Surrogate's Court.-In the matter of the accounting of the will of R. G. Williams.

rate estate, I cannot see why she could not make this bond to be valid and binding as against her estate; and though it is true that if the holder of the bond had sued the executors of the testator in a court of law, a judgment would have been paid out of the personal assets of the deceased; yet, as between the legatees, under the will of the deceased and the executrix, they could have compelled her to pay the bond so secured by her mortgage out of the real estate pledged for its security.

I have not been able, after listening to the able arguments of counsel, and a close examination of the authorities cited, to divest myself of the strong impression made upon my mind that the transaction in reference to this real estate amounted to this: That the testator gave to his wife the title subject to the encumbrance of the mortgage upon it, given for a part of the purchase money, and however clear may have been his intention to pay off this bond during his lifetime, so as to give to his wife the property free from encumbrances, yet, having failed to accomplish his purpose, the gift was incomplete at his death, and must be so considered and treated on this accounting, and the executors cannot be called upon to complete the gift. Williams on Executors, last Ed., p. 1505, and cases in note. L. Cotteen vs. Murray, 1 Maddock 176.

Viewed in this light, it seems to me that instead of the wife or her property being surety to the husband, the husband, by uniting in the bond, to pay a portion of the purchase money which was charged as an incumbrance on the estate of the wife became the surety to the wife in aid of her estate, and therefore the authorities of Niemsewich vs. Gahns, 3 Paige 614; Warner vs. Price, 3 Wen. 397, and others. cited by counsel for the executrix on this point, are not applicable to this case.

The next question is, whether the bequests in the will of the testator to invest $15,000, and pay the interest to his wife semi-annually during her life, and to pay to his adopted daughter, Ann Eliza Denison Williams, the interest of $5,000 during her life, must abate with the general legacies given by the will, as it appears that there are not assets sufficient to pay the general legacies in full and to make these investments.

It is said by counsel for the widow and her adopted child, that these bequests are by law annuities, and are not therefore subject to abatement with the general legacies. In the view which I take of this matter, it is not decisive of the case whether we term these provisions for the widow and child annuities or legacies.

They answer the most approved definition of annuities in this, that they are grants of certain sums of money to be paid by the representatives of the grantor, at the expiration of fixed consecutive periods for life, Lomley's Law of Annuities, Edition of 1833, page 1. They are also legacies, because they are gifts by a testator in a will wherein an executor is appointed, to be paid by the executors, 2 Williams on Ex., last edition, p. 905, and the principal to be invested to raise

Surrogate's Court.—In the matter of the accounting of the will of R. G. Williams.

the semi-annual payments of interest, is to be taken from the body of the estate.

Perhaps the best definition to be given to these bequests is that they are legacies for life, with remainder over, Gibson vs. Bott, 7 Ves. 96, 2 Wills on Ex., last Ed., p. 1193.

The will provides that the executors are to sell and dispose of all the estate of the deceased, both real and personal; to convert the same into money, and out of the proceeds to set apart these several sums with others for investment and to pay a large number of general legacies. The whole estate is to be converted into money, and to make one general fund out of which the sums are to be set apart, from which this income is to be raised, and the general legacies are to be paid. The general legacies and the investments being charged alike upon the general fund, I do not see how we are to avoid the well established rule that these annuities or legacies for life are general legacies, 2 Wills on Ex., last Ed., p. 1172, Roper on Legacies, Ed. of 1848, 1 vol., p. 203.

It was insisted upon the argument by counsel for the executrix that the authorities cited in Williams on Executors, at page 1172, to sustain the proposition that an annuity charged on the personal estate is a general legacy, do not sustain the proposition. I have examined them somewhat carefully, and can discover no cause for such a charge. But, if I had come to the conclusion that they did not sustain the proposition, I should have distrusted my own judgment, after so repeated recognitions of the doctrine in the best elementary writers upon the subject and in the authorities from the English courts cited in the note to Williams on Executors. As to the argument that those bequests are specific legacies because they are charged on real estates, in the case of Creed vs. Creed, 11 Clarke and Finnelly, 508, in the House of Lords, Lord Cottenham giving the judgment of the house, says, at page 510, "these claims are to pecuniary legacies, charged indeed upon the land, upon a deficiency of the personalty, but such a charge cannot alter the character of the legacies or make them specific." It is claimed, however, that though these are general legacies, they do not abate for the reason, that as to the widow the provision to her is in lieu of dower, and as to the adopted daughter of the deceased, it is for her support and maintenance. To entitle the widow to the benefit of the rule it must appear expressly or by fair inference from the will itself that the legacy is given in lieu of dower. It is not contended that there is any such expression in the will, but it is insisted that as the testator directs his estate both real and personal to be converted into money for the purpose of making the investments for the widow and adopted daughter, and as the whole title to the real estate cannot be given without a release of dower by the widow, therefore the testator intended this bequest to the widow to be in lieu of dower. I do not see how any such intention is to be implied from the language of the will or from the character of the bequests. It has been decided (see Brights, husband and wife, edition of 1850, 1 vol., p.

Surrogate's Court.—In the matter of the accounting of the will of R. G. Williams.

558 and 559, and the authorities there cited) that no implication would arise from the circumstances that the estate was devised to the wife and other persons as trustees, for sale, and the proceeds directed to form parts of the testator's personal estate, and benefits given to the widow out of the funds so constituted sufficiently clear to oblige the widow to elect between her testamentary provision and dower in the lands, and the rule is the same in regard to the election of the provision in lieu of dower as in reference to the question of non abatement of the legacy of the widow. There must be a clear intention that the provision is in lieu of dower to compel the election or to prevent the abatement of the general legacy. In the absence of any declaration or intention appearing in the will of the testator, or of any implications arising therefrom, that the provision for the widow was in lieu of dower, and of any expression or implication that he intended to give a priority in the payment to the widow or adopted child of their several legacies, I do not see how it is possible to avoid the application of the rule that these bequests, being general legacies, must abate with the other legacies in the will. Williams on Ex., last Ed., 2 vol., p. 1171. Roper on Legacies, Ed. of 1848, 1 vol., p. 420 to 425.

In regard to the question of interest and the bequests to the widow and adopted daughter of the deceased, the Statute provides, (2 vol. R. Statutes, page 90, sec. 45,) that after the expiration of one year from the granting of letters testamentary or of administration, the executors or administrators shall discharge the specific legacies bequeathed by any will, and pay the general legacies, if there be assets; and if there be not sufficient assets, then an abatement of the general legacies shall be made in equal proportions.

Nothing is said in the Statute about interest. The well-established rule of law on this subject is, that when no time is named, and in the absence of any contrary intention to be collected from the will, as the legacy itself is payable at the end of the year from the testator's death; if the executor do not pay it then, interest becomes due to the legatee from that period.-2 Roper on Legacies, last ed., 2 vol., p. 1251; 2 Williams on Ex., last ed., p. 1222.

If, then, these bequests are general legacies, or legacies for life, and, of consequence, not payable until the end of the year, no interest can be charged on them for the first year after the death of the testator, unless they are excepted from the above general rule. An exception is made where the testator is the parent, or is in loco parentis of the legatee; that interest shall be allowed as a maintenance from the time of the death of the testator, if there is no other provision for that purpose.-2 Williams on Ex., last ed., p. 1226. There is no other provision for the maintenance of Ann Eliza Denison Williams, the adopted daughter of the testator, except the payment to her during her natural life of the interest and income of $5,000. Under the above rule, therefore, she would be entitled to interest on the proportionate share of her legacy for life from the death of the testator. But the rule in reference to the wife of the testator seems to be, that though she have

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Surrogate's Court.—In the matter of the accounting of the will of R. G. Williams.

no provision in the will for her support, unless the legacy is given to her in lieu of dower, she is not entitled to interest until one year after the death of the testator.-2 Roper on Legacies, last ed., p. 1272. In this case, however, there is a provision in the will giving to the widow a specific legacy, and not an expression or intimation that the legacy for life is in lieu of dower; and besides, it appears, that she is entitled to a dower interest in lands, specifically devised in the will, as well as in other land devised to the executors, so that I do not see how, under any view of this question, she can be entitled to interest on her legacy for life, until after one year from the death of the testator.

In the case of Craig vs. Craig, 3 Barb. Ch. R., the interest on the annuity to the widow is saved because it is in lieu of dower, and the interest on the annuity to the lunatic son is saved by the rule that it is for the support and maintenance of the son of the deceased. (See Van Bramer vs. Hoffman, 2 John. C. Rep., 200.

I have devoted much time and study to this case with a continued hope that I should find some ground on which to relieve the widow of the testator from the position in law which the failure of assets to pay the legacies under the will of her deceased husband has placed her. There can be little doubt that had the attention of the testator been called to the matter when he executed the will whether he intended that the provision for his wife and adopted child should be preferred to the other general legacies, he would have said unhesitatingly that such was his desire. But I am not at liberty" to speculate upon what the testator might mean, as to preferring a legacy on account of the object or purpose to which it is given." (1 Roper on Legacies, last ed., p. 421 to 425.) But I am to determine this case from the intention as expressed in the will. And applying well-settled rules of law to that instrument, I can come to no other conclusions than those already stated by me.

The result of my examination of the questions submitted to me, therefore is, 1st, That the executrix is not to be allowed a credit for the payment of the bond of the deceased to Hosea Webster; 2d, that the legacies for life to the widow and adopted daughter of the deceased, are subject to abatement with the other general legacies in the will of the testator; 3d, That interest is to be allowed upon the amount to be set apart for the adopted daughter from the death of the testator; and 4th, That interest is to be allowed the widow on the amount to be invested for her benefit after one year from the date of the letters testamentary.

Common Pleas.-George Spalding & ors. agst. Solomon King.

Common Pleas.

[May General Term, 1854.]

Before INGRAHAM, First Judge, and DALY and WOODRUFF, Judges.

GEORGE SPALDING, and others, against SOLOMON KING, impleaded with WILLIAM MULOCH.

MECHANICS' LIEN LAW-APPEAL FROM JUDGMENT OF MARINE COURTEVIDENCE.

The claimant under the lien law, before he can maintain an action against the owner, must show that payment was due under the contract with the owner.

When the defendants offered to show that they paid $350 on the contract before the lien was put on, and that after such payment, which was more than was due by the terms of the contract, the contractor abandoned the contract: held that it was a complete defence, and that the Justice improperly excluded it.

WOODRUFF, J.-Quere.-How far the mere fact that the money earned by the contractor has not become payable, will operate to defeat the proceedings, where the owner himself commences the proceedings by requiring the claimant to foreclose.

This was an appeal from the judgment of the Marine Court.

The suit was by material men for materials supplied to the defendant to the amount of $194.

The defence was that the contract had not been performed. The cause was tried by Judge Thompson and a jury.

On the trial of the cause, the defendants' counsel proposed to prove that the contractor had been paid $350, being more than was due to him, and also that the contractor abandoned the contract, and refused to go on with the work before the lien was put on, and after he had been paid $350. The justice refused to permit this evidence to be given, and a verdict was rendered for the amount claimed. There were other points in the case which it is not material to notice.

Samuel Owen, for the defendants, submitted that the appellant was entitled to show that he had paid the contractor $350, being more than was due by the liens of the contract before the lien was put on, because, if nothing was due by the owner to the contractor, the respondents could not sustain their suit.-Sullivan, resp., agst. Brewster and Gale, appel's., 8 How. P. C. 207. That the appellant had also a right to prove that the contractor abandoned the contract before the lien was put on, and after he had received the $350 for the work then done. Waterman and Palmer, contra.

DALY, J.-We have heretofore held (Sullivan v. Brewster and Gale, 8 How. P. C. 207) that the claimant under the lien law must show that a payment has become due upon the contract with the owner before he can maintain an action against the owner. The claimant gave