¶1 (dissenting.) The testator’s personal estate was legally and equitably the primary fund for the payment of his debts, so far certainly as it was not specifically bequeathed to his widow and his daughter. (Hoes v. Van Hoesen, 1 Com., 120; Kelsey v. Western, 2 id., 500.) And there was nothing in Ms will showing that he intended to exonerate it from that burden, and impose the payment of his debts as a duty upon his son, to whom he devised his residuary estate remaining after the marriage or decease of his widow. For it was not his debts generally that the devisee was required to pay, but only such debts as shall be outstanding at the time *516 of the decease or marriage of his widow, which evidently contemplated that his debts would be either partially or wholly paid before the happening of the event upon which his son was to take his estate. And he must necessarily, therefore, have expected and intended that such payment would be made out of his personal estate, for no other provision was made by the will for it. And it could not have been expected by the" testator that the creditors would be willing to delay enforcing payment of their debts until the devise to his son took effect in possession, by the decease or marriage of his wife. He must be presumed to have known that the creditors, in the ordinary course of legal proceedings, were entitled to collect their debts out of his personal estate within the period of eighteen months after the time of his decease, and in the absence of any immediate provision for their payment in any other way, that they would be paid in that manner. It was the debts remaining unpaid at the decease or marriage of his widow; not those owing by him . at the time of his own decease, that the testator required his son to pay. And that would include only such debts as should not previously be collected by the creditors 'through his executors in the ordinary course of the proceedings provided by the statute for that purpose.
¶2 The testator died on the 24th of June, 1861. He was married to the executrix in 1846. At that time, it is averred in the complaint, she had personal property and money to the value of about $700, all of which the testator received from her. What the property, besides the money, consisted of was not made to appear on the trial; but there was no denial of the truth of this allegation. When the testator made his will he bequeathed to his widow, to have and to hold as her own property, and dispose of as she may see fit, all the property, whether household furniture or any other kind, that she had at the time of their marriage, and all furniture, bedding and other things in the house, made while they lived together. This was plainly a bequest of existing property, as distinguished from a legacy given in part to pay, or compensate *517 her for such as should have been worn out, destroyed or lost, or for the deterioration of that still capable of being received by her. It was a present bequest, unconnected with any terms indicating it to have been the testator’s purpose to provide that his widow should be compensated for that portion of the property referred to, that might prove to be injured, worn out, lost or destroyed, beyond the benefit she would receive in that respect by the furniture, bedding and other things in the house, made while they lived together.
¶3 What the value of this property that he received from his wife was, cannot be accurately gathered from the case. For even the allegation made on the subject in the complaint is too indefinite to fix that value. The money and property aire both stated together to amount in value to about $700. But what part of this consisted in money, and' what part in other articles of property, was not stated. And in the view taken of this portion of the testator’s will, it was not very important that any accurate statement of that value should have been made. For whatever the value might prove to be, was of little consequence as long as the widow was entitled to the identical. articles themselves upon the decease of the testator. These she was entitled to, as they might be found to be without reference to the circumstance whether they proved to be worth more or less than the amount mentioned in the complaint.
¶4 The testator devised and bequeathed all his property, not specifically given to his widow and his daughter absolutely, and not necessarily required for the payment of his debts, to his widow for life, or while she should remain unmarried. There was no ambiguity or uncertainty in this part of the will. In case she afterward married, then the property she was entitled to use until that time, was bequeathed and devised to the testator’s son. If that devise and bequest should take effect in his favor in consequence of her marriage, then for the residue of her lifetime she would be entitled to her dower in her husband’s lands. (Bull v. Church, 5 Hill, 206 ; 2 Denio, 430.)
¶5*518 There was no impropriety in the disposition which was made of the costs of the parties to the suit. The ease was a proper one for their payment out of the property of the testator, not absolutely given to his widow and daughter. And as the plaintiff has failed to establish the incorrectness of the judgment pronounced by the General Term, she should be charged with the costs of this appeal. The judgment should be affirmed with costs. '.
¶6 For the modification of the judgment in accordance with the view on the opinion of Woodruff, J.
¶7 Hunt, Ch. J., Grover, Woodruff, Mason and James, JJ., for the affirmance of General Term, with the modification as to the payment of debts, suggested in Woodruff’s opinion.
¶8 Daniels and Murray, JJ., for affirmance.
¶9 Lott, J., for reversal on different grounds from the majority.