Wiltsie v. Shaw

• Decision Date: 13 October 1885
• Citation: 100 N.Y. 191,3 N.E. 331
• Parties: WILTSIE v. SHAW.
• Court: New York Court of Appeals Court of Appeals

100 N.Y. 191

3 N.E. 331

WILTSIE

v.SHAW.

Court of Appeals of New York.

Filed October 13, 1885.

Mr. Cowen, for appellant, William Shaw.

Mr. Merritt, for respondent, Eliza S. Wiltsie.

DANFORTH, J.

In view of the conflicting opinions of the learned judges of the supreme court, it cannot be said that no reasonable doubt can be entertained upon the question raised by this appeal; but it appears to us, upon principle and authority, that the legacy in question is not a charge upon any part of the estate in any such sense as will make it a lien upon the land in the hands of a purchaser. It is possible to imagine contingencies which would require for its payment a portion of the personalty, or a portion of the realty, or both. The estate may be so diminished that either species of property would alone be insufficient, and the beneficiary be so unmindful of his own interest, or incapable of attending to it, as to omit all measures to enforce the trust before that event happened. But these things are not to be presumed, and nothing of the kind appears. On the contrary, the personal property in the hands of the executor exceeds $50,000 over and above all debts, and there is no claim that she is lacking either in pecuniary responsibility or in honesty. If, indeed, the legacy is a lien or charge upon the land, it attached at the death of testator, and its creation must be gathered from the words of his will, or found in some provision of law. The last is not pretended, nor are there express words of the testator to that effect. It is not controverted that in the absence of directions by the testator, or some manifest intent on his part, the general rule requires that legacies shall be paid out of personal estate; but the appellant's contention is- First, that the provision in question is not a legacy within the ordinary meaning of the term, but rather a charge upon the estate left to the plaintiff, his other child. This proposition assumes the point in dispute, and we find nothing in the will to justify it. It is clearly not sufficient that the legacy is directed to be paid. The cases all involve something more,-a direction that it be ‘first or previously paid,’ or the residuary devise is ‘after its payment,’ or is to a person with directions to pay, or is of all ‘not herein otherwise disposed of.’

In Hoyt v. Hoyt, 85 N. Y. 142, cited by the appellant, importance was attached to the presumption that a testator would not desire one of his beneficiaries to enjoy and the other be deprived of his prescribed bounty, and the residuary clause was construed as embracing only so much of the estate as should remain after the legacies in question had been satisfied; and from these considerations, and some others which have no application here, the intention of the testator was discovered, and held to be that the legacies should be paid at all events, and that all parts of his estate should be liable for the payment. But here we are not left to presumption. The testator, of course, intended the legacy should be paid, and having in mind his estate, its nature, its amount, and those persons who might naturally expect gifts from him, declared- First, that his grandson should have $1,000; second, the trustees of the cemetery $100, in trust for the preservation of his lot therein; third, ‘I give,’ he says, ‘to my executors the sum of $20,000, in trust, for...