This action was brought to obtain a construction of the last will and testament of Jacob V.B. Teller, deceased. The testator, after making provisions for his widow and sons, provided that "All the rest and residue *Page 36 of my real and personal property I devise and bequeath upon my wife's decease to my daughters Margaret M. Strong and Anna M. Irwin, share and share alike, subject to said payment to their brother William, and subject also to the payment by each of them of the sum of $125 a year to my son Elisha P. Teller during his life, in half-yearly payments, and in order to secure such payment I direct that each of them shall set apart out of the personal property hereby bequeathed to her the sum of $2,500, and invest the same and hold it in trust and pay the income thereof to the amount of $125 a year to said Elisha, and if there be any deficiency in the income she shall make up what it falls short of such amount of $125 out of her own means, and shall not be entitled to commissions or compensation as trustee, but payment of such deficiency shall be only a personal debt to Elisha and not a charge upon her property." The will further provided that with reference to the trust fund directed to be held by each of his daughters for the benefit of his son Elisha, that upon the latter's death such funds shall "be paid over and transferred to his next of kin." By a codicil he reduced the amount to be paid to Elisha by each daughter annually from $125 to $75.
The testator died leaving no personal property other than that which had been specifically bequeathed to his sons and wife, and consequently no personal property came to the hands of the daughters under the residuary clause of the will. The only property that came to them was a lot on Hawk street and two lots on Hudson avenue in the city of Albany, and a vacant lot located on Second street in the city of Rensselaer 25 feet front by 100 feet deep, which is represented to be of little value. One of the Hudson avenue lots was so heavily incumbered that it was subsequently sold upon the foreclosure of a mortgage and the title passed to other persons. The other lot on Hudson avenue was incumbered by a mortgage for $3,000.
The daughters, receiving no personal property from the testator, were unable to set apart the trust of $2,500 each, and there *Page 37 has never been such a fund in their hands. They, however, out of the estate coming to them, annually paid the sum of $75 each to their brother Elisha during his lifetime. The respondents, the children of Elisha, now demand the payment to them of the sum of $2,500 from each of the daughters, making a total of $5,000, and ask that it be made a charge upon the real estate devised to the daughters. The question is, therefore, presented as to whether the testator so intended.
In determining this question it must be borne in mind that it distinctly appears that at the time of the testator's death his widow held in her name a number of mortgages upon real estate amounting to a number of thousands of dollars and that in making this provision he supposed that he was possessed of sufficient personal property to make up the "trust fund," as he called it.
The testator at the time of making his will was well advanced in years, and he first gave to his wife the use of all his property of every description, both real and personal, during the term of her natural life, giving her full power to sell and convey and to use so much of the principal as she might see fit. He then upon her death disposed of that which should be left to his sons and daughters. His widow survived him about a year. It is not uncommon for an aged husband who has lived with his wife for many years to regard the property taken in the name of the wife as his, and attempt to dispose of it by will. But, however it may be in this case, one fact is apparent, and that is he did not intend to disinherit his daughters. When he came to securing the payment of the annuity to his son, he directed that each of his daughters shall set apart "out of the income of the personal property hereby bequeathed to her the sum of $2,500." It will be observed that he specifically limits the fund to be set apart to the personal property bequeathed to each daughter. Then fearing that there might be some deficiency in the "income" — not in the principal — he requires the daughter to make up such deficiency, if any, and pay the same out of her own means. But while requiring the payment of such deficiency *Page 38 out of their own means, he makes that only a personal debt to Elisha, and then for the purpose of removing all doubt, provides that it shall not be a charge upon the daughters' property. In other words, it shall not be a lien upon their real estate. Then again, upon the death of Elisha he does not direct that the daughters shall pay to his grandchildren the sum of $5,000, but he does direct that "such fund," referring to the fund to be set apart by them out of the personal property, shall be paid over and transferred to his next of kin. I, therefore, am of the opinion that the testator never intended that the $5,000 should be made a lien on the real estate devised to the daughters.
The judgment should be reversed and a new trial ordered, with costs to abide the final award of costs.
GRAY, HISCOCK and CHASE, JJ., concur with EDWARD T. BARTLETT, J.; CULLEN, Ch. J., and WILLARD BARTLETT, J., concur with HAIGHT, J.
Judgment affirmed.