Tract v. Tracy
New York Supreme Court
This action was brought by the plaintiff, widow and administratrix of Otis I. Tracy, who died in 1850, leaving a will, and infant children, as well as other children of full age. The personal property of the testator was insufficient to pay his debts. His real estate was therefore sold, under the order of the court. After the payment of such debts, a surplus of $500 from such sale remained.
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This action was brought by the plaintiff, widow and administratrix of Otis I. Tracy, who died in 1850, leaving a will, and infant children, as well as other children of full age. The personal property of the testator was insufficient to pay his debts. His real estate was therefore sold, under the order of the court. After the payment of such debts, a surplus of $500 from such sale remained. The suit was brought to obtain among other things a construction of the will of the deceased, and to determine the disposition of the surplus, under the provisions of the will. The will, after directing…
1Opinion of the CourtMason, J.
The only question presented in this case is, whether the three legacies of $150 each, to Joseph, Jane and Mary, are to be deemed a charge upon the real estate of the testator. The general rule upon this subject is, that the personal estate is the primary fund for the payment of debts and legacies, and therefore if the testator gives a legacy without specifying who shall pay it, or out of what fund it shall be paid, the legal presumption is that he intended it should be paid out of his personal estate only, and if that is not suEcient, the legacy fails. (Harris v. Fly, 7 Paige, 421.)
The…
2Cases cited2 opinions
- Harris v. FlyNew York Court of Chancery · 1839
- Hassanclever v. TuckerSupreme Court of Pennsylvania · 1803
3Cited by16 opinions
- In re the Estate of LilienthalNew York Surrogate's Court · 1930
- Myers v. EddyNew York Supreme Court · 1866
- Goddard v. PomeroyNew York Supreme Court · 1862
- Knotts v. BaileyMississippi Supreme Court · 1876
- Clark v. HornthalMississippi Supreme Court · 1872
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