Woodruff, J.
The only points urged on behalf of the appellant are:
1st. That the son, George W. Brown, should be charged with the payment of all the debts of the testator.
2d. That the widow is entitled to all the property which she had at her marriage, in whatsoever it then consisted, or now consists; and therefore, the judgment at Special Term, awarding her the amount thereof, to wit, $700, was correct; and
3d. That the costs should be paid, not out of the principal of the estate, in reduction of the income to the widow, but out of the reversionary interest only.
1. It is manifest that the construction and effect given to the will by the court below, operates to render the provision requiring George W. Brown to pay any debts of the testator inoperative; the decree requires their present payment out of the principal of the estate, and of course it makes it impossible that the residuary devisee and legatee should have any debts to pay, and there can be none outstanding at the decease or marriage of the widow. The direction in the will in 3 espect to this payment of debts by George, is clearly, I think, susceptible of being read in harmony with an intention in the mind of the testator that the whole burden of the small amount of debts which he owed should fall upon his son, and so the beneficial enjoyment of his whole property (except that in the codicil bequeathed to his daughter) be preserved to his widow. A single transposition would express that intention; thus, all debts that shall be outstanding against me, the said George W. Bro wn shall pay at the time oí the decease or marriage of my wife. It is manifest, I think, that in the sentence which immediately follows in the will, the testator has used the decease or marriage of his wife to determine the time of payment merely, and yet the structure of the sentence is very similar to that which is above transposed. The idea expressed by such following sentence would in like manner be made clear if read thus: Said George W. shall, within one year from the decease or mar
riage of my wife, or if she dies first, within one year fro
ja
my decease, pay to my grandson, George H. Moore, the sum of $100, if said George H. Moore shall be living. Looking at both of these clauses in connection with the general intent apparent in the whole will, primarily to provide for the maintenance of his wife, I feel strongly impressed by the belief that the testator meant to charge the payment of all his outstanding debts upon his son; and that in his consciousness that he had provided him with no means therefor until his wife should die or marry, he fixed that death or marriage as the time when he should make the payment; thus making that, not the test or means of measuring the amount he should pay, but the time when the charge he imposed upon him should be executed. His form of expression may
be
infelicitous, and yet it is one which read as embracing two consecutive thoughts in the mind of the testator, will import the same thing even without transposition. First, “said George shall pay all debts that shall be outstanding against me.” Hext, when shall he so pay? “At the time of the decease or marriage of my wife,” when he will be entitled to all the property, real and personal that I shall possess fit my decease.
Again, the gift to George of all the property real and personal George is to become entitled to “ by paying,”
i. e.,
on condition that he pays. It is irrational to conclude that the testator, conscious that, bylaw, the payment of his debts must be made without awaiting the" decease or marriage of his wife, meant, that George should have the benefit of this devise and bequest although he paid nothing.
On the contrary, it is in much better harmony withi the language used, and with the other provisions of the will, to say that the testator intended that, provided George paid all debts outstanding against the testator, he should have all 1 tis property. It is, nevertheless, equally plain that he did not intend to charge him with that payment until, by the decease or marriage of his wife, he would have acquired a right of immediate enjoyment of the property itself.
How then can this intention of the testator, so inconsistent with the right of creditors to have immediate payment, be carried into effect ? Asa question between creditors and the estate of the testator, it must necessarily be answered that no provision of the will of the testator can legally operate to hinder or delay the payment of his debts; but as a question between the devisee or legatee entitled to the use of the property, and another entitled to the remainder or principal, the answer is quite different. If the payment of the debts is charged upon the remainder, whether by direct terms of charge or by words of condition, then although the devisee or legatee of such remainder is not put to an election which can make him personally liable for the debts, the charge may be executed upon the remainder itself. And this works complete justice and effectuates the intention of the testator. The case of
Hoes
v.
Van Hoesen
(1 Comst., 120), is in harmony with this view. The gift of the entire real and personal estate to the widow for life, with a provision that the devisee and legatee in remainder shall pay the debts, indicates an intention to exonerate the estate as to such life interest altogether, and cast the debts on the remainder. And the collection of such debts out of the remainder or.residuary interest of George works nothing inequitable as to him; for if he takes that interest at the decease or marriage of the widow, he takes it reduced or abated only by the debts the testator intended to charge thereon. These considerations lead me to the conclusion that, if practicable, the debts of the testator should be paid out of the remainder or residuary estate, and interest given to the son. And that may be done by selling, subject to the use given to the widow during her life or widowhood.
. 2. Upon the next question I am of opinion that the decision at Special Term was correct, and that the testator intended to give, and did give his widow all the property she had at the time of her marriage, of whatever kind. It is not easy to suggest words more expressive of this intent, unless the testator should go into an enumeration of particulars. Thus
he declares that she is to have and hold, &c.,
“ all the property,
whether household furniture or
any other kind
that she had at the time of our marriage.”
How, it is not only true that money is “property,” but, where the testator has said all the property, and then gives intensity to the expression by saying “ whether household furniture, or any other kind,” he indicates that whatever kind of property it was which she had, or by whatever name it be called, it shall be refunded and be had and held by her to her own use. This made the gift not an acknowledgment of a debt, but a legacy to be paid out of his estate.
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Woodruff, J.
The only points urged on behalf of the appellant are:
1st. That the son, George W. Brown, should be charged with the payment of all the debts of the testator.
2d. That the widow is entitled to all the property which she had at her marriage, in whatsoever it then consisted, or now consists; and therefore, the judgment at Special Term, awarding her the amount thereof, to wit, $700, was correct; and
3d. That the costs should be paid, not out of the principal of the estate, in reduction of the income to the widow, but out of the reversionary interest only.
1. It is manifest that the construction and effect given to the will by the court below, operates to render the provision requiring George W. Brown to pay any debts of the testator inoperative; the decree requires their present payment out of the principal of the estate, and of course it makes it impossible that the residuary devisee and legatee should have any debts to pay, and there can be none outstanding at the decease or marriage of the widow. The direction in the will in 3 espect to this payment of debts by George, is clearly, I think, susceptible of being read in harmony with an intention in the mind of the testator that the whole burden of the small amount of debts which he owed should fall upon his son, and so the beneficial enjoyment of his whole property (except that in the codicil bequeathed to his daughter) be preserved to his widow. A single transposition would express that intention; thus, all debts that shall be outstanding against me, the said George W. Bro wn shall pay at the time oí the decease or marriage of my wife. It is manifest, I think, that in the sentence which immediately follows in the will, the testator has used the decease or marriage of his wife to determine the time of payment merely, and yet the structure of the sentence is very similar to that which is above transposed. The idea expressed by such following sentence would in like manner be made clear if read thus: Said George W. shall, within one year from the decease or mar
riage of my wife, or if she dies first, within one year fro
ja
my decease, pay to my grandson, George H. Moore, the sum of $100, if said George H. Moore shall be living. Looking at both of these clauses in connection with the general intent apparent in the whole will, primarily to provide for the maintenance of his wife, I feel strongly impressed by the belief that the testator meant to charge the payment of all his outstanding debts upon his son; and that in his consciousness that he had provided him with no means therefor until his wife should die or marry, he fixed that death or marriage as the time when he should make the payment; thus making that, not the test or means of measuring the amount he should pay, but the time when the charge he imposed upon him should be executed. His form of expression may
be
infelicitous, and yet it is one which read as embracing two consecutive thoughts in the mind of the testator, will import the same thing even without transposition. First, “said George shall pay all debts that shall be outstanding against me.” Hext, when shall he so pay? “At the time of the decease or marriage of my wife,” when he will be entitled to all the property, real and personal that I shall possess fit my decease.
Again, the gift to George of all the property real and personal George is to become entitled to “ by paying,”
i. e.,
on condition that he pays. It is irrational to conclude that the testator, conscious that, bylaw, the payment of his debts must be made without awaiting the" decease or marriage of his wife, meant, that George should have the benefit of this devise and bequest although he paid nothing.
On the contrary, it is in much better harmony withi the language used, and with the other provisions of the will, to say that the testator intended that, provided George paid all debts outstanding against the testator, he should have all 1 tis property. It is, nevertheless, equally plain that he did not intend to charge him with that payment until, by the decease or marriage of his wife, he would have acquired a right of immediate enjoyment of the property itself.
How then can this intention of the testator, so inconsistent with the right of creditors to have immediate payment, be carried into effect ? Asa question between creditors and the estate of the testator, it must necessarily be answered that no provision of the will of the testator can legally operate to hinder or delay the payment of his debts; but as a question between the devisee or legatee entitled to the use of the property, and another entitled to the remainder or principal, the answer is quite different. If the payment of the debts is charged upon the remainder, whether by direct terms of charge or by words of condition, then although the devisee or legatee of such remainder is not put to an election which can make him personally liable for the debts, the charge may be executed upon the remainder itself. And this works complete justice and effectuates the intention of the testator. The case of
Hoes
v.
Van Hoesen
(1 Comst., 120), is in harmony with this view. The gift of the entire real and personal estate to the widow for life, with a provision that the devisee and legatee in remainder shall pay the debts, indicates an intention to exonerate the estate as to such life interest altogether, and cast the debts on the remainder. And the collection of such debts out of the remainder or.residuary interest of George works nothing inequitable as to him; for if he takes that interest at the decease or marriage of the widow, he takes it reduced or abated only by the debts the testator intended to charge thereon. These considerations lead me to the conclusion that, if practicable, the debts of the testator should be paid out of the remainder or residuary estate, and interest given to the son. And that may be done by selling, subject to the use given to the widow during her life or widowhood.
. 2. Upon the next question I am of opinion that the decision at Special Term was correct, and that the testator intended to give, and did give his widow all the property she had at the time of her marriage, of whatever kind. It is not easy to suggest words more expressive of this intent, unless the testator should go into an enumeration of particulars. Thus
he declares that she is to have and hold, &c.,
“ all the property,
whether household furniture or
any other kind
that she had at the time of our marriage.”
How, it is not only true that money is “property,” but, where the testator has said all the property, and then gives intensity to the expression by saying “ whether household furniture, or any other kind,” he indicates that whatever kind of property it was which she had, or by whatever name it be called, it shall be refunded and be had and held by her to her own use. This made the gift not an acknowledgment of a debt, but a legacy to be paid out of his estate.
In the same paragraph he uses the word property in the same comprehensive sense when applied to his own estate, and it is not and cannot be doubted that it there includes all money, debts due him and whatever of value can pass under the name of property. Thus he gives to his wife “ the use of all the property, both real and personal, I may possess at my decease,” &c., and in the next line declares that she is to have án d to hold as her own, &e., &c., all the property, whether household furniture or any other kind, that she had at the time of our marriage, &c. It seems to me that this latter expression included the money she then brought to the testator, and that the decree at Special Term was correct in treating this as a legacy, and that whatever of household furniture or other chattels so owned by her remained, was given to her, and whatever of money she brought to the testator should be refunded out of sales of the personal estate, and if that be not sufficient, then out of the real estate. But a majority of my brethren are of opinion that the decree below, in this respect is right, and the decree thereupon, in this respect, must be affirmed.
3. The direction in regard to costs was correct. The whole theory of the action is that, by reason of doubt in regard to the intention of the testator, the aid of the court was necessary to determine the rights of the parties and instruct the executors as to their duty. I think this theory was.sound, and that the action was properly brought. In such cases the
disposition of the question of costs is not governed by any invariable rule, but depends upon the particular circumstances. Whether the parties shall each bear their own costs; whether the costs shall fall upon the residuary estate, or whether it shall be charged upon the fund in the proportions in which it is to be beneficially enjoyed, are proper questions to be considered. Often, and perhaps it may be said that generally the particular bequests will be preserved and costs charged upon the residuary estate. This will be so when the condition of the estate and the objects of the specific bequests make that seem most equitable; but here the estate is small. The testator has very plainly indicated the relative degree in which he intended his widow and his son to be benefited, and that is by the use to the widow and the principal to the son. The decree practically charges the burden of costs in the same
proportion; by
paying it from the proceeds of sale, the widow loses the use and the son the principal to that extent.
Surely this is not inequitable toward her. As she has the use of the whole estate (some small amount of furniture excepted), I incline to think the son has more reason than she has to complain.
On the two grounds above stated I think the decree should be reversed, or modified in conformity with the views expressed.