Opinion
May, 1904.
Kurzman Frankenheimer, for executrix.
Fleischman Fox, for Charles Rosenbaum and other heirs.
The legacy of $500 to Sarah Hamburger, who was living at the time of the death of the testatrix, did not lapse because of the death of the legatee in the lifetime of the husband of the testatrix, though such legacy was payable only at his death. Mitchell v. Knapp, 27 N.Y. St. Repr. 604; Loder v. Hatfield, 71 N.Y. 97. The amount of this legacy will be paid to the administrator of Sarah Hamburger.
The twenty-eighth clause of the will does not assume to pass the general residue of the estate of the testatrix, in excess of the legacies, specifically limited as to their amounts, therein set forth. The testatrix was clearly of the opinion that the legacies contained in clauses 5 to 27, inclusive, would probably exhaust her entire estate, and might not suffice to pay all of such legacies in full, and she carefully designated those of them which should abate, if any abatement was found necessary. She supposed it possible that there might be a surplus, not exceeding $1,600, and, therefore, made legacies to that amount, payable only out of such surplus, such legatees to share in such surplus ratably, if it should not suffice to pay them in full. As a matter of fact the estimate of the testatrix of the value of her estate, at the time she made her will and up to the time of her death, was correct. Subsequent to her death the parcel of real estate, which was her principal asset, greatly rose in value, and was sold for a price which leaves a surplus, over and above all legacies, in the hands of the executors. As to such surplus the testatrix died intestate.
The surplus thus created is a part of the proceeds of land sold under a power. The power directed a sale for the payment of legacies and, to the extent of the legacies, the land was legally converted into personalty. The surplus over legacies is, however, for the purpose of determining the rights of persons claiming to take under the laws governing intestate estates, to be treated as real property, and passes to the heirs-at-law of the testatrix and not to her next of kin. Parker v. Linden, 113 N.Y. 28. If counsel do not agree as to the proportions in which division of the surplus is to be made, they may submit memoranda of their contentions on the settlement of the decree. Tax costs and settle decree on notice.
Decreed accordingly.