In re Paddock

<p>Will — when legacies are payable, and what legacies are a charge, upon the testator’s real property.</p> <p>Stephen M. Paddock, in 1887, executed his last will and testament, by which he gave to his wife a life estate in his homestead farm and any lands which he might buy adjoining the farm. He then gave to his wife §1,000 out of his personal estate with which to erect two dwelling houses for Prank Terry and Eugene Terry. The will then directed the executors to pay to each of two. parties §25 a year during the lifetime of his wife and, after her death, §100. The 4th clause of the will empowered the executors to sell all other real estate . of which the testator might die seized and, from the proceeds thereof, to pay his wife §1,000 with which to erect a monument. The Use and income of the remainder of the testator’s personal property was then given to the wife for life, and it was provided that the above provisions for her benefit were in lieu, of dower and her distributive share in his estate.</p> <p>The 7th clause of the will provided that, after the death of the testator’s wife, his estate should be divided between two of his sisters and his nephew in specified proportions. The 9th clause of the will provided: “ After the decease of my said wife, my surviving executor is hereby authorized and empowered to sell the rest and residue of my real estate and convey the same for the purpose of carrying out this instrument.”</p> <p>In October, 1894; the testator executed a codicil to the will providing, “I give, devise and bequeath to Eugene Terry and Frank Terry the sum of one thousand dollars each.”</p> <p>The testator died October 18, 1895, and his widow died June 26, 1901.</p> <p>It appeared that the testator was a farmer whose income was between §400 and §500 a year, and there was nothing to indicate that he had any expectation of augmenting his property to any material extent. After the making of the will he purchased some real estate adjoining the homestead farm, and, in addition thereto, he had a small parcel of real estate which the executors sold under the 4th clause of the will for a small amount.</p> <p>It did not appear that the testator had any other real estate. At the time of the testator’s death his personal property was just about sufficient to pay his debts. After the death of his widow the surviving executor sold the homestead farm for about §6,000, and at the time of his accounting had in his hands for distribution the sum of $6,620.26.</p> <p>Held, that it was the testator’s intention that his widow should have the use of the homestead farm for life, and that she should not be deprived of such use by the sale of the property for the payment of any legacies;</p> <p>That the legacy of §1,000, given to the testator’s widow for the. erection of the two houses for the benefit of Frank Terry and Eugene Terry, was to be paid from the personal property in which was to be included the proceeds of the real estate other than the homestead farm;</p> <p>That such legacy was not charged upon the homestead farm or upon the land adjoining it;</p> <p>That it was the testator’s intention that the legacies bequeathed to Frank Terry and Eugene Terry by the codicil should be paid at the death of the widow and from the proceeds of the homestead farm.</p>