In re the Estate of Klatte

Fowler, S.

The special guardian’s objections are sustained as follows: The legacies contained in the fourth and fifth clauses of the will are specific legacies. (Estate of Beckett, 15 N. Y. St. Repr. 716.) In Roper & White on Legacies (Vol. 1, p. 199) it is said: “ Following then the same principle;, viz., the intention of testators, if a testator direct his' freehold or leasehold estates to be sold, and dispose of the proceeds in such a form as to evince an intention to bequeath them specifically, the testamentary dispositions will be specific, the money is sufficiently identified and severed from his other property; and since he has sufficiently marked his intent to distribute the identical proceeds, the bequests are accompanied with all the requisites of specific legacies.

“ An instance of this kind occurred in Page v. Leapingwell (18 Ves. 463) ; see also Newbold v. Roadnight (1 Rus. & M. 677). In that case A. devised to B. real estates in trust to sell, but not for a less sum than £10,000; and he directed B., out of the monies arising from the sale, in the first place, to lay out *350 the sum of £3,000 in purchasing a benefice for his godson, C. He also directed B. by and out of the monies arising from such sale as aforesaid, to lay out the sum of £4,000 in the purchase of lands in the county of Essex, as his nephew D. should choose; and he further directed B., by and out of the monies arising from such sale as aforesaid, to place the sum of £500 at interest in the funds in his own name, and to pay the dividends to E. for life, and afterwards to divide the principal as therein mentioned. The testator then gave three legacies of £100 each, and directed B. after payment of the above legacies, to invest in the public funds all the overplus monies arising from the sale of his said real estates, and to pay the dividends to F. and G. equally. The testator then proceeded to dispose of other parts of his property, and concluded with a general residuary bequest. The proceeds from the sale of the lands were less than £7,000. The questions were, whether the legacies were specific? and if so, whether F. and G. were entitled to any part of the fund with the other legatees, since what was given to them appeared to be residuary; and Sir A¥. Grant, M. R., was of opinion that the legacies were specific, upon the principle that the testator assumed he had at least £10,000 proceeds from the sale to dispose of, and that he portioned them out among the legatees. His Honor also considered the testator to mean that F. and G. should take at least what should remain after payment of the specific legacies, viz., £2,200' (the testator assuming that the proceeds would amount to £10,000, but if to more, then intending them the excess). The determination was, that if the lands had produced £10,000 the shares of F. and G. in it would have been £2,220; F. and G. were therefore entitled to so much of that sum as remained, after abating ratably with the other specific legatees.”

In Williams on Executors (Vol. 1, p. 921) it is said: “ Again, where the bequest Was ‘ to my granddaughter the sum of £40, being part of a debt due to me for rent from A, she allowing what charges shall be expended in getting the same: *351 Item, I bequeath to my grandsons C. and D., the rest and residue •of what is due to me from the said A., which is about £40 more, in equal shares, and they allowing charges as aforesaid; ’ these were held specific legacies. (Ford v. Fleming, 1 Eq. Cas. Abr. 302, pl. 3.)”

The legacy in the sixth clause is a general legacy. (Tifft v. Porter, 8 N. Y. 516 ; Matter of Werle, 91 Misc. Rep. 402 .) The assets are applicable to the payment of debts and administration expenses in the following order: First, the unbequeathed personalty as to which the testator died intestate; second, the general legacy contained in the sixth clause of the will, and last of all the specific legacies. The expenditure for the burial plot will be approved and the special guardian’s objection to that item overruled. Let a decree be submitted on notice adjusting the account accordingly and tax costs.

Decreed accordingly.