Brink v. Masterson

The Surrogate. The bequest to the widow is a general legacy, and primarily could not be paid from the real estate, and, like other general legacies, would ordinarily abate or fail where there is insufficient personal property (Babcock v. Stoddard, 3 T. & C., 207; McCorn v. McCorn, 100 N. Y., 511). But being given and accepted in lieu of dower, it must be paid in preference to other general legacies, the widow being regarded as a purchaser for consideration (Babcock v. Stoddard, supra; Isenhart v. Brown, 1 Edw. Ch., 211). The personal estate amounted to about $600, which was not more than sufficient to pay the debts and expenses of administration ; therefore, unless this legacy is charged by the will upon the real estate, or the proceeds of the sale of the real estate are in some way applicable to the payment thereof, it must fail entirely. I am of opinion that the provision authorizing and empowering the executor to sell his real estate “ for the benefit of my legatees,” operates as an equitable conversion of the real estate, and, thus becoming personal estate, it was applicable to the payment .of general legacies. But it is not necessary to rest on this [527] ground alone, because it can be fairly determined that the testator intended to charge the legacies given by his will upon the real estate, for the following reasons :—(1.) That intent is apparent in the words, “ and I further authorize and empower my executors to sell, for the benefit of my legatees, any and all of my real estate.” (2.) The ninth provision of the will, authorizing the executors to apply the rents of the real estate, until sold, to satisfy the annual claims of the wife and daughter, contemplates a lack of personal property to invest, and recognizes the necessity of obtaining the fund to be invested for their benefit from the real estate. (3.) The testator must have known that there would be no personal property with which to pay legacies; and it cannot be thought that he meant to make bequests which would be idle words, but must rather be supposed that he meant and intended them to be good and substantial gifts, which they could only be by charging them on the real estate (McCorn v. McCorn, supra). Having reached this conclusion by either of the methods mentioned, the proceeds of the sale of the real estate became applicable to the payment of the legacies, the widow’s legacy retaining its right to priority. The decree should direct the executors to set apart and invest, from the funds in their hands, $3,000 for the benefit of the widow, and to invest the balance in their hands for the benefit of Mrs. Brink, and hereafter only the income derived from the investment made on their behalf shall be paid to either of them.