#### Samuel A. Richardson and Adelaide Weeks, as Executors of and Trustees under the Last Will and Testament of Asa Bond Richardson, Deceased, Plaintiffs, *v.*Samuel A. Richardson and Others, Defendants.

Second Department,

June 2, 1911.

Will — bequests in excess of personal estate — -wien egacies charge upon realty — compensation of. executors — abatement.

Where a testator who drew his own will containing bequests aggregating $12,000 knew at the time that his entire personal estate was less than $1,000 and was insufficient to pay even the compensation which he gave to his executors, it is evident that he intended the legacies tobe a charge upon his real and personal property taken together even though the will gave no express power of sale to the executors. Hence, where the executors sold the realty, the legacies are a charge upon the proceeds.

Where the will provided that the executors were to have $150 each for services to be rendered in connection with the library of the defendant and were to “receive Five hundred dollars each to be executor and trix of this my last will and testament,” the sum given to the executors was not a bequest but a provision for then- compensation; and hence the sums should be paid in full and do not abate ratably with the legacies.

Submission of a controversy upon an agreed statement- of facts, pursuant to section 1279 of the Code of • Civil Procedure.

*David D. Ackerman,*for the plaintiffs.'

*541
      *Omri F. Hibbard,*for the defendant Church Charity Foundation of Long Island. .

. *Roger Hinds,*for the defendant T. Alfred Hayden.

Rich, J.:

This controversy is submitted under the provisions of article 2 of title 2 of chapter 11 of the Code of Civil Procedure, sections 1279-1281 inclusive.

Asa Bond Richardson died testate in the borough of Brooklyn on May 7, 1908, leaving no widow or lineal descendants, and the legatees named in his will are relatives of himself and his deceased wife, with the exception of the First Baptist Church of Jefferson, Maine, and the Church Charity Foundation of Long Island. The plaintiffs, a nephew and niece of the decedent, were named in his will as executor and executrix; they qualified and entered upon the discharge of their duties, have reduced the estate to cash, paid the funeral and administration expenses and all debts of their testator, and are now ready, to render their account. It is stipulated that “They have performed properly and carefully all the duties required of them by 'the will,” which provided their compensation as follows: “ *Eleventh.*My library, I leave with S. A. Richardson and Adelaide Weeks to be held by them for a Free Library for the Town of Jefferson, Maine, or the North Village in said town. If neither the town nor village makes a home for the books within two years after my death, then let the books be sold and proceeds put in the residuary. My nephew and niece arep to have One hundred and fifty dollars each for this work. Likewise, I make, constitute and appoint Samuel A. Richardson of Jefferson, Maine, and Adelaide Weeks, to serve without bonds and to receive Five. hundred dollars each to be executor and trix of this my last.will and testament hereby revoking all former wills by me made.”

The will did not expressly give a power of sale to the executors. An agreement was entered into, however, by all of the parties, under which they conveyed by deed to the plaintiff Richardson, as an individual, said' real property, he to sell the same, pay the mortgage liens thereon and the expenses incurred, and hold the balance as real estate for the parties according to *542their respective rights. This agreement has been performed and there is-in Richardson’s hands a net balance of $2,793, the avails of the sales of real estate. There is also in the hands of the executors a balance of $1,969.10 for distribution after the necessary expenses of administration, including the compensation to the executors, has. been paid.- The testator gave legacies totaling $10,700 to his nearest relatives and several religious charity organizations, and gave to his executors the sum of $1,300 for their services. The -will was drawn by the testator, and shows him to have been an intelligent and well-educated man. His account book, kept .in his own handwriting, shows that at the time the will was executed the total net value of his personal property was $905.08, while his cash bequests aggregated $12,000. His entire gross personal assets were of a value of only $4,905.08. Including his real property at the valuation he placed upon it ($15,000) his total estate, real and personal, at the time the will was executed was $15,905.08; his realty sold for $12,000, and the entire .estate exceeded the cash bequests by $905.08.

At the time of his death the net value of his personal estate was $1,683.41, and his real estate $4,500, aggregating $6,183.417⁄8 as against cash bequests of $12,000 and the costs and expenses of administration. The funeral and administration expenses amounted , to $841.05, which added to the testamentary compensation of the executors makes a total of $2,141.05, leaving a shortage in the personal estate as it existed when the will was executed of $1,235.97, and not a dollar to pay the $10,700 legacies unless recourse was had to the realty. The testator knew when he executed his will that his personal property was insufficient to pay even the amount he had determined his executors should receive for their services, and it is not to be presumed that he intended to prefer the corporations to the exclusion of his own kindred, and it is noticeable that he disposed. of .both his real and personal property as a whole and without making any distinction between real and ■ personal property. I think that it was the intent of the testator that his real and personal estate together were to furnish the fund out of which the legacies were to be paid. The deficiency existed at the time the will was executed; it is so large and so *543obvious as to preclude any possible inference that the testator did not know and realize it, and it must be held that the legacies are a charge upon the real property of the decedent. *(McCorn*v. *McCorn,*100 N. Y. 511; *Briggs*v. *Carroll,*117 id. 288; *Hogan*v. *Kavanaugh,*138 id. 417; *McManus*v. McManus. 119 id. 338; *Irwin*v. *Teller,*188 id. 25.)

The first question submitted, “Are the legacies in the will a charge upon the fund of $2,193, as representing the real estate ? ” is answered in the affirmative.

The remaining contention is as to whether the executors’ compensation shall be paid in full or ábate ratably with the legacies. Section 2130 of the Code of Civil Procedure recognizes the right of a testator to provide a specific compensation by will to his executor. In *Matter of Brigg*(39 App. Div. 485) it was held under the provisions of a will that appointed guardians of the. testator’s infant children and directed that each should receive for their services $500, that such provision was not a legacy but a testamentary fixing of their compensation, and this is the rule, I think, that should govern the determination of the question under consideration. In each legacy the testator uses the words “ I give.” He does not use this term or the word “bequeath” in directing compensation for his executors. He does not characterize it as a gift but as compensation; they “are to have One hundred and fifty dollars each for this work 3⁄8 3⁄8 3⁄8 and to receive Five hundred dollars 'each to be executor and trix.” It is clear that the testator intended that his executors should administer his entire estate, real as well as personal, for it is incredible that he should have provided a compensation of $1,300 for their services in distributing his personal estate amounting to only $905.08. He believed that they had the power to sell the realty and apply its avails to the payment of the legacies, and for such full and complete service he fixed and apportioned the compensation, viz., $150 each for their services connected with his library, and $500 each for all other services. At testator’s death the property became vacant;, claims were made by the general legatees that their legacies were charges upon the realty and by the residuary legatees that they were not; the real estate was unmarketable under such conditions, and it became neces*544sary for all parties to unite in carrying out the plan that the testator evidently had in mind by 'uniting in a conveyance to one of the executors that he might sell and give a valid title. The mortgages thereon were paid, the title cleared, the property rented until opportunity for sale offered and then sold.There was $7,500 mortgage indebtedness, in addition to which Mr. Richardson in executing his trust disbursed $2,216.55. There is no objection made that .the compensation of $500 to each executor is unreasonable or unearned, and it is stipulated that, their services have been fully and faithfully performed. As was said in *Matter of Tilden*(44 Hun, 441, 444), in which the .Surrogate’s Court had held that a similar compensation .provided in a will in excess of that allowed by law was a legacy: “The provisions in the will were intended to be as compensation for services rendered, to be in no respect a gift, but an authority to charge for their services a certain sum.” The compensation provided by the will is not a legacy, and does not abate with the legacies, but is compensation carefully determined by the testator, and directed to be paid for the services to be rendered, and is, therefore, to be paid in full:

Judgment is directed for the plaintiffs in accordance with this opinion, with costs ■ to the plaintiffs payable out of the estate.

■ Jenks, P. J., Thomas, Carr and - Woodward, JJ., concurred.

Judgment directed for the plaintiffs in accordance with opinion, with costs to the plaintiffs payable out of the estate. •