Hoes & Wife v. Van Hoesen

1 How. App. Cas. 271

• Court: New York Court of Appeals
• Decided: November 15, 1847
• Status: Published

Opinion

Decision.—Decree affirmed. Unanimous.

Jewett, Ch. J., delivered the opiniop of the court.

Note. Held, that the personal estate of the testator is deemed the natural and primary fund to be first applied in discharge of his personal debts and general legacies, and the testator is presumed to act upon this legal doctrine, until he shows some other distinct and unequivocal intention.

It seems from the will, that it was the intention of the testator that the devise and bequest to the two sons, with directions to them to pay, should be in aid of the reversionary interest in the personal estate undisposed of by the will, and that that interest should be the primary fund for the payment of the legacies.

The mere making a provision for the payment of debts or legacies out of the real estate does not discharge the personalty. There must be an intention not only to charge the realty, but to exonerate the personalty.

The decree affirmed upon this point alone.

Reported, 1 Comstock, 120.