This action was brought to partition certain lands, as to which ■Alexander Loppin died intestate. He left a last will and testament, which was executed some time before he acquired the property which is the subject of this controversy, by which, among other things, he gave to each of his three children the sum of $10,000, and directed that, after a year, the .house in which he lived, and which was the only real estate then owned by him, should be sold at public auction, “ and, after paying the sum as before said, the balance to be divided into five equal part between the. survivors or their issue, the said Aimee Bell, Heloise Loppin, Albert Loppin, Alice Loppin, issue of Alexander Loppin, Jeannette, Edward and Irene Loppin., issne of Edouard Loppin.” The house has been sold by the executors in obedience to the mandate of the will, the ' sum realized therefrom being about $20,000. As this sum is inadequate to pay more than about two-thirds of the legacies, the legatees in this action claim the right to have the proceeds of the real
The personalty is the primary fund for the payment of legacies. If the proceeds thereof, after taking therefrom the expenses of administration and the sum necessary to pay the debts of a deceased, prove insufficient to pay the legacies in full, then the legacies must be paid proportionately, unless it appears upon the face of the will, or from the will read in connection with the surrounding circumstances, that it was the intention of the testator that the payment of the legacies should be charged upon the whole, or some part, of his real estate. The intestate intended that the house in which he lived, and the only house which he owned at the time of the execution of the will, should be used in payment of .the legacies.- He ordered his executors to sell it and to apply the proceeds to that purpose, so far as the same should be needed. But as to the real estate now in controversy, there is no indication in the will of an intention to have the payment of the legacies made a charge upon it. Indeed, he did not own it at that time, nor does it appear that he then contemplated owning it or any other real estate. There is no foundation, therefore, for that portion of the decree which adjudges the legacies to be a charge upon the premises, and it should be modified accordingly.
The appellants also insist that the proceeds resulting from the sale of the house, out of which the testator directed the legacies to be paid, are chargeable, in the first instance, with the payment of the testator’s debts. But we agree with the conclusion reached by the trial court, that it was the intention of the testator to appropriate the proceeds of the house and lot mentioned in the will to the payment of the legacies; and if, at the time of his death, the personalty was insufficient for that purpose, then such other real estate as the testator had should, in the first instance, be appropriated to the payment of his indebtedness.
The decree further provides that after the payment of the costs, referee’s fees, expenses of sale, taxes, assessments, water rates, insurance, liens established before the death of the said decedent, and the debts hereinbefore referred to, the rest' of the money should be-deposited with the city chamberlain to the credit of the parties
The claims of the creditors of the testator have been admitted by
The 27th paragraph of the decree should be modified as follows : “ Twenty-seventh. That as this action has been brought before three-years have elapsed from the granting of letters testamentary upon the estate of said décedent, Alexander Loppin, otherwise known as Alexander G-. Loppin, from whom plaintiff derives her- title, the final judgment to direct that the proceeds of the sale remaining after providing for the payment of the costs, referee’s fees, expenses of sale, taxes, assessments, water rates, insurance, liens established before the death of the said decedent, be forthwith paid into the Surrogate’s Court by the referee making such sale, pursuant to sections 2798 and 2799 of the Code of Civil Procedure, by depositing the same with the city chamberlain of the city of New York.”'
As thus modified the judgment should be affirmed, with costs to these appellants payable out of the fund.
Van Brunt, P. J., Rumsey, Patterson and O’Brien, JJ., concurred.
Judgment modified as directed in opinion, and affirmed as modified, with costs to appellants payable out of - the fund.