Briggs v. Carroll

• Citation: 117 N.Y. 288,22 N.E. 1054
• Parties: BRIGGS v. CARROLL.
• Decision Date: 26 November 1889
• Court: New York Court of Appeals

117 N.Y. 288

22 N.E. 1054

BRIGGS

v.CARROLL.¹

Court of Appeals of New York.

Nov. 26, 1889.

Appeal from supreme court, general term, fifth department.

Action by William B. Briggs, by his guardian, against Peter D. Carroll, to charge a legacy on real estate. From a judgment affirming a judgment of the special term for plaintiff, (3 N. Y. Supp. 686,) defendant appeals.

M. A. Seary, for appellant.

Chas. S. Baker, for respondent.

FINCH, J.

The testator by his will gave to his wife a legacy of $2,500, to be accepted by her in lieu of dower; to his son Charles, $1,500, ‘to be held and used by his mother as necessity might require for his education;’ and to his grandson, the plaintiff, $500. He directed these legacies to be paid within one year after his death. Their bequest was followed by a residuary clause, which reads thus: ‘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, viz., Kate L., C. J., Sarah, and the above-named Charles W., to be divided equally between them, or their heirs and assigns, share and share alike.’ The will was executed about eight years before the testator's death. At that time he had no money or securities, but his whole personal estate consisted of the usual farm property, such as stock and grain, and was in value no greater than it proved to be at the time of his death. It appears that such value was not in excess of $1,500. At the date of the execution of the will he seems to have been substantially free from debt, but thereafter gradually accumulated liabilities, which at his decease his personal estate was insufficient to pay. The widow and son took their legacies in the land by the process of buying in the interests of the other children. The debts were paid, which more than exhausted the personal estate, and the widow, who finally bought out Charles, and became sole owner of the land, promised to pay the plaintiff's legacy, but has been unable to do so. She mortgaged the property, and it has been sold on foreclosure to the defendant, who bought with notice of the plaintiff's claim against the land. On this state of facts the courts below have held that plaintiff's legacy was a charge upon the realty, and the defendant appeals from that decision.

In Brill v. Wright, 112 N. Y. 129, 19 N. E. Rep. 628, the rule prevailing in this state is held to be that a residuary clause coming after a bequest of legacies, and disposing of both the real and personal estate together, and by one form of expression, will not alone justify a construction that the legacies are charged upon the land, but will do so where it appears in addition, from such extrinsic facts as may be resorted to, that there was in truth an intention to charge the debts upon the land; and we have inferred that intention where the personal estate of the testator was, at the date of the will, largely and clearly insufficient for the payment of the legacies given, and the testator must have known and...