Conkling v. Weatherwax

• Citation: 173 N.Y. 43,65 N.E. 855
• Parties: CONKLING v. WEATHERWAX et al.
• Decision Date: 06 January 1903
• Court: New York Court of Appeals

173 N.Y. 43

65 N.E. 855

CONKLING

v.WEATHERWAX et al.

Court of Appeals of New York.

Jan. 6, 1903.

Appeal from supreme court, appellate division, Third department.

Action by Clarissa Weatherwax Conkling against John T. Weatherwax and others. From a judgment of the appellate division (73 N. Y. Supp. 1132) affirming a judgment in favor of defendant Hannah M. Hidley and Emily A. Tompkins, defendants appeal. Reversed.

On May 8, 1868, Henry Weatherwax died, leaving a last will and testament, wherein, amongst other things, he provided for certain care and income and privileges to be furnished to his widow by his son, Charles Weatherwax, or the occupant of his farm after his decease, out of the profits of said farm, and also setting apart to his widow a part of his dwelling house. He gave to his daughter Clarissa ‘the sum of one thousand dollars, to be paid to the said Clarissa S. Weatherwax two years after my decease; the same to be paid out of my farm, by my executor.’ After the devise of certain specific articles to his daughter Emily, the will further provides as follows: ‘And finally the said Emily Ann Eliza shall be paid out of my said farm, by my executor hereinafter named, the sum of one thousand dollars. * * * The one thousand dollars to be paid ten years after Clarissa S. is paid her one thousand dollars herein provided, or twelve years after my decease.’ The will further provides as follows: ‘I also give and bequeath to my son, Charles, all my real estate and personal property after the payment of my just debts and funeral expenses, together with the expense of settling my estate, and the payment of the above-named legacies, to have and to hold the said farm and all remaining and unappropriated personal property, to him and his heirs and assigns forever; but my son, Charles, shall not have the right to sell or dispose of the said real estate during the widowhood of his mother without obtaining his mother's consent.’ The testator, in and by his will, appointed his son, Charles, executor of his estate.Henry D. Merchant and Abel Merchant, Jr., for appellants.

Robert E. Whalen, for respondents.

PARKER, C. J. (after stating the facts).

This controversy is over the priority of liens on certain real estate, and is waged between the legatees of a testator, on the one side, and the mortgagee of his residuary devisee, on the other. The courts below have held that the legacies are still liens, and must be paid out of the proceeds of the sale of the real estate upon which they were charged by the testator, but not until after the payment of the amount secured by a mortgage given thereon by testator's devisee, his son, to whom the testator gave an interest in the farm after giving the legacies to his two daughters, directing the legacies to be paid out of the farm; the devise to the son being in the following words: ‘I also give and bequeath to my son, Charles, all my real estate and personal property after the payment of my just debts and funeral expenses, together with the expense of settling my estate, and the payment of above-named legacies.’ In other words, the judgment gives to the mortgagee of a devisee of the remainder after payment of legacies and other charges priority of payment over such legacies. Our examination of the situation leads us to a different conclusion. Testator, by his last will and testament, gave to plaintiff and her sister legacies payable ‘out of my said farm by my executor.’ The will, in terms, therefore, declares a lien upon the farm, which by a later rovision of the will passes to his son, Charles, after payment of such legacies and other charges. This lien was created and recorded long before the mortgage came into existence, and the first inquiry is, were the legacies still liens, when, on May 1, 1884, Charles gave a mortgage on his interest in the farm to defendant Hidley? They necessarily were unless (1) they had been paid, or (2) had become barred by some statute of limitations, or (3) the liens had been released by the legatees. It is found as a fact by the trial court that they had not been paid. There is neither finding nor evidence that...