
    Briggs v. Carroll.
    
      (Supreme Court, General Term, Fifth Department.
    
    January 11,1889.)
    1. Wills—Construction—Legacies—Charge on Land.
    Bequests of money to the amount of $4,500, to be paid after testator’s debts are all paid, and within a specified time after his death, his personalty at the time of executing the will being only $1,500 worth of farm stock and implements, followed by a disposition of the entire residue of his estate, without distinguishing realty from personalty, become a charge on the realty on exhaustion of the personalty.
    
    2. Same—Defect of .«Parties—Waiver.
    In an action to charge the realty with one of such bequests, an objection that the executrix should be made a party defendant is within Code Civil Proc. M. Y. § 499, which provides that an objection for defect of parties is waived unless taken by demurrer or answer.
    3. Same—Complaint—Land Devised—Partial Alienation.
    Under the rule that parcels of land sold subject to the same incumbrance will be subjected in the inverse order of their alienation, it is a good answer to an objection that the complaint should embrace all the lands owned by testator at his death, that a parcel not embraced had been alienated by the devisees.
    Appeal from special term, Yates county.
    Action by William B. Briggs, by Ms guardian, against Peter D. Carroll to charge a legacy on real estate. Judgment for plaintiff and defendant appeals. Code Civil Proc. S. Y. § 499, cited in opinion, provides that if certain ob-“ jections, including inter alia an objection for defect of parties, be not taken by answer or demurrer, defendant is deemed to have waived them.
    Argued before Barker, P. J., and Bradley, Haight, and Dwight, JJ.
    
      M. A. Leary, for appellant. C. S. Balter, for respondent.
    
      
      As to when a legacy will be held to be a charge on land, see Smith v. Smith, 1 N. Y. Supp. 643, and note; In re Cocks’ Estate, Id. 904.
    
   Dwight, J.

The action was to 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 small legacy 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. * * *” At the time of making his will the testator was the- owner of the real property described in the complaint, which was unincumbered. His personal property at that 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 unincumbered, and of an additional parcel of 37 acres, on which he had paid about $700, and which was incumbered 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 character 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 37 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, 3 N. E. Rep. 480, 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 MeCorn. See Hoyt v. Hoyt, 85 N. Y. 142; Scott v. Stebbins, 91 N. Y. 605; Brill v. Wright, 8 N. Y. St. Rep. 814; In re Pettit, 13 N. Y. St. Rep. 184; Adkins v. Adkins, Id. 193,—all of which may be distinguished from the cases of Lupton v. Lupton, 2 Johns. Ch. 614, and Reynolds v. Reynolds, 16 N. Y. 257. The decision in Lupton v. Lupiora^urned 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. Hone 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 Civil Proc. § 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 37 acres had been first alienated by the parties taking under the will, under the familiar rule inequity that parcels of land sold subject to the same liens or incumbrances 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.  