In the Matter of the Judicial Settlement of the Account of Edward N. Tailer and Others, as Executors, etc., of William H. Tailer, Deceased, Respondents. Henry R. C. Watson and Others, as Executors, etc., of Maria C. Tailer, Deceased, and Others, Appellants

In the Matter of the Judicial Settlement of the Account of Edward N. Tailer and Others, as Executors, etc., of William H. Tailer, Deceased, Respondents. Henry R. C. Watson and Others, as Executors, etc., of Maria C. Tailer, Deceased, and Others, Appellants. First Department, December 29, 1911. Will — construction — specific legacy of insurance money—equitable conversion of realty — power of sale—bequest in lieu of dower—■ election — debts and expenses — when no deductions from specific legacy or legacy in lieu of dower— evidence. Whether or no a legacy is specific depends upon the intent of the testator which must be determined from the language of the bequest as read and construed in the fight of the other provisions of the will. Where a testator provided in his will that “all amounts of insurance upon my fife that are payable at my death shall be for the sole benefit of my wife, and accordingly I give and bequeath to her absolutely all the moneys due and to become due and all that may be collected from every policy of insurance now outstanding or that may hereafter be issued upon my life, ” the bequest of the insurance moneys to testator’s wife is a specific legacy. If in order to carry out the intent of a testator it is necessary to convert his real estate into personalty, the conversion takes place as of the date of his death. Where a testator, who died possessed of considerable real estate, after making several specific bequests of personalty in his will gave, devised and bequeathed his residuary estate, both real and personal, to his executors in trust “ to invest the same and keep it invested in such securities as they may approve ” and to pay the income derived therefrom to his wife during her life and upon her death to “ pay over and transfer ” the same and all accumulations thereon to certain named beneficiaries “ in full and without deduction for commissions, * * * transfer or succession tax,” it is clear that he intended that his real estate should immediately upon his death be treated as personal property because only in this way could his trustees do what he directed. The use of the word “ devise ” is not significant, for, if weight were given it in construing the clause, it would destroy testator’s intent. Where by another provision of the will the trustees were given a power of sale, the power, while not in terms imperative, must be regarded as effecting an immediate conversion in order to carry out the general ' scheme of the testator, and this would be so even were the trustées vested with discretion as to when the sale was to be made. The words “ pay over and transfer ” are peculiarly applicable to the distribution of personal property. As the specific bequests of the insurance moneys and certain other personalty were made to the widow, and, as she was given a life estate in the residuary estate, it is evident that, while not so expressed in words, such provisions were intended to be in lieu of dower. The widow could not insist on the sale of the real estate for the purpose of setting up the trust and at the same time assert a claim for dower. The provisions in the will for her benefit and a claim for dower are so inconsistent as to put her to an election as to which she will take. .It was unnecessary for the testator to state his intention that the bequests should he in lieu of dower in express words, because that could be implied from the other provisions of the will. A bequest in lieu of dower and the acceptance thereof amounts to a matter of contract and purchase; and the widow is entitled to the bequest in preference to other legacies and without abatement after the payment of debts. Under the will in question the real estate must be deemed converted into money as of the date of testator’s death, and from the proceeds of this and the proceeds of the personal property not specifically bequeathed, the debts and expenses of administration must he paid. If anything remains it should be devoted to setting up the trust as directed in the will. It is only in case such proceeds are insufficient for that purpose that the debts and expenses can be paid from the insurance moneys. It seems, that evidence that the widow had paid large sums of money tó her husband during his lifetime is admissible to show at least a moral obligation on his part to make ample provision for her benefit. Appeal by Henry E. 0. Watson and others, as executors, etc., and others, from parts of a decree of the Surrogate’s Court of the county of Hew York, entered in said Surrogate’s Court on the 13th day of April, 1908, with notice of an intention by said executors to bring up for review an allowance of $920, referee’s fees. On the 15th of July, 1905, William H. Tailer died, leaving him surviving Maria 0. Tailer, his widow, and no children or issue of children. He left a will, executed November 27, 1900, which reads as follows: “I, William H. Tailer, of the City of New York, declare this to be my last will and testament. “ I nominate and appoint my wife, Maria 0. Tailer, and my brothers, Edward N. Tailer and Robert W. Tailer, to be the executors of this, my last will and testament, and I direct that they be not required to give any bond for the faithful performance of their duties as such. I also direct them to pay all my just debts and funeral expenses as soon as practicable after my decease. •c It is my will that all amounts of insurance upon my life that are payable at my death shall be for the sole benefit of my wife, and accordingly I give and bequeath to her absolutely all the monies due and to become due and all that may be collected from every policy.of insurance now outstanding or that may hereafter be issued upon my life. “ I give and bequeath to my said wife all of my horses, carriages and harness, all my silver, paintings, books, furniture and personal effects, and all of my personal property, except money and pecuniary investments, absolutely. “All the rest, residue and remainder of my estate and property, real and personal, I give, devise and bequeath to my executors, hereinabove named, or to such of them as shall qualify and act as such, and to their successors, in trust to invest the same and keep it invested in such securities as they may approve, and to collect the income thereof and pay it over or apply it to the use of my said wife, Maria 0. Tailer, for and during the period of her life; and, from and after the death of my said wife, I give, devise and bequeath the principal so held in trust and I direct my said trustees and their successors to pay over and transfer the same and all accumulations and increase thereof as follows, that is to say: to my niece Agnes S. Bnmett, the sum of one thousand dollars; to my niece, Mary T. Livingston, the sum of one thousand dollars; to my niece, Fannie Bogert Tailer, the sum of one thousand dollars; to my nephew,' Thomas Suffern Tailer, the sum of one thousand dollars; to my nephew, James Lee Tailer, the sum of one thousand dollars; to William Hallett Tailer,' Junior, son of my nephew Henry Pennington Tailer, the sum of seventy-five thousand dollars; to my said nephew, Henry Pennington Tailer, the sum of twenty thousand dollars; to my nephew, Edward Loring Tailer, the sum of twenty thousand dollars; to my niece, Sophia Pennington Trowbridge, the sum of twenty thousand dollars; to my nephew, James Bogert Tailer, the sum of twenty thousand dollars; to my niece, Anna Tailer Cole, the sum of twenty thousand dollars; to my nephew, James Clinton Spencer, the sum of twenty thousand dollars; to my godson, Robert Reginald Livingston, the sum of five hundred dollars; to my godson, Sydney Salisbury Breese, the sum of five hundred dollars; to Robert Tailer Townsend, son of my nephew, John R. Townsend, the sum of one thousand dollars; to my coachman, Martin Haggerty, if in my service at the time of my death, the sum of one thousand, dollars; and to my butler, Charles Terry, if in my service at the time of my death, the sum of one thousand dollars; and I direct my said trustees and their, successors to pay over the above mentioned legacies in full and without deduction for commissions or for any transfer or succession tax or other charge, and to defray such commissions, taxes and other charges from the rest of the trust estate remaining in their hands. The above mentioned legacies to the children of my brothers, Edward N. Tailer and Robert W. Tailer, were not made larger because they are already well provided for and I wish only to give them a suitable token óf remembrance. “And as to the rest, residue and remainder of my said trust estate, including all lapsed legacies and all of my property not hereinabove sufficiently disposed of, I give, devise and bequeath the same, and I direct my executors and trustees and their successors to pay over and transfer the same to and among those persons who would inherit and take the same, and in the same shares and proportions as provided by the laws of the State of New York in case I had died intestate. “ I further give to my said trustees and to their successors full power to sell any or all of my real estate and to execute the necessary instruments therefor, and generally to change any of my investments in then* discretion and take all and every necessary action for the preservation or distribution of my estate. “ In Witness Whereof, I have hereto set my hand and seal this twenty-seventh day of November, in the year nineteen hundred. “W. H. TAILER. [l. s.] ” The will was admitted to probate and letters testamentary issued to the executrix and executors therein named. They qualified, entered upon the discharge of their duties, and thereafter collected upon the life insurance policies referred to in the will $120,350.23; from the sale of other personal property $20,314.93; and there still remains undisposed of personal property of a small value. From real estate sold by them they realized over andabove incumbrances, includingrentreceived, $89,904.20, and there remains undisposed of real property of the value of several thousand dollars. After the payment of the debts of the decedent, the funeral expenses, and certain expenses connected with the administration, amounting to $131,669.95, there remained in their hands from the proceeds of the personal property sold and the insurance collected, $8,995.21. Upon the presentation of their accounts for final settlement, the Surrogate’s Court held that the proceeds derived from the sale of the personal property, not including the insurance policies, be first applied towards the payment of the debts and then so much.as necessary of the proceeds of the insurance policies he applied to pay the balance; and after making such application, there remained of moneys derived from the insurance policies $8,995.21, which should he paid to the widow of the testator, after deducting certain administration expenses. The accounts were settled accordingly and a decree entered to' this effect, from each and every part of which the widow appealed, and she also brought up for review an allowance of certain items of costs. The special guardians for certain infant beneficiaries also appeal from so much of the decree as denied them extra allowance of costs. After the appeal had been taken this court appointed a referee under section 2586 of the Code of Civil Procedure to take and receive further testimony and documentary evidence as to the time when the policies of insurance were taken out, and also concerning the advancement of certain moneys to the decedent for his own use by his wife. The proof thus taken shows that all of the policies of insurance were taken out prior to the execution of the will, and it also fairly tends to establish that for many years prior to the time the testator made his will his wife had annually turned over to him an income derived from her father’s estate amounting to several thousand dollars; that she also turned over to him some five or six years before the will was made $82,500, her portion of her father’s estate then distributed; and that a part of this money was used by him in improving the real estate sold by his executors, from which $89,904.20 was realized. Since the appeal was taken the widow has died, and her executors were substituted in her place as appellants. John M. Bowers, for the appellants, the executors of Maria C. Tailer, deceased. William H. Hamilton, for the- appellants William H. Hamilton and others. Edward S. Frith, for the respondents, executors of William H. Tailer. [MAJORITY — McLaughlin, J.:] McLaughlin, J.: The main question to be determined turns upon the construction to be put upon thé will of the testator, and is presented by the appeal taken by his widow — the contention being: (1) That the gift of the insurance moneys is a specific legacy; (2) that under the terms of the will there was an equitable conversion of the testator’s real estate into money as of the date of his death; and (3) that the provisions in the will for her benefit were in lieu of dower. If the contention be correct, then the decree of the Surrogate’s Court is wrong, because she is entitled, in that case, to have the debts of the testator — there being sufficient for that purpose — paid out of the proceeds of the other property, real and personal. First. I am of the opinion that the bequest of the insurance moneys was a specific legacy. The determination of whether or not a legacy is -specific depends upon the intent of the testator, which must be determined from the language used in the bequest when the same is read and construed in the light of the language used in the other provisions of the will. (Davis v. Crandall, 101 N. Y. 311.) When the language used in this bequest is thus read and construed, it seems to me that the testator intended all of his debts should be paid out of the proceeds of his other property, real and personal, before she could be deprived of her bequest or any part of it. If nothing were received from the insurance policies, then her legacy failed (Tichenor v. Tichenor, 41 N. J. Eq. 39), and she would not have received anything, because the bequest is limited to the amount collected from such policies. The language is “ all amounts of insurance upon my life that are payable at my death shall be for the sole benefit of my wife, and accordingly I give and bequeath to her absolutely all the monies due and to become due and all that may be collected from every policy of insurance now outstanding or, that may hereafter be issued upon my life. ” All of the policies in question were issued and outstanding at the time the will was made. Observe the words for her “ sole benefit,” negativing the idea that the same was for the benefit of any one else, or could be paid to any one but her. Undoubtedly, if the other property were not sufficient to pay creditors, then the same could be taken by them, because a testator is required to pay his debts before he can give anything away. Here, no question is presented as to creditors because the other property is sufficient to pay them in full, the contest being solely between the widow on the one hand and general legatees on the other. There are numerous .authorities where it has been held that a legacy was specific in which the intent of the testator that it should be so was certainly no clearer than in the present case. Thus, a bequest of the balance or surplus due on a policy of life insurance after the satisfaction of a debt to secure which it had been assigned (Leonard v. Harney, 173 N. Y. 352); a bequest to pay a certain sum out of a bank deposit in the name of a daughter (Crawford v. McCarthy, 159 id. 514); a bequest of “ all my right, interest and property in thirty shares which I own in the Bank of the United States” (Walton v. Walton, 7 Johns. Ch. 258); a bequest of ‘' the balance of my stock as per my stock book” (Trustees, etc., v. Tufts, 151 Mass. 76); a bequest of “ whatever sum might be on deposit in Provident Savings Institution” (Towle v. Swasey, 106 id. 100); a bequest of “my books and papers of every description ” (Perkins v. Mathes, 49 N. H. 107); a bequest of all the property to which the testatrix might be entitled from the estate of her deceased husband (Moore v. Moore, 29 Beav. 496), and a bequest of “all the property I possess in the public funds ” (Cochran v. Cochran, 14 Sim. 248). Here the bequest is “absolutely all the monies due and to become due and all that may be collected from every policy of insurance now outstanding or that may hereafter be issued upon my life.” The amount thus received was h> be for her- sole benefit. She was to have this irrespective of the disposition made of the balance of his property. This was just as specific as the bequest to her of his horses, carriages, etc. Second. After the gift of the insurance moneys, the horses, carriages, etc., the testator gave, devised and bequeathed to. his executors, or such of them as might qualify, all the rest, residue' and remainder of his estate, both real and personal, in trust “ to invest the same and keep it invested in such securities as they may approve ” and pay the income derived therefrom to his wife during her life, and upon her death to pay over and transfer the same and all accumulations thereon to seventeen persons, including collateral relatives, godchildren and servants, in amounts varying from $500 to $75,000. As to the amounts thus given, he directed his trustees “ to pay over the above mentioned legacies in full and without deduction for commissions * * * transfer or succession tax * * *.” By this provision the testator, as it seems to me, clearly intended that his real estate should, immediately upon his death, be treated as personal property, because it is only in this way that his trustees could do what he directed. They were to invest and keep the same invested in such securities as they might approve and pay over to' his wife, what ? — not rents,. issues and profits derived from real estate, but the income derived from the investments. The amount given to the sevi enteen different persons was not an interest in land, but a specified interest in “ the principal so held in trust,” that is, money or securities in which the same had been invested. His words are, “to pay over the above mentioned legacies in full.” It was only by a conversion of Ms real estate into money that this provision of his wiH could be carried out, either as to his wife or the seventeen other persons named. The use of the word “devise ” is not significant, nor should weight be given to it in construing the clause, because to do so would destroy the intent of the testator. (Kalbfleisch v. Kalbfleisch, 67 N. Y. 354.) The general rule is that, if it is necessary to carry out the intent of a testator that his real estate should be converted into personalty, then it will be so regarded as of the date of his death. (Stagg v. Jackson, 1 N. Y. 206; Power v. Cassidy, 79 id. 602; Wells v. Wells, 88 id. 323; Lent v. Howard, 89 id. 169; Delafield v. Barlow, 107 id. 535; Salisbury v. Slade, 160 id. 278; Matter of Tatum, 169 id. 514; Given v. Hilton, 95 U. S. 591.) The trustees, in another portion of the will, were given the power of sale, which, while not m terms imperative, nevertheless must be regarded, in order to carry out the general scheme of the testator, to operate as an immediate conversion and this would be so even though they were vested, for the benefit of the estate, with discretion as to the time the sale was to be made. (Lent v. Howard, supra.) In that case the testator authorized his executors to sell his real estate, convert the same into money at such time or times and at such prices as should to them seem for the best interest of his estate and. to carry out any and all .contracts executed by him. He further directed them “after paying debts and carrying out the provisions of my will as above directed, to invest all the balance and remainder of my estate remaining in their hands” in.certam securities. The court held that “it is clear that a conversion was necessary to accomplish' the purpose and intention of the testator in the disposition of the proceeds, and when the general scheme of the will requires a conversion the power of sale operates as a conversion, although not in terms imperative.” In Asche v. Asche (113 N. Y. 232) the court said: “The necessity of a conversion to accomplish such purposes is equivalent to an imperative direction to convert, and effects an equitable conversion of the property.” In M’Cready v. Metropolitan Life Insurance Co. (83 Hun, 531; affd., 148 N. Y. 761), a case in some respects quite similar to this, except that the securities in which the investments were to be made were specified, the court said: “ It will be observed that by the provisions of the will last referred to, the executrix is required to invest all the real estate, as well as other property of the testator, in certain specified securities of a particular character. Of course that could not be done without disposing of the real estate, and this clause operates as an equitable conversion, of the realty into personalty for the purposes of the trust, and an implied power of sale, therefore, exists.” , . It is also to be observed that in what is termed the residuary clause the trustees are directed “to-pay over and transfer” — words peculiarly applicable to the distribution of personal property—which emphasizes what has already been said, that it was the intent of the testator that immediately' upon his death his real estate should be converted into money. In this provision of his will he sought to provide not only for lapsed legacies, but also for any surplus derived from the sale of the real and personal property after the bequests made by him had been paid or that his wife might possibly outlive all of the legatees, a contingency quite improbable but not impossible. Third. The provisions in the will for the benefit of the widow, while not so expressed in words, were intended by the testator to be in lieu of dower. This seems necessarily to follow from the fact that such provisions, if not antagonistic to are certainly inconsistent with a claim .in this respect on her part. After making the specific bequests to her he gave “ all the rest, residue and remainder” of Shis property, “real and personal,” to his trustees or such of them as might qualify and act as such for the purpose of having them invest the proceeds and keep the same invested in such securities as they might approve and collect the income derived therefrom and pay the same to his widow during her life, when the same were to be disposed of as directed. If it be true, as we' have heretofore seen, that the trustees were bound to sell the real estate for the purpose of providing the principal from which the income was to be paid, then certainly he did not intend her to have dower in • such land. She could not have both.' She could not insist upon the sale of the real estate for the purpose of setting up the trust and at the same time assert her claim for dower. This he must have known. The whole scheme of the will, so far as she is concerned, indicates that this was his purpose. The provisions in the will for her benefit, and a claim to dower, are so inconsistent that to enforce one would destroy the other. She was, therefore, put to an election as to which she would take (Asche v. Asche, supra), and the same had to be made within one year after his death, unless the time were extended. (Real Prop. Law [Gen. Laws, chap. 46; Laws of 1896, chap. 547], § 181; now Real Prop. Law [Consol. Laws, chap. 50; Laws of 1-909, chap. 52], § 201.) It was unnecessary for him to state his intention in express words, because the same could be implied from the other provisions of the will. (Matter of Gorden, 172 N. Y. 25.) “It has been held that a bequest in lieu of dower, and the acceptance of same, amounts to a matter of contract and purchase; that the wife is to be paid the bequest in preference to other legacies and without abatement, the debts being first paid.” (Flynn v. McDermott, 183 N. Y. 62; Dunning v. Dunning, 82 Hun, 462; affd. on opinion below, 147 N. Y. 686.) What the vice-chancellor said in Isenhart v. Brown (1 Edw. Ch. 411) is quite applicable here. He said: “I am bound to regard the law as settled that, under circumstances like the present, a widow is entitled, after payment of the debts, to the whole provision which the husband chooses to make for her by his will, in lieu of dower, in preference to all other legatees, who are consequently to be postponed, where there is a deficiency of assets. Of course, the debts must be paid before she can be entitled even to specific legacies, but these debts may be paid out of other parts of the estate in exoneration of what is specifically bequeathed or devised. In the. present instance the testator has authorized his real estate to be sold by his executors, and has disposed of the whole of it as personal estate. There is no difficulty, therefore, in applying the proceeds of the real estate, as well as the proceeds of the personal property not specifically bequeathed, to the payment of the debts.” For the reasons above stated, it seems to me, the real estate of the testator must be deemed as converted into money as of the date of his death, from which, and the proceeds of the personal property not specifically bequeathed, the debts and expenses of administration must first be paid. If anything remains it should be devoted to the setting up of the trust as directed in the will. If such proceeds be insufficient for that purpose, then the balance of such debts and expenses must be paid from the insurance moneys. In reaching this conclusion I have not considered the evidence taken by the referee, showing or tending to show the receipt by him from his wife of the money derived by her from her father’s estate. This evidence,, however, might properly be considered as showing at least a moral obligation resting upon the testator to make ample provisions for the benefit of his wife. I, however, prefer to rest my conclusion upon the language used in the will itself. It is a general rule that provisions in a will for the benefit of a wife should be construed liberally in her favor (Moffett v. Elmendorf, 152 N. Y. 487), and such rule should be here applied. If the foregoing views be correct, then it is unnecessary to consider or. pass upon the questions presented by the other appeals. It follows that the decree of the Surrogate’s Court appealed from must be reversed and the matter sent back, with directions to enter a decree in accordance with the views expressed in this opinion, with costs in this court to all parties filing separate briefs, payable out of the estate. Ingraham, P. J., Clarke, Scott and Dowling, JJ., concurred. Decree reversed and proceeding remitted to surrogate, as directed in opinion, with costs to all parties appearing, payable out of the estate.