
    Matter of the Probate of the Will of Jane Gasten, Deceased.
    (Surrogate’s Court, Kings County,
    February, 1896.)
    Will — Legacy — Ademption.
    The will in question gave to a church the sum of $25,000 for the purpose of paying off a mortgage on the church property. At the time the will was executed the mortgage amounted to that sum, but prior to the testatrix’ death it had been reduced by payments toward which she had' subscribed. Held, that the church was entitled to the whole amount of the legacy, less such amounts as testatrix had subscribed.
    Probate of will.
    William Gasten, for proponent.
    Burr, Coombs & Wilson, for the Classen Avenue Presbyterian Church.
    Campbell & Moore, for the Board of Missions for Freedmen, etc., residuary legatees. •
    James W. Glendenning, special guardian.
   Abbott, S.

Jane Gasten died on.the 22d day of November, 1895, leaving a last will and testament which was duly executed on the''7th day of June, 1890.

On the probate of the will, construction under section 2624 of the Code is sought of the “first” paragraph,, which reads as follows:

“ First. I hereby give and bequeath to the Classon Avenue Presbyterian Church, in the city of Brooklyn, county of Kings, and State of .New York, the sum of twenty-five thousand dollars ($25,000), for the purpose of paying off the mortgage on said church or the chapel belonging thereto, which wás assumed for the purpose of building said chapel.”

At the time the will was penned, in 1890, there was á mortgage of. $25,000' on said Classon Avenue Presbyterian Church, no part of which had been paid off. Subsequently, however, at various times, certain sums were paid on said mortgage, amounting in the aggregate to $11,000,' so that at the time of the decease .of the testatrix there-was due'and owing on said mortgage only the sum of $14,000 with some interest.

' The question to be. determined is,, whether, under the said “ first ” clause of the will, the said church is entitled to the whole legacy of ' $25,000, or to only so much thereof as will enable it, to pay off the mortgage.as it now stands.'

The. church, answering the petition for construction, alleges, among other things, “ that subsequently to the execution of the said will, the sum of .$11,000 was paid on account of the principal of the mortgage in said will- and said petitions referred to, of which payments the said Jane Gasten had knowledge and toward making which payments she subscribed- various amounts, yet, notwithstanding the said fact, the said Jane Gasten permitted her Said will to remain unchanged and unaltered.”

■ This allegation is not denied.

- The counsel for the church rest on this answer, and have not presented td the court any brief to elucidate their- view of the law.

The counsel for the. residuary legatees present an elaborate brief, contending that it was the expressed intention of the testatrix to give a legacy of $25,000, ór so much thereof, as might.be necessary, to pay off the mortgage as it should exist at the time her will took effect, or, in other words, that the amount named was descriptive only, and the clause “ for the purpose of paying off .the mortgage on the' church,” etc., serves as a limitation of the bequest as well as explanation of its purpose.

After careful consideration of the brief and the authorities cited therein, I was, at first, inclined to take this view, but subsequent independent research has convinced me that it is erroneous, and the proper disposition of, this question depends upon a different rule from any cited by the learned counsel.

I have been unable to find any case in this state bearing directly upon the construction of such a clause as this, but-in Jarman on Wills (5th ed.), vol. 1, p. 694, the following rule is laid down:

“We are to consider whether, in cases where words are added expressing a purpose for which the gift is made, such purpose is to be considered obligatory. Where the purpose of the gift is the benefit solely of the donee, himself, he can claim the gift without applying it to the purpose, and that, it is conceived, whether the purpose be in terms obligatory or not. Thus, if a sum of money be bequeathed to purchase for any person a ring, or a life annuity, or a house, or to set him'up in business, or for his mainténance and education, or to bind him apprentice, or toward the printing of a book, the profits of which are* to be for his benefit, the legatee, may claim the money without applying it or binding himself- to apply it to the specified purpose; and even in spite of an express declaration by the testator, that he shall not be permitted to receive the money. Apreece v. Apreece, 1 Ves. & B. 364; Dawson v. Hearn, 1 R. & My. 606; Ford v. Bately, 17 Beav. 303; Knox v. Hotham, 15 Sim. 82; Gough v. Bult, 16 id. 45; Webb v. Kelly, 9 id. 472; Barlow v. Grant, 1 Vern. 255. In Lockhart v. Hardy, 9 Beav. 379, it was held that a legacy to a devisee to pay off a mortgage debt on the estate'devised to him was held good, though the mortgage was foreclosed in the testator’s lifetime.

“ These cases rest on the principle that the court will not compel that to be done which the legatee may undo the next moment, as by selling the thing to be purchased or giving up the business.”

This rule, in my opinion, is the proper one to be applied in this case and the whole amount of the legacy should be paid to the church irrespective of the purpose.

I have no donbt that the principle of ademption applies to this legacy in so far as it has been reduced by the subscriptions of the testatrix toward paying off the mortgage, but it applies no further, as there can be no ademption by strangers. Roper on Legacies, 380.

I will order a reference in this matter to ascertain the amount subscribed and paid by the .testatrix toward the reduction of the church mortgage; and when this is ascertained, a decree may be presented providing for the ademption of' the legacy accordingly.

Ordered accordingly. .  