Opinion
April 6, 1934.
John F. Frees, for the executrix.
Fraser, Speir Meyer, for the Woodlawn Cemetery, legatee.
By appropriate amendment of the petition for the judicial settlement of the account of the executrix and due notice to the interested parties, the decedent's will is now presented for determination as to whether or not his realty is charged with the satisfaction of the general legacies and for instructions as to the pecuniary legacy in trust for the perpetual care of the burial plot.
I find no testamentary intention to make up any deficiency in personalty by resort to the realty, and, therefore, hold that the general legacies, as such, are not charged upon decedent's realty.
Although the bequest for the perpetual care of the cemetery plot is a general legacy, it is also a testamentary provision for part of the testator's funeral expenses and, so far as reasonable, is payable out of decedent's realty if the personalty is insufficient for that purpose. I find that the amount specified by the testator is reasonable in view of the value of his estate.
The parties agree, and I find, that the income of this trust will be insufficient to carry out all the minute details of the testamentary directions for such perpetual care. The trust is for a charitable and benevolent use (Pers. Prop. Law, § 13-a), and under statutory authority (Pers. Prop. Law, § 12, subd. 2) I direct that the bequeathed amount be paid to the named trustee, the Woodlawn Cemetery, in trust, to expend the income thereof for the care of the plot, as far as possible in the manner prescribed by the testator, but only to the extent that the income actually received by it will permit. Thus the general purposes of such bequest will be most effectually accomplished.
The sole residuary devisee has expressed her desire to release the realty from the satisfaction of this legacy or funeral expense by payment out of her personal funds. The decree she submits as executrix may, therefore, direct such payment by the executrix. Settle decree.