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leaving her surviving no children of her body or descendants of any such. After certain general legacies, amounting to $40,500, not specifically charged upon her real estate, to her sister, nieces and nephews and to relatives of her deceased husband, all the rest, residue and remainder of her estate, both real and personal, was devised and bequeathed to "Florence A. Coombs, who grew up as a child in my family and lived with me for many years, the same to have and to hold forever," and the executor was given full power of sale over the real estate. When the will was executed, about fifteen months before the death of testatrix, exclusive of 20,000 shares of the United States Tin Company of the par value of one dollar per share, and certain mining stock which had not been transferred from her husband's name, the personal estate of testatrix amounted to about $25,000. Without testimony as to the intention of testatrix it was stipulated by all parties in interest that both at the date of the will and also at the date of the death of testatrix, the stock in both corporations had no value. The residuary legatee was a second cousin of testatrix, and from the time she was two years old stood in the mutually acknowledged relationship of parent and child to both the testatrix and her husband, was educated by them at private schools and at her marriage at the home of decedent was given a large wedding. Certain of the other legatees, relatives of decedent's husband, also lived with her for a while but not in the relationship of parent and child. Held, that the burden of proof resting upon the general legatees to show that it was the intent of testatrix to charge their legacies upon her real estate, had not been sustained, and it is accordingly decreed that said legacies are not a charge upon the real estate left by decedent.

APPLICATION for the construction of a will.

C. Bertram Plante (George H. Taylor, Jr., of counsel), for Florence A. Coombs.

Thomas J. Towers, for executor.

Frederick F. Close, special guardian.

SLATER, S. This is an application for the construction of the will of Charity C. Mould, deceased, made

Misc.] Surrogate's Court, Westchester County, November, 1921.

by the executor. The question involved is whether the legacies given by the said will are a charge on the real estate of which the testatrix died seized. Charity C. Mould died May 22, 1920, aged about seventy-six years, without leaving children of her body, or their descendants. The will was executed February 5, 1919. She was the widow of Horatio D. Mould, who died May 2, 1899. It appears that most of her property was acquired under the will of her late husband. The will in question first directs the payment of all the debts, funeral expenses, and expense of administration. It then gives general legacies to a sister, nieces and nephews of decedent, and to relatives of her late husband, amounting in all to about $40,500. They are not specifically charged upon the real estate. By the 9th clause, the following gift is made in these words: "All the rest, residue and remainder of my estate, both real and personal, of whatsoever nature and kind, including my lot in Greenwood Cemetery, I give, devise and bequeathe to Florence A. Coombs who grew up as a child in my family and lived with me for many years, the same to have and to hold forever."

The 10th clause gives to the executor full power and authority to grant and sell and convey all, or any part of the real estate, with full power to execute and Ideliver all deeds.

The entire estate, real and personal, consists of approximately $40,000 in live assets, divided as follows: personal estate, about $20,000, consisting of money in bank, stocks, bonds, mortgages and jewelry; and equity in real estate, about $20,000 not specifically devised. She had among her securities at the date of the will 20,000 shares of the stock of the United States Tin Company of the par value of one dollar per share, and 200 shares of the stock of the Spenazuna Gold Mining Company. These stocks were found in the

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decedent's strong box, with the jewelry. The mining stock, however, had not been transferred from the husband's name. A formal indorsement is not necessary. Orton v. Tannebaum, 194 App. Div. 214, 223.

It appears that at the date of the will the personal estate, exclusive of the above-mentioned shares of stock, amounted to about $25,000. It has been stipulated by the parties hereto that there was at the date of the will, and also at date of death, no value to the shares of stock of the United States Tin Company and the mining company. But no one can stipulate the decedent's intention; nor as to what the decedent may have thought these shares of stock added to her estate. No testimony was adduced upon this point. An intention to charge real estate will not be inferred, if decedent may have been mistaken in her judgment as to the value of her property, or in reasonable expectancy of increasing her personal estate before her death. Carley v. Harper, 219 N. Y. 295.

Florence A. Coombs, the residuary legatee, was a second cousin of the decedent and stood in the mutually acknowledged relationship of parent and child to both the decedent and her husband from the time Mrs. Coombs was two years of age. It is also true that certain legatees, relatives of decedent's husband, lived with her for a while, but not in the relationship of parent and child.

It is well settled that the primary fund for the payment of general legacies is the personal estate, unless express direction is otherwise found in the will, or there be clear intention to the contrary to be gathered from the provisions of the will which may be assisted by extraneous evidence. McCorn v. McCorn, 100 N. Y. 511; Lediger v. Canfield, 78 App. Div. 596; McGoldrick v. Bodkin, 140 id. 196.

The whole question is one of intent, to be searched

Misc.] Surrogate's Court, Westchester County, November, 1921.

for in the light of adjudged cases, but to be determined after all from the language of the will and the circumstances surrounding the testator. Wiltsie v. Shaw, 100 N. Y. 191; Carley v. Harper, 219 id. 295.

If the intention is not expressed in the will, then it must be clearly and satisfactorily inferred. Lupton v. Lupton, 2 Johns. Ch. 614; Lediger v. Canfield, supra. As is the case with all questions of intention, no precedents are absolutely controlling in other cases, for all differ.

The testimony in the instant case was to the effect that the testatrix was childless, that in 1880 Florence A. Coombs, a second cousin, a blood relative, an orphan, the residuary legatee and devisee, was taken into the family at the age of about two years. She grew up as a child of the testatrix and her husband, and was subject to their control. In return the decedent received filial attention and service. The will referred to her in this manner: "Florence A. Coombs who grew up as a child in my family and lived with me for many years." Mr. and Mrs. Mould maintained and educated her at private schools. She was introduced as the daughter, was married at the home of the decedent, and was given a large wedding. Testatrix treated her as her child, and was responsible for her support. The relationship of affection continued to the time of her death. By reason of such facts the legatee sustained to the decedent the relation of a child. Matter of Beach, 154 N. Y. 242; Matter of Davis, 184 id. 299; Matter of Lloyd, 166 App. Div. 1; Matter of Downey, 182 N. Y. Supp. 223; Matter of Chambers, 112 Misc. Rep. 551; Matter of Wheeler, 1 id. 450.

An intention to charge the land will not be inferred from a disparity between the amount of the estate and the legacies, if the testatrix might have been uncon

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scious of its existence, or mistaken in her judgment. Briggs v. Carroll, 117 N. Y. 288, 292.

The testimony did not disclose that the testatrix knew, or comprehended, or believed that her personal estate was insufficient to pay the legacies. On this point, the court has failed to be illuminated. Therefore, we cannot now conjecture.

The mere fact of giving legacies only imputes a general purpose that legacies given shall be paid and amounts to little, when the residue of the estate given is a substantial vital gift to persons by nature the objects of the bounty of the testatrix.

The residuary clause gives the balance of the estate "both real and personal" to Mrs. Coombs. If the testatrix knew, or realized, or comprehended that her personal estate was, or would be insufficient to pay the general legacies, what did she mean when she gave in the residuary clause," the rest, residue and remainder" of her "personal estate?" If she understood that there would be no personal estate to pass to Mrs. Coombs, and intended the real estate to be sold to assist in the payment of the general legacies, she must be charged with executing a mocking and a meaningless will to this extent, which upon its face gave something to one near and dear to her. Is it not apparent that she thought, and in fact intended, that after the legacies were paid she would have personal estate left, this to pass under the residuary clause to the child? The very words of gift of the "personal" estate in the residuary clause negative any intention that may be claimed for her that she meant to have the real estate sold to pay the general legacies. It fortifies and makes her intention clear that she really intended Mrs. Coombs to have the real estate, plus the personal estate that she thought would be left after the payment of the general legacies.