by the parties taking under the will, under the familiar rule in equity that parcels of land, sold subject to the same liens or encumbrances, .will be charged therewith in the inverse order of .their alienation.

The judgment was correct, and must be affirmed.

Judgment affirmed, with costs.

All concur, except Bradley, J., not voting.  