Delaware County NyArchives Court.....American, Baptist Home Mission Society Vs. Ezekiel Foote 1889
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Source: Reports Of Cases - New York
Written: 1889

Fourth Department, May Term, 1889.

THE AMERICAN BAPTIST HOME MISSION SOCIETY, THE AMERICAN BAPTIST MISSIONARY UNION 
and THE BAPTIST MISSIONARY CONTENTION OF THE STATE OF NEW YORK, Respondents, v. 
EZEKIEL T. FOOTE, Appellant, Impleaded with Others.

Legacies, not specifically charged upon the real estate — when so charged, in 
default of sufficient personal property, under the terms of a gift of the rest, 
residue and remainder of the estate — pleading, foreign or domestic 
incorporation.

A testatrix, after giving certain pecuniary legacies, provided by her will as 
follows: 
"I give, devise and bequeath all the rest, residue and remainder of my property, 
of every name and nature whatsoever, to Ezekiel T. Foote." There was no 
provision of the will specifically charging the legacies upon the real estate, 
and it appeared that the personal property left by the testatrix was 
insufficient, by about one-third of the amount thereof, to pay the legacies, and 
that she died seized of certain real estate.

In an action, brought to charge the real estate, passing under the residuary 
clause of the will, with the payments of the legacies:

Held, that, under the circumstances of this case, the legacies were charged upon 
such real estate.

Semble, that a complaint which states the facts from which a conclusion must 
follow, under the definition given in subdivision 18 of section 3343 of the Code 
of Civil Procedure, as to the plaintiff being a foreign or domestic corporation, 
although the fact is not specifically alleged, sufficiently complies with 
section 1775 of such Code.

Appeal from an interlocutory judgment entered, upon the decision of the Delaware 
Special Term, in the office of the clerk of Delaware county, April 26, 1888, 
overruling the demurrer of the defendant Ezekiel T. Foote to the complaint.

The complaint alleges that the plaintiff "The American Baptist Home Mission 
Society "is a corporation duly organized and incorporated under special acts of 
the legislature of the State of New York, describing them; that the 
plaintiff "The American Baptist Missionary Union" is a corporation duly 
organized and incorporated, first under certain acts of the legislature of the 
State of Pennsylvania, describing them; also under an act of the State of 
Massachusetts, describing it; also under chapter 17 of the Laws of the State of 
New York for 1870, entitled "An act in relation to the American Baptist 
Missionary Union;" that the plaintiff "The Baptist Missionary Convention of the 
State of New York" is a corporation of the State of New York, duly organized and 
incorporated; that each of said corporations are authorized to receive the 
bequests thereinafter specified; that on December 14, 1882, Lois J. Fitch died, 
leaving a will of real and personal property, which was duly admitted to probate 
in Delaware county on January 29, 1883; that said will, after giving certain 
specific legacies, gave to each of the defendants, except Ezekiel T. Foote, a 
pecuniary legacy aggregating $1,200, and to each of the plaintiffs the sum of 
$500, and then came this clause: "Thirteenth. I give, devise and bequeath all 
the rest, residue and remainder of my property, of every name and nature 
whatsoever, to Ezekiel T. Foote, to have and to hold the same forever," and Orlo 
T. Foote is appointed executor; that the other defendants, except Ezekiel T. 
Foote, are made defendants because they decline to be plaintiffs, and the 
plaintiffs sue for the benefit of all the monetary legatees; that the said 
testatrix did not have sufficient personal property to pay said legacies in 
full, and the executor has had an accounting and settlement as to the personal 
property, resulting in a decree on March 13, 1885, distributing to the 
plaintiffs each the sum of $340.70, and a proportionate amount to each of the 
other legatees, and the balance of the legacies, besides interest, is wholly 
unpaid; that the deceased left certain real estate, describing it, which is 
occupied by the defendant Ezekiel T. Foote, he having elected to take under the 
will as residuary legatee and devisee, and being in the receipt of the rents and 
profits, and refusing to pay the balance of the legacies. Judgment is demanded 
that the legacies be declared a lien on the real estate, and that the same be 
sold for their payment. The defendant Ezekiel T. Foote demurs on the ground that 
the complaint "does not state facts sufficient to constitute a cause of action, 
and is insufficient in law upon the face thereof."

Robert T. Johnson, for the appellant.

John B. Gleason, for the respondents. 

Merwin, J.:

It is claimed by the appellant that the complaint is insufficient on its face 
because it does not state whether the plaintiff "The American Baptist Missionary 
Union" is a foreign or domestic corporation, as required by section 1775 of the 
Code. It was held at Special Term that this section was substantially complied 
with, inasmuch as the facts were stated from which a conclusion must follow 
under the definition given in subdivision 18 of section 3343. This is a 
reasonable construction and should be followed. No point is made on this subject 
as to the other plaintiffs. If the complaint is good as to them, there is some 
doubt at least about the ground of demurrer as taken being available. If the 
point is made as to all the plaintiffs, it is not entirely clear that demurrer 
in this form will lie. (Irving N. Bank v. Corbett, 10 Abb. N. C. 85; Hafner and 
S. F. Co. v. Grumme, 10 Civ. Pro., 176.) But that question need not now be 
decided. 

It is further claimed that under the will in question the legacies are not a 
charge on the real estate. There is no specific charge. The legacies are given 
and then comes the residuary clause — "all the rest, residue and remainder of my 
property." The effect to be given to such a residuary clause has been a matter 
for consideration in a great many cases with results not in harmony. The latest 
expression of the views of the Court of Appeals is found in Brill v. Wright (20 
N. Y. State Rep., 305). It is there said that the cases in this State establish 
these two propositions, first, that general language in a will giving legacies, 
followed by the usual residuary clause, is alone insufficient to charge the 
legacies on the realty; and, second, that such language will justify such 
charge, if it is made to appear by extrinsic circumstances, such as may under 
the rules of law be resorted to to aid in the interpretation of written 
instruments, that it was the testator's intention that the legacies should be 
charged on the land. In that case, the testator, after providing for the payment 
of debts, gave to B. the sum of $2,000 to be paid within three months after his 
(the testator's) decease and then gave "all the rest and residue of all my real 
and personal estate" to other parties. It appeared that the debts were small and 
that the personal estate would have been sufficient to pay the legacy, had it 
not been for extraordinary expenses in the proof of the will and on the 
accounting. It was held that the legacy was not a charge on the real estate. 
Significance was given to the fact that under ordinary circumstances the 
personal estate would have been sufficient, and to the fact that the legacy was 
made payable in three months.

It may be that, under the rule laid down in the above case, the legacies in 
question would not, upon the face of the will, be a charge on the real estate. 
It is, however, alleged, and it is a proper circumstance to be considered, that 
the testatrix did not have sufficient personal property to pay the legacies in 
full. A circumstance of this kind, an inadequacy for the payment of legacies, 
although greater in degree, existed in the case of McCorn v. McCorn (100 N. Y., 
511), and was considered very significant on the question of intention. There 
was there, as here, the use of the expression, "the rest of the property" and 
that was deemed important. There was in the mind of the testatrix, in the use of 
the residuary clause, no distinction between real and personal property. It was 
all apparently as one mass from which she took and devoted to certain purposes 
certain sums, and the rest, or balance, gave to the residuary legatee. In this 
respect this case differs from the Brill case.

The complaint does not allege the date of the will. The allegation of inadequacy 
is general. We cannot assume there was any material change in the estate between 
the date of the will and the death. We must rather assume that inadequacy of the 
personal estate, as alleged, was known to the testatrix. If the estate was 
depleted by any extraordinary circumstances, after the death or after the will 
was made, that is matter to be developed at the trial. 

The ordinary expenses of settlement the testatrix is supposed to have taken into 
account. Nor can we assume that the amount of deficiency, about one-third, is 
such as can be fairly called a small and unexpected lack of personal property so 
as to have no bearing on the question of intention. It is not to be presumed 
that the testatrix would, in form, give $2,700, to be paid out of a fund of 
$1,800.

Having in view the allegation of inadequacy and the form of the residuary 
clause, we are of the opinion that, under the complaint the real estate would be 
chargeable with the balance of the legacies.

It follows that the judgment should be affirmed, with costs, with leave to the 
defendant to answer upon payment of costs of demurrer and of the appeal.

Hardin, P. J., and Martin, J., concurred.

Judgment affirmed, with costs, with leave to defendants to answer upon payment 
of costs of the demurrer and of the appeal.

Additional Comments:
Reports of Cases Heard and Determined in the Supreme Court of the State of New 
York. Marcus T. Hun, Reporter. Volume LIX, 1889, HUN 52. Banks & Company, 
Albany, NY. 1901.

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