This action was brought to obtain a construction of the will and codicil of Bobert Thompson, late of the city of New York, deceased, who died in 1866.
Two questions were presented for consideration to the court below ; the first arising from what is properly designated the palpable omission of a word in a provision of the will, to which reference *337will be made; and tbe second whether the legacies were chargeable upon the real estate, the personal estate having been insufficient to pay them.
The provision under which the first question arises is as follows : At the death of my said beloved wife my executors shall and dispose of all my estate, and the accumulations and profits thereof, -either by public or private sale, and divide the avails thereof, share -and share alilre, to and among my children, Mary Ann Baird, Isaac 'Thompson and Robert Thompson.” It was properly said below, with reference to this question, that the use of the words “ sell and dispose,” in a prior part of the will, indicated the omission to be of the word “ sell ” in the clause recited, and that it might be supplied; or the word “and” might be rejected as surplusage, and thus the evident intention of the testator made plain. ’ This view is regarded as a correct disposition of the question discussed.
The learned justice, however, upon the second question, came to the conclusion, and after a very careful examination, that the legacies were not chargeable upon the real estate or .its proceeds. In this, however, it is thought he erred.
A reference to the will itself discloses the first item of it to 'be as follows: “ As to my worldly estate and all the property, real, per«onal and mixed, of which T shall die seized and possessed, and to which • I shall and may be entitled' at the time of my decease, I devise, bequeath and dispose of in the following manner.” And then follows the gift of several legacies of money; and on reference. to the codicil it is found that, in the last item, the testator provided as follows:
“ In every other respect than the foregoing codicil I declare my said last will and testament of the Tijfh Sept., 1865, to be unchanged.” And in no respect whatever did the codicil interfere with the item quoted from the will itself.
Upon a question of construction the most important element is the intention of the testator; and it seems to be quite evident, from the language of the item recited, that the testator, for the purpose of carrying out the provisions of his will, appropriated the whole of his property ; an intention manifested after marshalling it all together by the use of the words, “ 1 devise, bequeath and dis*338pose of in the following manner,” and that manner involved the payment of the legacies which he gave. The item blended all his worldly estate, real, personal and mixed, thus uniting his whole estate for the general purposes of his will, and, in the disposition of it, destroying all distinctions as to its legal character in its application, although, as is suggested by Judge Folger, in Bevan v. Cooper (72 N. Y., 317), the primary fund for the payment of legacies is the personal estate; and although this is undoubtedly the general rule, nevertheless, if an intention to the contrary can be gathered from the terms of the will, the intention must prevail.
It does not appear from anything in this will, expressly or impliedly, that the testator meant that the legacies should bo paid out of his personal estate alone. It does appear, however, to have been his intention, from the blending of his estate in the manner stated, to appropriate it to the objects expressed in his will, and therefore to the discharge of all the burdens which he created by the terms of that instrument. .
Having arrived at this conclusion, it may be unnecessary to-devote any more attention to the question stated. But, nevertheless, the result arrived at can be strengthened by the application of the rule, well settled, that when the entire estate, real and personal, is blended in one devise, or where a power of sale is given to the executors to convert real and personal estate into cash, it becomes chargeable as personalty for both debts and legacies (Tracy v. Tracy, 15 Barb., 503, and cases cited; Taylor v. Dodd, 58 N. Y., 335.) Such a blending was made as already suggested, and a power of sale given to the executor, thus bringing the provisions of the will within the principle stated.
We do not regard the case of Lupton v. Lupton (2 Johns. Ch., 614) as in conflict with any of the views expressed. So far as it applies to this case, it is in harmony with them.
For these reasons, we think the judgment should be reversed,' wherein it decrees that the legacies were not chargeable upon the real estate, and judgment given for the appellants, making the legacies a charge upon the - real estate, or payable out of the proceeds thereof, with costs to the appellants.
*339Davis, P. J., and Barrett, J., concurred.Judgment reversed, and judgment ordered as directed in opinion.