In view of the conflicting opinions of the learned judges of the supreme court, it is apparent that reasonable doubts can be entertained upon the point 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 the 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 *Page 194 of the kind appears. On the contrary, the personal property in the hands of the executrix 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 the 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 controversy 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 *Page 195 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 the purposes following: they to invest said sum in the best securities they can obtain, to use the clear income thereof in their discretion, for the benefit and maintenance of my son George, during his natural life." He thus takes out of his personalty $20,000. It is this which they are to invest, and the income from such investment is the legacy in question. There is no direction to sell real estate; no mingling of the two species of property is called for; one only is pointed out. The appellant's contention requires the discovery of an intent the reverse of that fairly implied in these words — an intent to secure the income by the whole of the estate rather than by this specific and designated part; an intent to bind not only the part selected from the personalty, but the whole of that and the realty also. Such a construction would seem to exclude the evident purpose of the testator. But the appellant relies upon the clause by which is given to the plaintiff, the testator's daughter and one of the executors, the residue of his "estate, real and personal," as indicating the intention of the testator to charge the real estate. In view of the character of the testator's property, his freedom from debt and the limited sum of legacies, he must have known that after providing for them according to his directions there would remain more than an equal amount of personal property and all his land, and that the remainder of one and all the other would constitute the residue of his estate. He could not have supposed there would be a mere fragment of each.
I have examined the cases cited by the learned counsel for the appellant. I find none which, under the circumstances of this case, furnishes a rule favorable to the appellant's contention. In Harris v. Fly (7 Paige, 421), the personal estate of the testator was insufficient to pay his legacies, and the devisee of the land was, by the terms of the devise, directed to pay them. Substantially the same facts appear in the cases cited *Page 196 by the chancellor in his opinion, and among others, in that ofLypet v. Carter (1 Ves. Sr. 500), to which our attention is also directed by the appellant, and upon those the rule was formulated that where real estate is devised upon condition to pay a legacy, or with direction to the devisee to pay the legacy in respect to the estate so devised to him, and "because that real estate has been thus devised, it is in equity charged with the payment of the legacy, unless there is something in the will to rebut the legal presumption, or from which it can be inferred that the testator intended to exempt the estate devised from that charge." In the case at bar there is more than sufficient personal property; there is no conditional devise nor expectation even expressed that the devisee as such shall make any payment, nor as executor, except from the personalty.
The reasoning as well as the judgment in Myers v. Eddy (47 Barb. 271), and Reynolds v. Reynolds (16 N.Y. 259), seem to be with the respondent. It is not necessary to refer to others. For the whole question is one of intent, to be searched for in the light of adjudged cases indeed, but to be determined after all upon the language of the will and the circumstances surrounding the testator, and from neither source can we deduce any thing which will permit us to imply a purpose on his part to make the legacy a charge upon the land.
No other point is raised. It follows that the decision of the General Term was right. It should, therefore, be affirmed, and the respondent, in pursuance of the stipulation, have judgment absolute against the appellant.
All concur, except ANDREWS, J., absent.
Order affirmed and judgment accordingly.