Chester, J.:
The only question presented for determination is whether the two legacies of $2,500 each, directed to be paid to the next of kin of Elisha on his death by Anna M. Irwin and Margaret M. Strong, are charges upon the real estate devised to them, as it is conceded that the two sums of $2,500 directed to be paid to the next of kin of Elisha on his death by his two brothers, David A. and William, are charges upon the lands devised to them.
The plaintiffs contend that the premises 59 Hudson avenue, the Hawk street property and the lot in Rensselaer are not subjected to any charge, and that the two legacies of $2,500 directed to be paid to the next of kin of Elisha by the daughters “ out of the personal property” must fail because neither daughter ever received any personal property from the estate.
Dnder the language of the will, the farms owned by the testator at the time of making his will were upon the death of his wife devised to his sons and whatever other real estate and personal property he had was given to his daughters, the farm lands devised to David and William, and the personal property bequeathed to the daughters to be subject to the payment of the annuity for the benefit of Elisha.
At the date of the execution of the will the only lands the testator owned were the farm lands, a small lot in Greenbush (now Rensselaer) and the Hawk street property. He afterwards acquired the premises 51 Hudson avenue and 59 Hudson avenue, Albany, each [22]*22subject to a mortgage thereon. The court has found that at the time the testator made his will he had no money or other personal property which could be set apart by either of his daughters as provided by the will for the payment to Elisha or to his children in case of his death, and this finding appears to have sufficient support in the evidence. We may assume that the personal estate of the testator, if he had any at all when he made his will, was thereafter depleted by these purchases of real estate.
At the time of the execution of the codicils the testator owned all the real property which he had at the time of his- death and the codicils had the effect of a republication of the will as of their respective dates. (Van cortlandt v. Kip, 1 Hill, 590.)
Although the learned trial court' wrote no opinion, authorities are not wanting in support of the conclusion that these legacies are charged upon the real estate of the other devisees.
In Briggs v. Carroll (117 N. Y. 288) a will was construed in which testator gave his wife a legacy of $2,500 in lieu of dower* and his son a legacy of $1,500 to be used for his education, and a legacy of $500 to the plaintiff, his grandson. He gave the residue of his real and personal estate to be divided equally among his four children. At the time of the execution of the will the testator’s personal estate was not in excess of $1,500, and he was substantially free from debt. Soon after making the will he used $700 of his personal estate in making a-payment upon some real estate purchased by him, and at the time of his death his personal property was insufficient to pay his debts, and it was held that testator intended the plaintiff’s (the grandson’s) legacy to be a charge upon the realty. 'Finch, J., in writing the opinion, says : “ In Brill v. Wright (112 N. Y. 129) the rule prevailing in this State is held to be that a residuary clause coming after a bequest of legacies and disposing of both the real and personal estate together and by one form of expression will not alone justify a construction that the legacies are charged upon the land, but will do so where it appears in addition from such extrinsic facts as may be resorted to, that there was, in truth, an intention to charge the debts upon the land; and we have inferred that intention where the personal estate of the testator was, at the date of the will, largely and clearly insufficient for the payment of the legacies given, and the testator must have known [23]*23and understood that they could not be paid except by the aid of the real estate. That was the doctrine of McCorn v. McCorn (100 N. Y. 511).”
It was also held in Hoyt v. Hoyt (85 N. Y. 142) that legacies may be charged upon the real estate without express direction therefor in the will if the intention of the testator so to do can be fairly gathered from all the provisions of the will, and that extraneous circumstances may be considered in aid of the terms of the will. Chief Judge Folger, in writing the opinion of the court in that case, said: “ 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, when 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 reasoned that the bare fact of giving a legacy indicates an intention that it shall be met from real estate. * * * It is sometimes held that where the only provision for a younger child is a legacy, that fact is of great weight in-determining that it was the testator’s intent to make it payable at all events, and so out of the realty if the personalty is not enough. "(Roper on Legacies, chap. 12, § 2, p. 454, subd.'2.
In such case courts go a great way in order to carry out the provisions of a will, founding the intention to make all parts of the estate liable upon the presumption of the strong desire and purpose that must have existed, that one natural object of testamentary bounty should not receive and another go away' empty. In one case it is said that this fact alone is enough to turn the scale where the provisions of the will are otherwise dubious.”
It is also a well-recognized rule that when a will is capable of two constructions, one of which will exclude from the benefit of its provisions the issue of a deceased child, and the other of which will [24]*24include such issue, the latter construction should be adopted. (Matter of Brown, 93 N. Y. 295; Whitney v. Whitney, 63 Hun, 59 ; Mullarky v. Sulliwan, Id. 156.)
Within the authorities referred to it can be seen that the testator, when we consider the entire will in the light of the extrinsic circumstances shown, intended that the legacies to the next of kin of Elisha should be a charge upon the real estate devised to his other children including that devised to his daughters. This conclusion is not impaired by the fact that the property devised .and bequeathed to the daughters was so devised and bequeathed subject to the payment by each of an annuity to Elisha, which the testator directed - each of them to secure by setting apart “ out of the personal prop-, erty hereby bequeathed to 'her the sum of $2,500, and invest the same and hold it in trust ” for'his benefit, as that provision related only to the annuity and not to the gift over of the principal to the next of kin of Elisha.,
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Chester, J.:
The only question presented for determination is whether the two legacies of $2,500 each, directed to be paid to the next of kin of Elisha on his death by Anna M. Irwin and Margaret M. Strong, are charges upon the real estate devised to them, as it is conceded that the two sums of $2,500 directed to be paid to the next of kin of Elisha on his death by his two brothers, David A. and William, are charges upon the lands devised to them.
The plaintiffs contend that the premises 59 Hudson avenue, the Hawk street property and the lot in Rensselaer are not subjected to any charge, and that the two legacies of $2,500 directed to be paid to the next of kin of Elisha by the daughters “ out of the personal property” must fail because neither daughter ever received any personal property from the estate.
Dnder the language of the will, the farms owned by the testator at the time of making his will were upon the death of his wife devised to his sons and whatever other real estate and personal property he had was given to his daughters, the farm lands devised to David and William, and the personal property bequeathed to the daughters to be subject to the payment of the annuity for the benefit of Elisha.
At the date of the execution of the will the only lands the testator owned were the farm lands, a small lot in Greenbush (now Rensselaer) and the Hawk street property. He afterwards acquired the premises 51 Hudson avenue and 59 Hudson avenue, Albany, each [22]*22subject to a mortgage thereon. The court has found that at the time the testator made his will he had no money or other personal property which could be set apart by either of his daughters as provided by the will for the payment to Elisha or to his children in case of his death, and this finding appears to have sufficient support in the evidence. We may assume that the personal estate of the testator, if he had any at all when he made his will, was thereafter depleted by these purchases of real estate.
At the time of the execution of the codicils the testator owned all the real property which he had at the time of his- death and the codicils had the effect of a republication of the will as of their respective dates. (Van cortlandt v. Kip, 1 Hill, 590.)
Although the learned trial court' wrote no opinion, authorities are not wanting in support of the conclusion that these legacies are charged upon the real estate of the other devisees.
In Briggs v. Carroll (117 N. Y. 288) a will was construed in which testator gave his wife a legacy of $2,500 in lieu of dower* and his son a legacy of $1,500 to be used for his education, and a legacy of $500 to the plaintiff, his grandson. He gave the residue of his real and personal estate to be divided equally among his four children. At the time of the execution of the will the testator’s personal estate was not in excess of $1,500, and he was substantially free from debt. Soon after making the will he used $700 of his personal estate in making a-payment upon some real estate purchased by him, and at the time of his death his personal property was insufficient to pay his debts, and it was held that testator intended the plaintiff’s (the grandson’s) legacy to be a charge upon the realty. 'Finch, J., in writing the opinion, says : “ In Brill v. Wright (112 N. Y. 129) the rule prevailing in this State is held to be that a residuary clause coming after a bequest of legacies and disposing of both the real and personal estate together and by one form of expression will not alone justify a construction that the legacies are charged upon the land, but will do so where it appears in addition from such extrinsic facts as may be resorted to, that there was, in truth, an intention to charge the debts upon the land; and we have inferred that intention where the personal estate of the testator was, at the date of the will, largely and clearly insufficient for the payment of the legacies given, and the testator must have known [23]*23and understood that they could not be paid except by the aid of the real estate. That was the doctrine of McCorn v. McCorn (100 N. Y. 511).”
It was also held in Hoyt v. Hoyt (85 N. Y. 142) that legacies may be charged upon the real estate without express direction therefor in the will if the intention of the testator so to do can be fairly gathered from all the provisions of the will, and that extraneous circumstances may be considered in aid of the terms of the will. Chief Judge Folger, in writing the opinion of the court in that case, said: “ 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, when 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 reasoned that the bare fact of giving a legacy indicates an intention that it shall be met from real estate. * * * It is sometimes held that where the only provision for a younger child is a legacy, that fact is of great weight in-determining that it was the testator’s intent to make it payable at all events, and so out of the realty if the personalty is not enough. "(Roper on Legacies, chap. 12, § 2, p. 454, subd.'2.
In such case courts go a great way in order to carry out the provisions of a will, founding the intention to make all parts of the estate liable upon the presumption of the strong desire and purpose that must have existed, that one natural object of testamentary bounty should not receive and another go away' empty. In one case it is said that this fact alone is enough to turn the scale where the provisions of the will are otherwise dubious.”
It is also a well-recognized rule that when a will is capable of two constructions, one of which will exclude from the benefit of its provisions the issue of a deceased child, and the other of which will [24]*24include such issue, the latter construction should be adopted. (Matter of Brown, 93 N. Y. 295; Whitney v. Whitney, 63 Hun, 59 ; Mullarky v. Sulliwan, Id. 156.)
Within the authorities referred to it can be seen that the testator, when we consider the entire will in the light of the extrinsic circumstances shown, intended that the legacies to the next of kin of Elisha should be a charge upon the real estate devised to his other children including that devised to his daughters. This conclusion is not impaired by the fact that the property devised .and bequeathed to the daughters was so devised and bequeathed subject to the payment by each of an annuity to Elisha, which the testator directed - each of them to secure by setting apart “ out of the personal prop-, erty hereby bequeathed to 'her the sum of $2,500, and invest the same and hold it in trust ” for'his benefit, as that provision related only to the annuity and not to the gift over of the principal to the next of kin of Elisha.,
Ho personal property having been received by the daughters from the testator’s estate they were unable^ of course, to set apart such trust fund “ out of the personal property,” and no such trust fund’was ever provided by them from any source. They nevertheless paid the annuity as reduced by the codicil to their brother as long as he lived.
After providing in another clause for the payment over to the next of kin of Elisha on his. death of the trust fund of $2,500, “ directed to be held by each of my daughters for said Elisha;” and in like manner that “ each of his brothers shall pay to said Elisha’s . next of kin the sum of $2,500,” the will contains a clause- of much significance in determining the question here involved. Tins clause directs that in case either sáid William or said David, or either of said daughters should die during the life of his wife leaving issue surviving her (that is, before they came into possession of any part of his estate) “ such issue to take the share which the parent would have received if living, and the share of any child dying in the lifetime-oi my wife to remain subject to ^ ■ the payment of twenty-five hundred dollars (or the trust fund provided to secure the same) to the next of kin of Elisha on his death.”
It is true that neither of the daughters died during the life of their-mothér, but the clause quoted clearly shows that the testator [25]*25intended that his estate, which had been given to his five children, should go, in-the event named, to their respective next of kin if they left any and that the share of the estate, whether real or personal, given to William and David and to the two daughters should “ remain subject to * * *• the payment of twenty-five hundred dollars (or the trust fund provided to secure the same) to the next of kin of Elisha on his death.”
This case is not one free from difficulty, but in view' of facts that the testator left no personal property out of which the legacies to the next of kin of Elisha could be paid, and that it is clear that he intended they should have the share in the estate which was directed to be set apart in trust for their father, we have concluded that the learned trial court was right, under the authorities, in construing the will so as not to exclude them from its provisions.
The judgment should be affirmed, with costs.
Judgment unanimously affirmed, with costs.
See Vol. 1, 1st Am. ed.— [Rep.