Dunham v. Deraismes
| Citation | 58 N.E. 789,165 N.Y. 65 |
| Parties | DUNHAM v. DERAISMES et al. |
| Decision Date | 27 November 1900 |
| Court | New York Court of Appeals |
Appeal from supreme court, appellate division, First department.
Action by Robert Emmet Dunham against John A. Deraismes and others. From a judgment of the appellate division (51 N. Y. Supp. 1097) reversing an interlocutory judgment of the special term in favor of plaintiff, plaintiff appeals. Reversed.
Thorndike Saunders, for appellant.
John E. Parsons, for respondents.
This action was brought to declare an annuity bequeathed to the plaintiff by the will of John F. J. Deraismes a lien upon the real estate devised by said testator to his children and grandchildren. It is doubtless true that the personal estate of a testator is not only the primary, but the sole, fund for the payment of legacies, unless the testator has charged such payment upon his realty either exclusively or in aid of the personalty. That intent must be manifested by the will itself, or in certain cases may be made to appear by proof of extrinsic facts, such as the condition of the testator's estate at the time he made the will. McCorn v. McCorn, 100 N. Y. 511, 3 N. E. 480;Briggs v. Carroll, 117 N. Y. 288, 22 N. E. 1054. In the present case there is no proof of any inadequacy of the personalty to satisfy the plaintiff's annuity and the other legacies. Therefore, for the plaintiff to succeed in his claim, reliance must be placed on the face of the will. It is not necessary, however, to charge a legacy on the realty that there should be express direction to that effect in the will; it is sufficient if such be the intent of the testator to be gathered from all its provisions. Taylor v. Dodd, 58 N. Y. 335;Kalbfleisch v. Kalbfleisch, 67 N. Y. 354. In the two cases cited this court rested its conclusion that the testator intended to charge the legacies on the real estate on the presence in the wills then before the court of a power of sale of the real estate given to the executors, for which there appeared in the will no other sufficient purpose. At the same time it has been held that the mere blending of the personalty and realty in a general residuary clause is not sufficient to charge the legacies on the realty. Brill v. Wright, 112 N. Y. 129, 19 N. E. 628. Bearing in mind these general rules, we now come to the examination of the various provisions of Mr. Deraismes' will.
In the second clause of the will the testator, after giving his widow his household furniture and certain other personal property, bequeaths to her an annuity of $4,800 during her natural life, to be paid quarterly by his executors, and in express terms charges the rents and profits of his improved real estate in the city of New York with its payment during such period. The other provisions of this clause are immaterial to the disposition of the question before us. By the third clause of the will the testator bequeaths to the plaintiff an annuity of $300 during his natural life, to be paid by his executors quarterly. By the sixth clause of the will he devises all the rest and residue of his real estate to his children and two grandchildren (the children of a deceased child), to be divided between them when his youngest son shall arrive at the age of 21 years, or at his decease, if he should die before attaining that age. He then directs that his executors immediately upon his decease take possession and control of all the real estate devised by this clause, receive the rents, issues, and profits thereof, and after paying out of the same all taxes, assessments, repairs, and expenses, ‘also the said annuity herein given to my said wife, and the said annuity given to my son-in-law, Robert Emmet Dunham,’ to credit the balance or remainder quarterly to his said children and grandchildren. The seventh clause provides for the application of such part of the balance of the income as may not be necessary for the support of the devisees to making improvements on testator's real estate. The eighth clause makes provision for the guardianship for such of the devisees as may be infants. By the ninth clause the testator gives and bequeaths unto said...
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Ferris' Trust, In re
...have been commuted currently but not retroactively: (Buchanan v. Little, 154 N.Y. 147, 152, 47 N.E. 970, 971; Dunham v. Deraismes, 165 N.Y. 65, 70, 58 N.E. 789, 790; Central Trust Co. v. Falck, 177 App.Div. 501, 164 N.Y.S. 473, affirmed 223 N.Y. 705, 120 N.E. 859; People's Trust Co. v. Flyn......
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Carley v. Harper
...of a power of sale of real estate otherwise unnecessary may help the legatees (Kalbfleisch v. Kalbfleisch, 67 N. Y. 354;Dunham v. Deraismes, 165 N. Y. 65, 58 N. E. 789), as may the blending of real and personal property in the residuary clause (Scott v. Stebbins, 91 N. Y. 605, 613;McCorn v.......
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Harris, Application of
...at the rate earned by the estate. In fixing the 1951 date the referee in Special Term relied on the holding in Dunnham v. Deraismes, 165 N.Y. 65, 69, 70, 58 N.E. 789, 790. It is true that the court held in the Dunham case that the lien of the annuity might be discharged by paying its 'prese......