App. Div.]

First Department, December, 1911.

of the language used in the other provisions of the will. (Davis v. Crandall, 101 N. Y. 311.) When the language used in this bequest is thus read and construed, it seems to me that the testator intended all of his debts should be paid out of the proceeds of his other property, real and personal, before she could be deprived of her bequest or any part of it. If nothing were received from the insurance policies, then her legacy failed (Tichenor v. Tichenor, 41 N. J. Eq. 39), and she would not have received anything, because the bequest is limited to the amount collected from such policies. The language is "all amounts of insurance upon my life that are payable at my death shall be for the sole benefit of my wife, and accordingly I give and bequeath to her absolutely all the monies due and to become due and all that may be collected from every policy of insurance now outstanding or that may hereafter be issued upon my life." All of the policies in question were issued and outstanding at the time the will was made. Observe the words for her "sole benefit," negativing the idea that the same was for the benefit of any one else, or could be paid to any one but her. Undoubtedly, if the other property were not sufficient to pay creditors, then the same could be taken by them, because a testator is required to pay his debts before he can give anything away. Here, no question is presented as to creditors because the other property is sufficient to pay them in full, the contest being solely between the widow on the one hand and general legatees on the other.

There are numerous authorities where it has been held that a legacy was specific in which the intent of the testator that it should be so was certainly no clearer than in the present case. Thus, a bequest of the balance or surplus due on a policy of life insurance after the satisfaction of a debt to secure which it had been assigned (Leonard v. Harney, 173 N. Y. 352); a bequest to pay a certain sum out of a bank deposit in the name of a daughter (Crawford v. McCarthy, 159 id. 514); a bequest of "all my right, interest and property in thirty shares which I own in the Bank of the United States" (Walton v. Walton, 7 Johns. Ch. 258); a bequest of "the balance of my stock as per my stock book" (Trustees, etc., v. Tufts, 151 Mass. 76); a bequest of "whatever sum might be on deposit in Provident Savings

First Department, December, 1911.

[Vol. 147. Institution" (Towle v. Swasey, 106 id. 100); a bequest of "my books and papers of every description" (Perkins v. Mathes, 49 N. H. 107); a bequest of all the property to which the testatrix might be entitled from the estate of her deceased husband (Moore v. Moore, 29 Beav. 496), and a bequest of "all the property I possess in the public funds" (Cochran v. Cochran, 14 Sim. 248). Here the bequest is "absolutely all the monies due and to become due and all that may be collected from every policy of insurance now outstanding or that may hereafter be issued upon my life."

The amount thus received was to be for her sole benefit. She was to have this irrespective of the disposition made of the balance of his property. This was just as specific as the bequest to her of his horses, carriages, etc.

Second. After the gift of the insurance moneys, the horses, carriages, etc., the testator gave, devised and bequeathed to his executors, or such of them as might qualify, all the rest, residue and remainder of his estate, both real and personal, in trust "to invest the same and keep it invested in such securities as they may approve" and pay the income derived therefrom to his wife during her life, and upon her death to pay over and transfer the same and all accumulations thereon to seventeen persons, including collateral relatives, godchildren and servants, in amounts varying from $500 to $75,000. As to the amounts thus given, he directed his trustees "to pay over the above mentioned legacies in full and without deduction for commissions * * X transfer or succession tax By this provision the testator, as it seems to me, clearly intended that his real estate should, immediately upon death, be treated as personal property, because it is only in this way that his trustees could do what he directed. They were to invest and keep the same invested in such securities as they might approve and pay over to his wife, what?- not rents, issues and profits derived from real estate, but the income derived from the investments. The amount given to the seventeen different persons was not an interest in land, but a specified interest in "the principal so held in trust," that is, money or securities in which the same had been invested.

*

his

His

words are, "to pay over the above mentioned legacies in full."

App. Div.]

First Department, December, 1911.

It was only by a conversion of his real estate into money that this provision of his will could be carried out, either as to his wife or the seventeen other persons named. The use of the word "devise" is not significant, nor should weight be given to it in construing the clause, because to do so would destroy the intent of the testator. (Kalbfleisch v. Kalbfleisch, 67 N. Y. 354.) The general rule is that, if it is necessary to carry out the intent of a testator that his real estate should be converted into personalty, then it will be so regarded as of the date of his death. (Stagg v. Jackson, 1 N. Y. 206; Power v. Cassidy, 79 id. 602; Wells v. Wells, 88 id. 323; Lent v. Howard, 89 id. 169; Delafield v. Barlow, 107 id. 535; Salisbury v. Slade, 160 id. 278; Matter of Tatum, 169 id. 514; Given v. Hilton, 95 U. S. 591.) The trustees, in another portion of the will, were given the power of sale, which, while not in terms imperative, nevertheless must be regarded, in order to carry out the general scheme of the testator, to operate as an immediate conversion and this would be so even though they were vested, for the benefit of the estate, with discretion as to the time the sale was to be made. (Lent v. Howard, supra.) In that case the testator authorized his executors to sell his real estate, convert the same into money at such time or times and at such prices as should to them seem for the best interest of his estate and to carry out any and all contracts executed by him. He further directed them "after paying debts and carrying out the provisions of my will as above directed, to invest all the balance and remainder of my estate remaining in their hands" in certain securities. The court held that "it is clear that a conversion was necessary to accomplish the purpose and intention of the testator in the disposition of the proceeds, and when the general scheme of the will requires a conversion the power of sale operates as a conversion, although not in terms imperative."

In Asche v. Asche (113 N. Y. 232) the court said: "The necessity of a conversion to accomplish such purposes is equivalent to an imperative direction to convert, and effects an equitable conversion of the property."

In M'Cready v. Metropolitan Life Insurance Co. (83 Hun, 531; affd., 148 N. Y. 761), a case in some respects quite similar

First Department, December, 1911.

[Vol. 147. to this, except that the securities in which the investments were to be made were specified, the court said: "It will be observed that by the provisions of the will last referred to, the executrix is required to invest all the real estate, as well as other property of the testator, in certain specified securities of a particular character. Of course that could not be done without disposing of the real estate, and this clause operates as an equitable conversion of the realty into personalty for the purposes of the trust, and an implied power of sale, therefore, exists."

It is also to be observed that in what is termed the residuary clause the trustees are directed "to pay over and transfer" words peculiarly applicable to the distribution of personal property — which emphasizes what has already been said, that it was the intent of the testator that immediately upon his death his real estate should be converted into money. In this provision of his will he sought to provide not only for lapsed legacies, but also for any surplus derived from the sale of the real and personal property after the bequests made by him had been paid or that his wife might possibly outlive all of the legatees, a contingency quite improbable but not impossible.

Third. The provisions in the will for the benefit of the widow, while not so expressed in words, were intended by the testator to be in lieu of dower. This seems necessarily to follow from the fact that such provisions, if not antagonistic to are certainly inconsistent with a claim in this respect on her part. After making the specific bequests to her he gave "all the rest, residue and remainder" of his property, "real and personal," to his trustees or such of them as might qualify and act as such for the purpose of having them invest the proceeds and keep the same invested in such securities as they might approve and collect the income derived therefrom and pay the same to his widow during her life, when the same were to be disposed of as directed.

If it be true, as we have heretofore seen, that the trustees were bound to sell the real estate for the purpose of providing the principal from which the income was to be paid, then certainly he did not intend her to have dower in such land. She could not have both. She could not insist upon the sale of the

App. Div.]

First Department, December, 1911.

real estate for the purpose of setting up the trust and at the same time assert her claim for dower. This he must have known. The whole scheme of the will, so far as she is concerned, indicates that this was his purpose. The provisions in the will for her benefit, and a claim to dower, are so inconsistent that to enforce one would destroy the other. She was, therefore, put to an election as to which she would take (Asche v. Asche, supra), and the same had to be made within one year after his death, unless the time were extended. (Real Prop. Law [Gen. Laws, chap. 46; Laws of 1896, chap. 547], § 181; now Real Prop. Law [Consol. Laws, chap. 50; Laws of 1909, chap. 52], 201.) It was unnecessary for him to state his intention in express words, because the same could be implied from the other provisions of the will. (Matter of Gorden, 172 N. Y. 25.)

"It has been held that a bequest in lieu of dower, and the acceptance of same, amounts to a matter of contract and purchase; that the wife is to be paid the bequest in preference to other legacies and without abatement, the debts being first paid." (Flynn v. McDermott, 183 N. Y. 62; Dunning v. Dunning, 82 Hun, 462; affd. on opinion below, 147 N. Y. 686.)

What the vice-chancellor said in Isenhart v. Brown (1 Edw. Ch. 411) is quite applicable here. He said: "I am bound to regard the law as settled that, under circumstances like the present, a widow is entitled, after payment of the debts, to the whole provision which the husband chooses to make for her by his will, in lieu of dower, in preference to all other legatees, who are consequently to be postponed, where there is a deficiency of assets. Of course, the debts must be paid before she can be entitled even to specific legacies, but these debts may be paid out of other parts of the estate in exoneration of what is specifically bequeathed or devised. In the present instance the testator has authorized his real estate to be sold by his executors, and has disposed of the whole of it as personal estate. There is no difficulty, therefore, in applying the proceeds of the real estate, as well as the proceeds of the personal property not specifically bequeathed, to the payment of the debts."

For the reasons above stated, it seems to me, the real estate of the testator must be deemed as converted into money as of