The questions which we have to decide are: First. "Whether the legacies were a charge upon the real estate devised; and, Second. Whether that real estate was discharged of the legacies by the conveyances dated January 9, 1875. The plaintiff’s are the-children of a deceased child of the testator. The gifts made by him are contained in the second and third clauses of his will. By the second, the testator gave and devised to each of the plaintiff’s a legacy of $1,500. By the third, he gave and devised “ all the rest, residue and remainder” of his real and personal estate to his wife for life, with remainders in specified shares to his. children.
If the first question was res integra, the argument made on behalf of the defendants might possibly prevail. But at this late day, I think that there ought not to be a serious question upon the subject in the mind of any person. The words, “rest, residue and. remainder ” in a devise of real and personal estate, have been for a long period interpreted to mean that which is left of both realty and personalty, after what has been given before has been deducted. There have been contrary decisions ; but the decided preponderance of authority is on the side of such construction. (Greville v. Browne, 7 H. of L. Ca., 689; Lupton v. Lupton, 2 Johns. Ch., 623; Shulters v. Johnson, 38 Barb., 80; Reynolds v. Reynolds, 16 N. Y., 257.) Here the real and personal estate are united together in one gift, and that gift is only of the “ rest, residue, and remainder” thereof — that is to say, after paying the legacies,, no matter how, the donee shall have the property discharged of *197the same. The general rule that the personal estate is the fund •out of which the legacies are to be paid does not govern the case. If they are so paid very well. If they are not paid they remain a charge upon the whole estate. As was said m Grenville v. Browne (supra), “it is considered that the whole is one moss — that part of that mass is represented by legacies, and that what is afterwards given is given minus what has been before given, and given, therefore, subject to the prior gift.” The direction to pay debts does not affect this question in any way. The only effect is to give priority to creditors over all legatees and devisees — creditors would have had such priority if no direction to pay debts liad been inserted in the will.
With respect to the second question, my answer must be in the negative. The first deed made on the 9th of January, 1875, purqiorts to have been made in execution of a naked power of sale, rmaccompanied by any trust or duty granted to the testator’s widow by the codicil to his will; but in fact there was no execution of the power, for the transaction had not even the semblance of a sale. It was a mere contrivance to vest the estate of the devisees in the> grantee for the more convenient management and disposition of it. The assent of the plaintiffs thereto was asked and obtained on the ground that it was necessary, because the power of sale was granted upon condition that the sale should be approved by each and every of the heirs of the testator. Such .was the fact. The deed referred to, conveyed the lands devised to Adelia E. 'Hoyt, one of the devisees, but it expressed no consideration. A second deed was executed bearing the same date and acknowledged on the same day, namely March 5, 1875, which conveyed the same lands to the same grantee. The grantors in the last deed are the widow and devisees of the testator, together with the wives of such of the men as were married, and the plaintiffs. This deed was made for the same purpose as the first. It was made without consideration and no consideration is expressed therein. The signatures of the plaintiffs to both deeds were obtained solely upon the representation that it was necessary that they should execute said deeds in order to obtain payment of their legacies, because the codicil required their, approval as well as 'that of the testator’s children, of any sale of the real estate devised. *198The evidence shows very clearly that a discharge of the lands from the legacies was not sought, and that that object was not in the contemplation of any of the parties to the deeds. They, no doubt, supposed that the legacies were not a charge upon the lands. The facts stated are sufficient to prevent the operation of the deeds or either of them as a discharge of the lands from the legacies, except as against bona fide purchasers. Adelia E. Hoyt, the grantee in both deeds, is not such a purchaser nor are her grantees, for they were all participants in both transactions.
I am also of opinion that the mortgagees before the court have acquired no rights superior to those of the plaintiffs, even assuming that such mortgagees are not affected with notice of the representations which induced the plaintiffs to unite in the deeds. For each of them is chargeable with notice that the deeds were made without consideration. Moreover the plaintiffs had no estate in the lands conveyed. The conveyances operated as grants, and passed no greater estate or interest than the plaintiffs possessed, and as they possessed no estate none passed from them. (1 R. S., 739, §§ 142,143.) The charge upon the lands in their favor was neither a jus in re nor a jus ad rem. It was a mere lien. That could. be discharged only by an instrument which operated as a release. Although the deeds contain words of release, yet they were inserted as words of conveyance for the purpose of passing the legal estate only. They were not intended to discharge an equitable lien, and they cannot therefore have that effect. (1 R. S., 748, § 2; Power v. Lester, 23 N. Y., 527; Gillig v. Maass, 28 id., 198, 210.) Tne transaction was wholly inappropriate for that purpose Ackerman, one of the mortgagees, was an actual participant in the transactions, and knew all about them. The attorney for the other mortgagees knew the purpose for which the deeds were made, and that there had been no valid execution of the power of sale contained in the' codicil, and that the deeds were made without consideration, and that the respective parties thereto did not intend that the charge in favor of the plaintiffs should be discharged. The mortgagees are chargeable with notice of all the facts which came to the knowledge of their attorney while acting in their behalf. The fact that he also acted for the mortgagors makes no difference. (Story Eq. Jur.; Redfield, §§ 397, 408 n.; Holland v. Hart, 40 L. J. Ch., *199701; Ingalls v. Morgan, 6 Seld., 184; Gray v. Green, 12 Hun, 598.) The will itself afforded notice of the charge, and the facts of which their attorney had notice are sufficient to preclude all claim on their part that the deeds were intended to operate as a discharge. (Harris v. Fly, 7 Paige, 427.)
Nor are the plaintiffs estopped from setting up the charge. They had no intention of influencing the mortgagees or either of them, nor were the mortgagees in fact influenced by their signatures to the deeds, beyond the effect which it was intended such acts should have, namely, a formal approval of the sale to one of the devisees.
The judgment should be affirmed, with costs.
Present — Barnard, P. J., and Gilbert, J.; Dykman, J., not sitting.Judgment affirmed, with costs.