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Orton v. Orton.

ORTON v. ORTON.

September, 1867.

The term legacy includes any gift of personal property by will, as well

those made in lieu of dower, as those which are gratuitous. The rule that a legacy in lieu of dower is to be preferred to other gen.

eral legacies, in case of a deficiency of assets, does not apply where the will directs that the legacies mentioned in it shall abate ratably.

James Orton and others appealed to the supreme court from a decree of the surrogate of the county of Dutchess, made on an accounting in the matter of the estate of Henry T. Orton. The respondents in the appeal were Lina Orton and others. The only question arose upon the construction of the will.

The appellants and all of the respondents except Lina Orton, were heirs at law of Henry T. Orton, deceased, and legatees under his last will and testament. Lina Orton is his widow.

By his will the said Henry T. Orton gave to his widow, Lina Orton, in lieu of dower, twenty-five thousand dollars. He also gave her the use of his dwelling-house, with the buildings and lands adjoining, during her natural life. He also gave her, absolutely, all his farming utensils, household furniture and stoves. He then disposed, by devise, of certain real estate which he had in the State of Connecticut, and gave legacies of various sums, respectively, to the appellants and respondents, except the said Lina Orton. The will then proceeded as follows: “My lot of land in the town of Washington, Dutchess county, and State of New York, containing about twelve acres, I direct to be sold, and the sum realized therefrom to be divided among all my heirs in proportion to the sums given to each. At the death of my wife, I direct the surviving executors to sell my house and lot in the town of Washington and divide the sum realized therefrom among the surviving legatees, or their children, in proportion to the legacies of each. Should my estate not be sufficient to pay the amount of the within named legacies, the deficit shall be divided therefrom in proportion to the sums given to each ; if there be a surplus,

Orton v. Orton.

it shall be divided to each, in proportion to the sums given, and subject to the same conditions."

The defendants, Lina Orton, Sarah E. Brace, and his nephew, Samuel De Graff Orton, were appointed executors of the will, and authorized, for the purpose of paying his debts and legacies, to sell or otherwise dispose of property, real and personal, as they should deem best.

Upon the final settlement of the executors before the surrogate of Dutchess, after paying all debts and legacies, there was found to be a surplus amounting to forty-one thousand eight hundred and twelve dollars and seventy-five cents. This included the sum realized from the sale of the twelve-acre lot in the town of Washington, which the executors were directed by the will to sell and divide among all the heirs of the testator in proportion to the sums given to each, which sum was eight hundred and forty dollars.

In the distribution of this surplus, under the will, the surrogate gave to the defendant, Lina Orton, the widow of the testator, the sum of twenty thousand eight hundred and fiftytwo dollars and fifty cents, being, or intended as, the proportiou thereof to which she is entitled under the direction that the surplus “ shall be divided to each in proportion to the sums given ” each by the will, and counting the twenty-five thousand dollars given her in lieu of dower, as the “sum given ” to her mentioned in that clause.

The supreme court held, that the surrogate erred in awarding the widow any part of the proceeds of the real estate in Washington, for by the will this was given to the heirs in proportion to the sums given to each of them by the will; but that the surrogate was right in allowing her proportion in the surplus, and according to her legacy; for the amount given her must be deemed a legacy, although given in lieu of dower. Accordingly, the sum of four hundred and seventeen dollars and ninety-two cents, of the proceeds, was deducted from the sum awarded to the widow, and directed to be distributed to the heirs in proportion to the amounts of their respective pecuniary legacies; and the widow was adjudged to be entitled to twenty thousand four hundred and thirty-four dollars and fifty-eight cents, as her distributive skare.

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The heirs, excepting two of them, joined in an appeal to this court, from that part of the judgment which allowed her the latter sum.

R. H. Chittenden, attorney for plaintiff, appellant;—Cited Bunner v. Storm, 1 Sandf. Ch. 357;* Mann v. Mann, 14 Johns. 1; affirming 1 Johns. Ch. 231; McKeen's Appeal, 42 Penn. 479; De Kay v. Irving, 5 Den. 646; affirming 9 Paige, 521; Brown v. Lyon, 6 N. Y. (2 Seld.) 419; 5 Com. 221; 1 Bradf. 208; Lasher v. Lasher, 13 Barb. 106; 2 Blackst. 512; 2 Stephens, 258; Isenhart v. Brown, 1 Edw. 411; Leonard v. Steele, 4 Barb. 20; Hubbard v. Hubbard, 6 Metc. 20; Bull v. Church, 5 Id. 207; 14 Ves. 382; 18 Id. 49; Hepburn v. Hepburn, 2 Bradf. 74; 1 Russ. 543; Williamson v. Williamson, 6 Paige, 298; 1 Roper on Legacies, 247, 430; Just. Inst. lib. 2 A, 20, 8 13; Dig. de Donat. lib. 39 A, 5, 1, 29; Id. 1.1; Id. 1. 18; Havens v. Havens, 1 Sandf. Ch. 324; Parks v. Parks, 9 Paige, 107; Areson v. Areson, 5 Hill, 410;t Brown Legal Maxims, 243, et sequens; Sholl v. Sholl, 5 Barb. 312; Jarman on Wills, Rule X and cases cited; Cromer v. Pinckney, 3 Barb. Ch. 466.

Calvin G. Child and Lyman D. Brewster, for defendants, respondents ;-Cited 1 Jarman on Wills, 4 Am. ed. 384, and n. 1, 397; 2 Williams on Exrs. 4 Am. ed. 1298, and 1. 1, 947; Hyde v. Baldwin, 17 Pick. 308; 1 Roper, 297, 432; 2 Redf. on Wills, 750, 553, n. 25, 551, § 10; 753, § 32, 433, n. 18; Blower v. Morrett, 2 Ves. Sen. 420; Burridge v. Brady, 1 P. Williams, 126; Heath v. Hendy, 5. Russ. 543; Davenhill v. Fletcher; Ambler, 244; Norcut v. Gordon, 14 Sinn. 258; Asa v. Simpson, 5 Beav. 35; Wood v. Vandenburgh, 6 Paige, 277; Isenhart v. Brown, 1 Edw. 411; Locock v. Clarkson, 1 Dessau S. Car. 471, 500; Hubbard v. Hubbard, 6 Metc. 50; Pollard v. Pollard, 1 Allen, 490; Nevis v. McCraig, 3 Metc. Ky. 151; Jett v. Bernhard, 3 Coll. Virg. 11; 2 Madox Ch. 57; Hopgood v. Houghton, 22 Pick. 480; East v. Cook, 2 Ves. Sen. 30; Ward v. Ward, 15 Pick. 511; Pickering v. Stamford, 3 Ves. 332;

* Execution of powers ;-examined in 1 N. Y. (1 Comst.) 341, 350. + Reversed in 3 Den. 458.

Orton v. Orton.

Lyon v. Acker, 33 Conn. 222, 224; Garrick v. Lord Camden, 14 Ves. 380; ut ait Sir S. Romilly arg.; Havens v. Havens, 1 Sandf. Ch. 324; approved, Mills v. Mills, 28 Barb. 454; Pirnie v. Purdy, 19 Id. 60; Ward v. Grey, 26 Beav. 485; Heath v. Weston, 3 De Gex, M. & G. R. 601; Jarman on Wills (Wal. & V. S. ed.) 707; Broom Legal Maxims, 243; Dashwood v. Peyton, 18 Ves. 49; McKeen's Appeal, 42 Penn. 479; 2 Story Eq. Jur. & 1098; 4 Kent, 5 ed. 57.

BY THE COURT.-J. M. PARKER, J.-The question is, whether the widow, by virtue of the twenty-five thousand dollars given her in lieu of dower, is entitled, under the clause in the will in respect to the division of the surplus, to share in such surplus. The appellants insist that she is not, on the ground that the testator intended, as shown by the will, to divide the surplus among the legatees in proportion to their legacies, and that a bequest in lieu of dower is not a legacy, and the widow, in respect to such bequest, not a legatee.

Notwithstanding the bequest to the wife was declared to be in lieu of dower, it is incorrect to say that it was not a legacy. Such it was in legal as well as common parlance, and it is constantly called by that name in the books. 2 Williams on Exrs. 1169, 1170; 2 Redf. on Wills, 553, n. 25; 1 Roper on Leg. 297; 432; Wake v. Wake, 1 Ves. Jr. 335; Williamson v. Williamson, 6 Paige, 298. Every bequest of personal property is a legacy, including as well those made in lieu of dower, and in satisfaction of an indebtedness, as those which are wholly gratuitous. The circumstance, whether gratuitous or not, does not enter into consideration in the definition. It is the synonym of the word “ bequest. Thus, in Jacob's Law Dictionary, it is defined to be “ a bequest or gift of goods and chattels by will or testament." In Bacon's Abridgment a legacy is defined, “ a gift or bequest of a particular thing by testament." Bac. Abr. Legacy. “The word devise' is specially appropriated to a gist of lands, and the legacy to a gift of chattels.Id. note

. And when it is said that a legacy is a gift of chattels, the word is not limited in its meaning to a gratuity, but has the more exxtended signification, the primary one given by Worcester in his dictionary, "a thing given, either as a gratuity or as a

Orton v. Orton.

recompense.” Thus the chancellor, in Williamson v. Williamson, 6 Paige, 298, 305, uses this language: “For this reason the legacy of the wife, given in lieu of dower, does not abate ratably with others, if the fund is sufficient to satisfy all.”

The expression, “the within named legacies," then, as used in the clause of the will disposing of the surplus, clearly includes the bequest of the widow, and the language of that clause makes that bequest, equally with the others, subject to abatement in case of deficiency to pay the whole, and entitled to its proportionate increase in case of a surplus.

No donbt the rule is, that a legacy in lieu of dower is to be be preferred, in case of a deficiency of assets, to other general legacies. Williamson v. Williamson, supra. But this rule is for cases where the will does not provide a different one. The bequest to the wife, in lieu of dower, may be made subject to any condition which the testator chooses to impose upon it, for the wife is not obliged to give up her dower in exchange for it, unless she so elects. If it is incumbered by a condition, the acceptance of it is subject to such condition. In the case at bar, when the testator said: “Should my estate not be sufficient to pay the amount of the within named legacies, the deficit shall be deducted therefrom in proportion to the sums given to each,” he made the amount of the legacy to his wife conditioned upon the sufficiency of his estate to pay all the legacies in full, and her election was made in view of that condition, and when he said further, " if there be a surplus, it shall be divided to each in proportion to the sums given, and subject to the same conditions," he gave to this legacy the condition that it should be increased, from the surplus, in the same proportion that it was subject to be diminished by the deficiency. Such is the clear and explicit language of the clause in question, and there is nothing in the other parts of the will, or in the circumstances of the case, to cast a doubt upon this interpretation.

It is manifest from the case, that the sum named as the legacy in lieu of. dower, very far exceeds the value of the dower, the estate consisting principally of personal property. The aggregate amount of the legacies, including that given to the wife, is fifty thousand one hundred dollars. It seems, then,

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