Edward T. Bartlett, J.
This litigation arises over the will of Jacob V. B. Teller, late of the village of East Green-bush, now city of Rensselaer, Rensselaer county, and certain extrinsic circumstances. The will and the findings are lengthy, but the facts material to this controversy are exceedingly simple. This action was brought by the two daughters of the testator and asks for a judgment determining the rights of the parties in and to the property, real and personal, disposed of by the will.
The testator died leaving five children, the two plaintiffs, and three sons, David, William and Elisha,, seized of what is
known as the Rensselaer county farm property, a lot in the city of Rensselaer, and certain real estate in the city of Albany. The farm property was devised and afterwards conveyed to William and David, subject to a certain annuity to be paid to Elisha in his lifetime and legacies to be paid to his next of kin after his death.
The testator, by the residuary clause of his will, bequeathed and devised to his two daughters by a general provision the residue of his personal property and real estate. The effect of this disposition was to vest in the daughters the testator’s personal property, if any, the lot in the city of Rensselaer (formerly the village of Greenbush), and three parcels of real estate in the city of Albany, consisting of certain premises in Hawk street and numbers 51 and 59 Hudson avenue. The values of this real estate were neither proved nor found. The only finding having any bearing whatever upon the value is to the effect that 59 Hudson avenue was devised to the plaintiffs, subject to a mortgage of $3,000. It is found that the testator was possessed of no personal property whatever either at the time of making the will or at his death.
This appeal presents the single question whether the two legacies of $2,500.00 each, payable by the daughters of the testator (the plaintiffs in this action) to the next of kin of Elisha after 1ns death, are chargeable on the real estate devised to them by the residuary clause of the will.
It is found that since the testator’s death in February, 1892, the plaintiffs have paid the annuity of $75.00 a year out of their own property; it is also inconsistently found that for some time prior to the death of Elisha the $75.00 a year was paid by the plaintiffs to Elisha’s wife out of .the estate of William Teller. Hnder the residuary clause of the will this annuity was $125.00 a year, but it was cut down to $75.00 by the second codicil executed on the 13th of ¡November, 1890.
A preliminary point is made by plaintiffs appellants that certain real estate purchased by the testator after the execution of his will and devised to them, cannot be made charge
able with the payment of these legacies even if the real estate held at the time of the execution of the will is subjected to this lien. A will speaks from the time of the testator’s death, and the real estate owned by him at that time is chargeable with the payment of legacies that are a lien upon realty. It is to be remarked that at the time of the execution of the second codicil the testator was the owner of all the real estate of which he died seized. The codicil was a re-execution and re-publication of the original will, and is a further answer to this preliminary point.
However improbable it may seem that the testator died possessed of no personal property, in view of the elaborate provisions of the will based on the assumption that his estate was made up in part of personalty, and the additional fact that he purchased more real estate after the execution of the will, nevertheless we are bound by the finding, unanimously affirmed by the Appellate Division, that he was possessed -of no personal property, either when executing the will or at the time of his death.
Starting out with these findings, the conclusion follows under the settled law of this state that these legacies aré a charge upon the real estate of the plaintiffs devised to them by the .testator. In
Brill
v.
Wright
(112 N. Y. 129) this question was thoroughly discussed by Andrews, J. The learned judge says: “ Where in a will general legacies are given, followed by a gift of all the rest and residue of the real and personal property of the testator, by a residuary clause iu the usual form and nothing more, it must now, we think, be regarded as the established rule in this state that the language of the will alone unaided by extrinsic circumstances is insufficient to charge the legacies upon lands included in the residuary devise. * "x" * The cases of •
Wiltsie
v.
Shaw
(100 N. Y. 191) and
McCorn
v.
McCorn
(100 N. Y. 511) illustrate very clearly the attitude of this court upon the subject. Both were cases substantially of wills giving general legacies, followed by the usual residuary clause. In each the question was whether the legacies were charged on
the lands. In
Wiltsie
v.
Shaw
it appears that the testator left a large personal estate, ample for the payment of debts and legacies, and no other circumstances appearing, it was held that a legacy given by the testator in his will, in trust for a son, was not a charge on the lands, which passed to the testator’s daughter under the residuary clause. In
McCorn
v.
McCorn
the legatees were the wife and son of the testator, and the gift of the legacies was followed by the usual residuary clause, under which all the testator’s real estate passed to four other children. It appeared that the will Avas made the day before the testator’s death, and that his personal estate was insufficient jo pay his funeral expenses. The legacies to the testator’s wife and son were mere pretenses,
‘
unless meant to be a charge on the real estate.’ Under these circumstances the court held that the legacies were intended to be charged on the realty, and sustained the claim of the legatees. We think the cases in this state establish these íavo propositions:
First.
That general language in a will giving legacies, followed by the usual residuary clause, is alone insufficient to charge the legacies on the realty ; and,
second,
that such language will justify such charge if it is made to appear by extrinsic circumstances, such as may under the rules of law be resorted to, to aid in the interpretation of written instruments, that it was the testator’s intention that the legacies should be charged on the land.”
In
Hoyt
v.
Hoyt
(85 N. Y. 142) it was held that legacies may be charged upon real estate without express direction, if the intention of the testator so to do can be fairly gathered from the provisions of the will; and extrinsic circumstances may be considered in aid of the terms of the will. Folger, J. (at page 147), states: “It is assumed that no man, in making a final disposition of his estate, will make a legacy, save with the honest, sober-minded intention that it shall be paid.
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Edward T. Bartlett, J.
This litigation arises over the will of Jacob V. B. Teller, late of the village of East Green-bush, now city of Rensselaer, Rensselaer county, and certain extrinsic circumstances. The will and the findings are lengthy, but the facts material to this controversy are exceedingly simple. This action was brought by the two daughters of the testator and asks for a judgment determining the rights of the parties in and to the property, real and personal, disposed of by the will.
The testator died leaving five children, the two plaintiffs, and three sons, David, William and Elisha,, seized of what is
known as the Rensselaer county farm property, a lot in the city of Rensselaer, and certain real estate in the city of Albany. The farm property was devised and afterwards conveyed to William and David, subject to a certain annuity to be paid to Elisha in his lifetime and legacies to be paid to his next of kin after his death.
The testator, by the residuary clause of his will, bequeathed and devised to his two daughters by a general provision the residue of his personal property and real estate. The effect of this disposition was to vest in the daughters the testator’s personal property, if any, the lot in the city of Rensselaer (formerly the village of Greenbush), and three parcels of real estate in the city of Albany, consisting of certain premises in Hawk street and numbers 51 and 59 Hudson avenue. The values of this real estate were neither proved nor found. The only finding having any bearing whatever upon the value is to the effect that 59 Hudson avenue was devised to the plaintiffs, subject to a mortgage of $3,000. It is found that the testator was possessed of no personal property whatever either at the time of making the will or at his death.
This appeal presents the single question whether the two legacies of $2,500.00 each, payable by the daughters of the testator (the plaintiffs in this action) to the next of kin of Elisha after 1ns death, are chargeable on the real estate devised to them by the residuary clause of the will.
It is found that since the testator’s death in February, 1892, the plaintiffs have paid the annuity of $75.00 a year out of their own property; it is also inconsistently found that for some time prior to the death of Elisha the $75.00 a year was paid by the plaintiffs to Elisha’s wife out of .the estate of William Teller. Hnder the residuary clause of the will this annuity was $125.00 a year, but it was cut down to $75.00 by the second codicil executed on the 13th of ¡November, 1890.
A preliminary point is made by plaintiffs appellants that certain real estate purchased by the testator after the execution of his will and devised to them, cannot be made charge
able with the payment of these legacies even if the real estate held at the time of the execution of the will is subjected to this lien. A will speaks from the time of the testator’s death, and the real estate owned by him at that time is chargeable with the payment of legacies that are a lien upon realty. It is to be remarked that at the time of the execution of the second codicil the testator was the owner of all the real estate of which he died seized. The codicil was a re-execution and re-publication of the original will, and is a further answer to this preliminary point.
However improbable it may seem that the testator died possessed of no personal property, in view of the elaborate provisions of the will based on the assumption that his estate was made up in part of personalty, and the additional fact that he purchased more real estate after the execution of the will, nevertheless we are bound by the finding, unanimously affirmed by the Appellate Division, that he was possessed -of no personal property, either when executing the will or at the time of his death.
Starting out with these findings, the conclusion follows under the settled law of this state that these legacies aré a charge upon the real estate of the plaintiffs devised to them by the .testator. In
Brill
v.
Wright
(112 N. Y. 129) this question was thoroughly discussed by Andrews, J. The learned judge says: “ Where in a will general legacies are given, followed by a gift of all the rest and residue of the real and personal property of the testator, by a residuary clause iu the usual form and nothing more, it must now, we think, be regarded as the established rule in this state that the language of the will alone unaided by extrinsic circumstances is insufficient to charge the legacies upon lands included in the residuary devise. * "x" * The cases of •
Wiltsie
v.
Shaw
(100 N. Y. 191) and
McCorn
v.
McCorn
(100 N. Y. 511) illustrate very clearly the attitude of this court upon the subject. Both were cases substantially of wills giving general legacies, followed by the usual residuary clause. In each the question was whether the legacies were charged on
the lands. In
Wiltsie
v.
Shaw
it appears that the testator left a large personal estate, ample for the payment of debts and legacies, and no other circumstances appearing, it was held that a legacy given by the testator in his will, in trust for a son, was not a charge on the lands, which passed to the testator’s daughter under the residuary clause. In
McCorn
v.
McCorn
the legatees were the wife and son of the testator, and the gift of the legacies was followed by the usual residuary clause, under which all the testator’s real estate passed to four other children. It appeared that the will Avas made the day before the testator’s death, and that his personal estate was insufficient jo pay his funeral expenses. The legacies to the testator’s wife and son were mere pretenses,
‘
unless meant to be a charge on the real estate.’ Under these circumstances the court held that the legacies were intended to be charged on the realty, and sustained the claim of the legatees. We think the cases in this state establish these íavo propositions:
First.
That general language in a will giving legacies, followed by the usual residuary clause, is alone insufficient to charge the legacies on the realty ; and,
second,
that such language will justify such charge if it is made to appear by extrinsic circumstances, such as may under the rules of law be resorted to, to aid in the interpretation of written instruments, that it was the testator’s intention that the legacies should be charged on the land.”
In
Hoyt
v.
Hoyt
(85 N. Y. 142) it was held that legacies may be charged upon real estate without express direction, if the intention of the testator so to do can be fairly gathered from the provisions of the will; and extrinsic circumstances may be considered in aid of the terms of the will. Folger, J. (at page 147), states: “It is assumed that no man, in making a final disposition of his estate, will make a legacy, save with the honest, sober-minded intention that it shall be paid. Hence, Avhen from the provisions of a will prior to the gift of legacies it is seen that the testator must have known that he had already so far disposed of his personal estate as that there would not be enough left to pay the legacies, it is rea
soned that the bare fact of giving a legacy indicates an intention that it shall be met from real estate. So it was reasoned in
Goodard
v.
Pomeroy
(36 Barb. 546-556). Courts have been urged to go a step further, and to say, that when the facts of the estate,
aliunde
the will, show that the testator must have known that if a legacy was to he paid only from personal estate, it would be a barren gift, he must have intended to subject the real estate to a liability for it.”
Since this was written in 1881, the courts have examined exti’insic facts to ascertain the intention of the testator, as is evidenced by the cases already cited.
In
Briggs
v.
Carroll
(117 N. Y. 288), Judge Finch writing for the court, cites with approval
Brill
v.
Wright (supra)
and
McCorn
v.
McCorn (supra).
^Referring to the merits of the case in which he was writing, he said: “ 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 $1,500.00, ‘ to be held and used by his mother as necessity might require for his education’; and to his grandson, the plaintiff, $500.00. * "x" * Here were legacies of $4,500.00 with hut $1,500.00 worth of personal property out of which to pay them. One of these was in lieu of the wife’s dower, and another for the education of the son Charles. The declared purpose of each gift leads strongly to the inference that the testator did not suppose that they would, or mean that they should, abate, and be largely reduced. * * * Either he intended to sacrifice the comfort and welfare of his wife and son Charles for the benefit of his older and married children, and deliberately continued to make their situation worse by putting personal estate into land and incurring debts, or he supposed that their legacies would rest upon the real, estate. I think we are justified in holding that the latter was his understanding of the will.”
What language could be more apposite to the case at bar? It is apparent from the provisions of the "will before ns that Elisha was an unfortunate son who needed a father’s care. The testator sought to discharge that duty in drawing his will, and a portion of his scheme was contained in .the residuary
clause which devised and bequeathed to his two daughters all his real and personal estate not disposed of by the previous provisions of the will. He not only' directed each of his daughters to pay to Elisha the sum of $125.00 a year, afterwards cut down to $75.00 by the second codicil, but provided that each of them should set apart out of the personal property he was bequeathing to them the sum of $2,500.00, and invest the same, and hold it in trust, to be paid to the next of kin of Elisha upon his death. The testator also imposed, substantially, similar provisions upon the devises made to his sons David and William.' It is not to be assumed that this testator inserted such provisions as these in his will unless he was of the opinion that there would be a sufficient amount of personal property passing to his daughters at the time of his death, thereby enabling them to carry out his requirements of setting apart a trust fund of $2.500.00 each for the next of kin of his unfortunate son Elisha.
It is not to he presumed that this testator contemplated the slightest uncertainty as to the payment of these legacies to the next of kin of Elisha. He had made ample provision for all his other children except Elisha, and it was clearly his desire to provide for one who could not care for himself and his next of kin. It is natural to presume that the testator was most solicitous in regard to the carrying out of the provisions relating to Elisha and his children. ' If it be the fact that testator owned no personal property, either at the time of making the will or when he died, and we must assume that such was the situation under the findings, we are left only to conjecture that he met with subsequent reverses, or made changes in his investments.
The judgment of the Appellate Division appealed from should be affirmed, with costs.