In re Paddock

The construction of the will in question presents some problems not easy of solution. I am convinced that it was intended that the testator’s widow should have the use of the homestead farm for life, and that she should in no way be deprived of that use by a sale of the property for the payment of any legacies. The legacy of $1,000 given to her for the erection of the two houses for the benefit of the respondents here was to be paid from the personal property. In this should be included the proceeds of real estate other than the homestead farm, which the executors were authorized and empowered to sell under the 4th clause of the will. That *272real estate was charged with the payment of this legacy. The legacy was not, in my judgment, charged upon the homestead farm •or the land adjoining it which was given to the widow for use during her life. The very use to be made of the legacy negatives an intention to charge it upon the homestead farm. It was to be used during the life of the widow for the purpose of erecting two houses upon the property owned by the widow which she was, in her will, to give to these beneficiaries.

Whether the legacies given to the respondents by the codicil to the will were a charge upon the homestead farm presents a more •difficult question. If those legacies must be held to be payable upon the death of the testator, I should strongly incline to think that they were not charged upon the homestead farm. As I have before indicated, I cannot believe that the testator intended that in ■any event the use of the homestead farm should be taken from his widow. While these legacies are absolute in terms, I think it was not intended that they should be enjoyed until after the death of the widow. The testator is presumed to have known that he had no property with which to pay them until after the death of the widow. The legacy of $1,000 given to his widow for their benefit by the 2d clause of the will was to be enjoyed by them only after the death of the widow, when they should receive, under the widow’s will, the land upon which the houses were to be built. After the death of the widow, the surviving executor was directed to sell the homestead farm “ for the purpose of carrying out this instrument.” In view , of ' all these circumstances, the probable intention of the testator was to give tó these respondents these legacies of $1,000, making them payable at the death of the widow and from the proceeds of the homestead farm. With this construction, the will seems to be consistent and one possible of execution.

The decree should, therefore, be reversed on law and fact, and the matter remitted to the surrogate, with directions to ■ proceed in, accordance with the views here expressed.

All concurred; Parker, P. J.¿ in result.

Decree of the surrogate reversed on law and facts and matter remitted to the surrogate, with directions to proceed in accordance with opinion.