In re the Judicial Settlement of the Account of Proceedings of Goetz

Hatch, J.: The learned surrogate held, construing the will of the testator, that nothing passed thereunder to the widow by the 2d clause except the furniture, plate and household effects of the testator; that the debts in the 1st clause and the money legacies contained in the 3d and 4th clauses of the will were charges upon the personalty. It is the construction of these clauses that presents the only question necessary to be' determined upon this appeal. The consideration of a few general principles which are uniformly applied in the construction of wills seems to present a solution of the present question and enforce the will according to the intent of the testator. It is a general rule that the personal estate of a testator is the primary fund for the payment of debts and legacies in the absence of an express provision making them a charge upon the testator’s real property, or in the absence of an intent, to be gathered from the language used and the scheme of the will as a whole, to show otherwise. (Hoes v. Van Hoesen, 1 N. Y. 120.) If we construe the language of the 2d clause of the will literally, the testator gives thereby to the widow all of his personal property. The words which follow in this clause are not words of limitation nor can their literal significance be used to cut down the bequest contained therein. The language is a gift of the whole, including furniture, plate and household effects. “ Including ” is not a word .of limitation, rather is it a word of enlargement, and in ordinary signification implies that something else has been given beyond the general language which precedes it. Neither is it a word of enumeration of the property which would pass by the express terms of the language of gift. No language could be used which would express the gift of a whole stronger in terms than that of which the testator made use. He could not give more than all of his property and that is what he assumed to give in terms.- The enumeration of special property is preceded by the statement that such property is included in the gift of all his personal estate. There is nothing, therefore, in the language of this clause which can be construed as words of limitation upon the bequest contained [276] therein. In addition to this, the further provision is that the absolute and complete beqtiest shall be in lieu of and in bar of all claim of dower in the testator’s estate. The gift, therefore, is to" be construed as being founded upon a valuable consideration, as the surrender of the' dower interest is made a condition of the bequest. It is evident, therefore, that so far' as the express language of the will is concerned the gift is absolute of all" his personal property, including furniture, plate and household effécts, and in consideration of such bequest dower right is to be released.- So far, therefore, as.-the express language of this clause of the will is concerned it clearly excludes a construction which would limit the estate bequeathed, and so far as the testator’s intent can be gathered from the language which he has used, it is clear that he understood that he was giving to his wife the whole of his personal estate, subject to no diminution by legacies charged thereon. Such a clause is to be liberally construed in favor of the widow. (Moffett v. Elmendorf, 152 N. Y. 475 ; Thurber v. Chambers, 66 id. 42.) As the gift is founded upon the exclusion of dower such fact is also to be taken into' consideration, and the provision thus made is to be regarded as the dominant provision, and all other clauses are to be made subordinate, thereto if the will, as a whole, can be supported. (Stimson v. Vroman, 99 N. Y. 74; Roseboom v. Roseboom, 81 id. 356.) This clause of the will, therefore, may not be cut down, or limited by subsequent provision unless the intent so to do is expressed-in decisive and unqualified terms. Such is the effect and the language of the authorities we have cited. The effect of the provisions directing the payment of legacies contained in the 3d and 4th clauses would ordinarily be construed as constituting a charge upon the personal estate of the testator as there is no language in the will which expressly makes them a charge upon the real property. Such construction, however, is not permissible under the terms of the present Will for the reasons already assigned, and .for the further reason that it appears that the value of the widow’s dower in the real property left by the testator was considerably in excess of the value of the bequest therein and of her rights in the personal estate. The testator evidently bore towards his wife much love and. affection, and expresses the same in the 2d clause of his will.. It is fair to presume, therefore, that he intended to -make his wife a fair and [277] just provision in the distribution of his property. It would be opposed to such relation to presume that he intended to make his gift to the wife delusive and in fact worth much less than though he had made no provision for her at all. On the contrary, such considerations are pertinent matters of inquiry as bearing upon the intent of the testator. If we adopt the construction of the learned surrogate in the present case we not only have to conclude that the testator intended to deprive his wife of her rightful interest in his property, but also to cut down and limit language which corresponds with such intent and do violence thereto which the literal and ordinary signification of the words do not permit. We think, therefore, that it was the intent of the testator and the scheme of the will, as well as his express language, to give to his wife the whole of the personal estate of the testator without any diminution on account of the subsequent legacies, and that by fair construction the testator intended to charge their payment upon his real property. We do not think, however,, that this construction should obtain as to the debts. The clause in the will which directs their payment precedes the bequest to the wife of all the personal estate. Debts are, of course, payable out of the personalty where it is sufficient for the purpose, and resort may not be had to the real estate until the personal estate is exhausted; and proof is required to be made of such fact in a proceeding to charge payment of debts upon the real property. (Code Civ. Proc. § 2759, subd. 5.) And by the petition in such proceeding, if presented by the executor or administrator, it is required to state the amount of the personal property which has come to his hands and the disposition made of the .same. (Id. § 2752, subd. 4.) As the first direction in the will was to pay debts, and as we have already seen that the personal estate is the primary fund for their payment, we think it was the intent of the testator to give to the wife all of the personal estate that survived the administration of the same, and that the debts are a proper charge thereon. For the reasons already assigned, however, the testator’s intent was evidently otherwise so far as the legacies to which we have heretofore made reference are concerned. If these views are sound, it follows that the decree of the surrogate should be reversed and a decree entered which shall correspond [278] to the views expressed in this opinion, with costs to the appellant payable out of the estate. Van Brunt, P.J., Patterson, Ingraham and McLaughlin, JJ., concurred. Decree reversed, and decree entered as directed in opinion,, with costs to appellant payable out of the estate.