New-York tribune., 1901-07-14
IN JUSTICE TO HEIRS.
TESTATORS SHOULD PROVIDE EOp p,v
MENTS OF LEGACIES OUT OF
PERSONALITY

The Special Term decision of Judge Russell in the
case OF Leonora H. Wellbrook against Henry d.
Often and others. which was handed down last
TUESDAY. is OF interest both to laymen and lawyers:
10 the latter for the reason that IL contains An
epitome OF such cases touch the subject matter
or the controversy; the former for the reason
mat men OF affairs thereby instructed In the
necessity of explicitly charging in their Wills the
payment of legacies upon their real estate devised
by them. in the event that their personal property
proves insufficient
Unless there Is such a provision In a will the law
prohibits the payment of the legacies out of the
proceeds of the sale of the estate even though
the personally proves inadequate the total
or the legacies) unless. Judge Russell points out
o. The intention of the testator to do. can be
fairly gathered from all the provisions OF the WILL
In aid OF the terms OF the will CfIoyt agt Hoyt
S n. Y. Reports. 142)
of the execution of his will may be given in evil
denee so that the court may see the facts he
saw them and thus arrive his intention The
matter to be determined in the construction OF a
it's execution And when that Intention is aseer-
any law.
In the under discussion the plaintiff and a
brother of the testator We're legaees the amount
OF s2S Oo0. AS already stated. the law prohibited
the payment of any portion of such sum out of any
part Of the estate except the personality there
being no express provision In the viii charging the
real estate with the payment thereof. and the per-
sonalty amounted to only $1,000. which was paid 10
Mrs. Weilbrook and testator's brother, leaving
100 due. and II for the purpose OF charging
the testator's real estate-whlch ample-with
the payment OF this deficiency that the action was
brought.
Judge Russell says:
The extrinsc application of the facts which dis
closes the failure of the personally to provide suf
hcient means for the payment of the legaces. also
dtscloses strong confirmatory presumptions thai
the testator meant TO provide for full payment OF
the legacies. The testator In debating his will
necessarily acted upon his own consciousness and
perception OF the situation 1t existed. He was
old man. retired from business. and invalid
with Mrs Huiseberg had proved chdless. and
neither had any descendants. He had taken the
plaintiff when but few months old and reared
her he would daughter both he and hts wife
giving her the appellation of adopted daughter
She stood to both OF them a child. and had nc
other home than theirs until she was married
Apart from his wife there close tC
him IN the tender ties OF daily companionship and
deliberately assumed fathership He took steps
TO legally adopt the plaintiff. doubtless knowing
| that he meant to provide for her by testament
! There have been interruption in his
| loving regard for the plaintiff.
In conclusion Justice Russell directs Judgment &c
be entered I'm of the testator's adopted daug
ter and his brother. charging the lands OF which
the testator died seized with the payment OF the
$4,000 balance due and unpaid upon the iesacies
basing his decision upon the following authorities
Kalbffesh agt. Kalbfeish. 81 n. Y 35+: Bevan agt
| Cooper. ~ y. Y, 31T; Hoyt agt HOyt. So n. Y.
lA2 Scott agt Stebbins. 81. n. V, 6o5; McCorn agt
| McCorn 100 n. Y. 5i1: Briggs agt. Carroll. III
| N Y. 2ss and Morris agt. Sitkly. 1873 n. ", +5o