Cole v. Niles , 10 N.Y. Sup. Ct. 326 ( 1874 )

Countryman, J.

This legacy must be regarded as lapsed, unless it can be sustained as a provision for the payment of a debt due from the testator to the deceased legatee. As it does not fall within the exceptions created by the Revised Statutes (2 R. S. 66, § 52) saving certain classes of legacies from lapsing, the question must be determined under the rule at common law. The provision in question is in terms a mere proposition to adjust a claim held by the legatee against the testator, upon the basis of the legacy, which is directed “ to be paid * * upon the express condition that he shall not render any account against the estate.” From the facts found below, it appears that the testator was indebted to the legatee in an amount not . exceeding the legacy, that the estate has been settled and distributed, and nó claim presented to the testator’s estate on behalf of the estate of the legatee, and that due notice was given by the plaintiff before the final settlement to the defendants, of the acceptance of the legacy, and a demand made for its payment. The legacy was given on condition that it be accepted in payment of the claim held by the legatee against the testator, or as a satisfaction of the debt. Payment of the claim could have been enforced against the testator or his estate, as well by the personal representatives of the legatee after his death, as by the legatee in person if alive, and the representatives could also as well adjust the claim by accepting the proposal of the testator ahd receiving the legacy in payment. The reason of the rule for a lapse in the case of an ordinary legacy, that there is no one in whom the legacy can vest at the time of the testator’s death, has therefore no application, as it was not intended that the bequest should vest, and it would not have vested in this case, if the legatee had survived, except upon the condition that it was accepted in absolute payment. And as already stated, this acceptance could be given as effectually by the personal representatives of the legatee after his decease, as by him in person during his life. Where it is the intention of the testator that the legacy shall be deemed a satisfaction of a pre-existing debt, the acceptance of the legacy will extinguish the debt. Williams v. Crary, 4 Wend. 444. The legacy is the price or value put by the testator upon the opposing claim, which is submitted for acceptance at his decease. The final acceptance of the proposal involves the relinquishment of the claim, and forms a good consideration for the legacy. A contract is thus completed by which the legatee or his representatives becomes entitled to the legacy, not as a bounty, but as the purchase price of the claim, which has been canceled or abandoned. This exception to the ordinary rule that a legacy must lapse whenever the legatee has died before the death of the testator, has been repeatedly recognized in the English courts, and provisions of this character have invariably been sustained. Williamson v. Naylor, 3 Younge & Collyer, 208; Philips v. Philips, 3 Hare’s Ch. 281; Turner v. Martin, 7 DeGex, Mc N. & Gor. 429; Matter of Sowerby, 2 Kay & Johns. 630. It is doubtless true that the legal definition of a legacy embraces “ a thing given as a gratuity or as a recompense,” and therefore includes “as well one made in lieu of dower and in satisfaction of an indebtedness ” as one'which is wholly the bounty of the testator. Orton v. Orton, 3 Keyes, 486. But it is equally true, that different rights attach to these different classes of legatees, both as between themselves and with reference to the estate. In case of a deficiency of assets, legacies founded on a previous indebtedness, or other valuable consideration, do not abate ratably with other general legacies, but must be first paid in full. These legatees take their legacies as purchasers, and they are only liable to abatement as between themselves. Wood v. Vandenburgh, 6 Paige, 278; Williamson v. Williamson, id. 298. Upon the same principle, such a legacy must be enforced when accepted by the representatives of a deceased legatee, notwithstanding his death occurred befóte the death of the testator.

The judgment of the special term must be affirmed, with costs.

Judgment affirmed.