The judge, at special term, found and decided, as matter of fact, that the personal estate of Peter McLoughlin was not sufficient, after the payment of his debts, to pay in full the legacies given and bequeathed by his will. He also found and decided, as a conclusion of law, that the real estate of the testator was not liable to pay the said legacies, or any deficiency, after the application of the whole personal estate, to the payment thereof.
It does not appear from the complaint, or from the evidence in this case, what the term of the lease of 197 Chatham street, of which the testator died seised or possessed, was ¡ whether it was for a term of years, or for the life of another, or in perpetuity ; but as the judge, notwithstanding his decision and conclusion of law, that the real estate was not liable to contribute to the payment of the legacies, by the judgment which was entered, authorized the lease to be sold by the executors, and the proceeds to be applied” to the payment of the legacies given by the first article of the will, after first providing for the payment of the annuities to Mary McLoughlin, and to the Roman Catholic Orphan Asylum, specifically charged thereon, I must assume that he did not consider the lease to be real estate, and that it must have appeared, or have been conceded on the trial, that the lease was for a term of years, or for the life of another, and was deemed to be assets of the testator, and as such to have passed to his executors on his death.
As the plaintiffs, the executors, and the defendants, Alice Muldoon and others, the legatees mentioned in the first article of the will, excepted to such decision of the judge, that the real estate was not liable to contribute to the payment of the legacies, and have appealed from such decision, I assume, what does not appear very clearly from the case, but was conceded on the argument, that the proceeds of the sale of the lease of 197 Chatham street, after providing for the payment of the annuities and legacies specifically charged thereon, will not be sufficient, together with the other personal estate of the testator, to pay his debts and the other legacies in full.
*468The question then is, whether the real estate of the testator, of which he died seised in fee, is liable to pay the legacies given by the first article of the will, or any deficiency, after the application of the personal estate, and of what shall remain of the proceeds of the sale of the lease, after providing for the payment of the legacies expressly charged on the lease.
By the first article of the will, the testator gives to his two sisters Bridget Alice Muldoon and Bridget Byrnes, and to his nephew John McLoughlin, and to his niece Bridget Byrnes, severally, legacies amounting in the aggregate to $11,000, and he directs, “that the said legacies be paid in such order, and by such installments, or otherwise, as my executors may deem most for the interest of my estate, and that they pay interest thereon, from the time of my death, half yearly, until they shall be respectively paid.” By the second article, he gives an annuity of $250 a year for the term of her life to his half sister Mary McLoughlin; by the third, an annuity or legacy of $100 a year to the Boman Catholic Orphan Asylum in the city of Hew York, until the lapse of 21 years from the time of his death, or until- the death of the survivor of his two youngest children living at the time of his death, or the death of his only child, if he left but one; by the fourth, he directs his executors to apply, at their discretion, $50 a year to the relief of the poor of St. Mary’s church in Grand street, in the city of Hew York, for and during the same teirm that he directs the $100 a year to be paid to the Boman Catholic Orphan Asylum. The legacies given by the 2d, 3d and 4th articles of the will, he directs to be a charge upon his leasehold estate, 197 Chatham street. By the fifth article of his will, the testator devises and bequeathes to his wife, so long as she shall continue his widow, his dwelling house, Ho. 232 Madison street, and all his household furniture.
Other than this devise to his wife, there is no devise of any part of the real estate, worth, it appears, over $70,000, until you come to the seventh article of the will. This article of the will is curiously and somewhat obscurely drawn, and in*469tended very carefully to avoid any unlawful restraint upon the power of alienation. It is enough, for the purpose of deciding the questions before us on this appeal, to say, that the seventh article of the will is, in effect, a devise and bequest of all the rest, residue and remainder of the testator’s estate, real and personal, to his executors, upon certain express trusts, the validity of which are not questioned in this action; so that on the death of the testator, all his estate, real and personal, except the estate and interest devised and bequeathed to his wife during her widowhood, in his dwelling house and furniture, vested in his executors in trust, as .executors, and under the seventh article of the will, subject to the payment of the debts and legacies. Indeed, if the testator had directly and in the first instance devised and bequeathed all his estate, real and personal, subject to the estate and interest given his wife during her widowhood, to his executors, in trust, therefrom to pay his debts and the legacies, and to hold the residue and remainder thereof upon the trusts and for the uses declared in the seventh and subsequent articles of the will, his intention that the legacies should be paid absolutely and in full, before the residue and remainder could or should he held and applied upon the trusts and to the uses declared in the seventh and subsequent articles, would not have been more apparent.
The whole frame and scheme of the will plainly shows that the testator intended the legacies to be paid absolutely and at all events. The devise and bequest, by the seventh article, to his executors, in trust for his children, &c., is not only in words a devise and bequest of the rest, residue and remainder, after the previous bequests of the legacies, but he directs interest to be paid on those not charged specifically on his leasehold interest in 197 Chatham street, payable as annuities from the time of his death. Why should he direct interest to he paid on these legacies from the time of his death, if he did not intend that they should he paid absolutely and at all events ? Probably the testator intended that the income from *470his real estate, including 197 Chatham, street, should help pay the legacies given hy the first article of the will; hence he directs those legacies to be paid in such order and by such installments, or otherwise, as his executors should deem most for the interest of his estate.
It is plain to me, that these legacies are a charge upon the whole real estate of the testator, and that if necessary, his real estate, other than the leasehold interest in 197 Chatham street, should and must contribute to the full payment thereof.
The judge, at special term, also held and decided that the bequest of the annuity of $50 a year for the use of the poor of St. Mary’s church in Grand street, was invalid and void. As appears from the judge’s opinion, his decision on this question was a mere matter of form, so that the question might go up to the general term with the other question as to the legacies. There can be no doubt that the direction of the testator to his executors to apply, at their discretion, $50 a year to the relief of the poor of St. Mary’s church, was valid and can be enforced. The testator, in effect, left nearly the whole of his estate to his exebutors; why could he not direct them out of it to pay $50 a year to the poor of St. Mary’s church ? He could have paid that sum yearly for their relief in his lifetime, and he could, by his will, direct his executors to do it after his death. The discretion given to the executors as to the application, does not affect the validity of the direction or bequest. It would be very extraordinary if there were no poor of that church; The executors can and must act, and exercise their discretion. I can see no principle upon which this direction or bequest is invalid. The bequest is not to the poor, but to the executors, for the benefit of the poor. The executors take the whole estate, and can execute the charity. The testator has seen fit to give them a discretion as to the application of the annual payment, and they can and ought to exercise that discretion.
The judgment, at special term, must be modified so as to *471conform to the conclusions of this opinion on the only two questions which appear to he presented by the appeal.
[New York General Term, December 22, 1859.The costs of all parties on this appeal must be paid out of the estate of the testator in the hands of the plaintiffs.
Roosevelt, Ingraham and Sutherland, Justices.]