Statement of case. APPEAL from order of the General Term of the Supreme Court, in the fifth judicial department, made October 4, 1887, affirming an order of Special Term which denied a motion to confirm the report of a referee and directed as to the disposition of an award herein for certain water rights condemned for the use of the city of Rochester. (Reported below, 46 Hun, 651.) Prior to the year 1878 the city of Rochester constructed a system of water-works, by which it used certain water privileges which were appurtenant to the lands of one Hiram Smith. In that year he, with other owners of premises similarly affected, commenced an action to restrain the city. He was unsuccessful until, by the judgment of this court, his right to maintain the action was established. (92 N. Y. 463.) After the reversal by this court of the judgments below, an order of injunction was granted. Hiram Smith died May 14, 1883, leaving a will, dated April 10, 1883, by which he disposed of his real and personal estate as follows, viz. : “First. After all my lawful and just debts are paid and discharged, I give and bequeath unto my wife, Emily C. Smith, one equal one-third of all the personal property of which I may die seized, and the use or income from one-third of my real estate, during the term of her natural life. * * * "Second. The residue or remainder of my real and personal estate of every name or nature, I give, devise and bequeath unto my son George R. Smith in manner following: One equal one-half of the same to him absolutely. The other equal one-half to him in trust for the benefit and maintenance of my daughter Emma C. Smith.” That testator empowered his son to manage Emma's share and to pay over to her the income and also such part of the principal as he might choose; and he might transfer to her the title to the property held by him as trustee and, upon properly accounting, thus release himself from the trust. Power was given to him, as executor or trustee, to sell, etc., any of testator's property and to invest the same according to his discretion, and the right was given also to continue the business in which Statement of case. testator was engaged at the time of his death, in testator's name or otherwise, for such time as he might choose. George qualified as executor. At the time of his death the testator was engaged in the milling business. In November following his death, for considerations expressed in the conveyance, the widow and daughter of deceased conveyed to George the flouring-mill premises, water privileges and rights, now in question, the machinery, stock in trade and indebtedness due the estate; he assuming payment of all incumbrances and indebtedness. In March, 1884, the city of Rochester instituted these proceedings to acquire, as against the owners of the mill property in question, and of other owners of mill privileges, the permanent and perpetual right to draw water to condemn the privileges injured thereby, and to ascertain, by commissioners, the amount of the compensation to be made to such owners. In June, 1885, the commissioners awarded to George and Emma Smith, as owners, the sum of $21,000. George, being indebted to William Hamilton, appellant herein, had assigned to him, in March, 1884, all his interest in the award as security for what was owing then and for what he might thereafter become indebted to him for. Hamilton's claim amounted, at the time of these proceedings, to some $14,000. In December, 1884, George made a general assignment to said Hamilton for the benefit of his creditors. When the award of damages was made the conflicting claims to the fund were referred for determination. They were made by Hamilton, by creditors of the decedent Hiram Smith and by George, as executor of his father's will. He filed his first account, as such executor, in September, 1886, which, at the time of these proceedings, had not been judicially settled; from which it appeared that there were presented debts against the estate, in addition to claims allowed and paid in full, amounting to about $25,000, of which about $23,000 remain unpaid and unsecured. The referee sustained the claim of Hamilton to the fund in SICKELS-VOL. LXV. 21 Statement of case. virtue of the assignment to him individually and of the other assignment to him for the benefit of George's creditors, holding that the real estate was not devised charged with the payment of testator's debts. At Special Term, however, his report in that respect was modified and payment ordered to be made to George, as executor, for distribution among the creditors of the estate. This disposition of the fund by the Special Term was sustained by the General Term, and from the order of the General Term Hamilton appealed to this court. Theodore Bacon for appellant. The limitation prescribed by the statute constitutes a bar to any proceeding to charge the realty with the payment of debts. (Slocum v. English, 2 Hun, 78; 62 N. Y. 494; Parkinson v. Jacobson, 18 Hun, 353.) The court erred in holding that the will of Hiram Smith made his debts a charge upon his real estate. (Lupton v. Lupton, 2 Johns. Ch. 614; Reynolds v. Reynolds, 16 N. Y. 257, 261; Shulters v. Johnston, 38 Barb. 80, 84, 85, 90; Myers v. Eddy, 47 id. 263, 270, 274; Willard on Exrs. 392; Kinnier v. Rogers, 42 N. Y. 531.) Though the real estate be charged, yet the personal estate is the proper fund for the payment of debts and legacies and is to be first applied before charging the real estate. (Lupton v. Lupton, 2 Johns. Ch. 614.) If a 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 sufficient the legacy fails. (Harris v. Fly, 2 Paige, 425; Myers v. Eddy, 47 Barb. 271.) The state of the testator's property cannot be resorted to as a criterion to explain his will. (Tole v. Hardy, 6 Cow. 333, 341; Heslop v. Gatton, 71 Ill. 528; Wright v. Denn, 10 Wheat. 81.) An unexpressed intent to charge debts upon the realty ought not to be inferred from a mere formula. (Myers v. Eddy, 47 Barb. 274; Shallcross v. Finden, 3 Ves. 738; Shulters v. Johnston, 38 Barb. 85; Taylor v. Dodd, 58 N. Y. 335, 347.) The residuary clause did not operate to charge the debts upon the real estate. (Lupton v. Lupton, 2 Johns. Ch. 623; Rey Statement of case. nolds v. Reynolds, 16 N. Y. 260; Kinnier v. Rogers, 42 id. 534; Myers v. Eddy, 47 Barb. 263; 3 Atk. 626, note; 2 Johns. Ch. 624.) Even had the real and personal estate been blended, as assumed by the court, such blending does not operate to effect a charge not otherwise appearing in the will. (Lupton v. Lupton, 2 Johns. Ch. 623; Nyssen v. Gretton, 2 Y. & C. 222; Reynolds v. Reynolds' Exrs., 16 N. Y. 261, 262; Kinnier v. Rogers, 42 id. 534.) J. A. Stull for respondent. The injury to the Honeoye Falls mill property, caused by the construction of its waterworks by the city of Rochester being in the nature of a trespass, did not run with the land, but a right of action therefor accrued to Hiram Smith before his death, was a personal claim, and on his death passed as personal property and not as real estate to his executor, and as such was a primary fund for the payment of his debts. (Schuylkill & Susquehanna R. R. Co. v. Decker, 2 Watts [Pa.] 343; McFadden v. Johnson, 72 Penn. 335, 336; McClintock v. R. R. Co., 16 P. F. Smith, 409; King v. Mayor, etc., 102 N. Y. 171, 175.) The first assignment to Hamilton was a mere mortgage, was not recorded; the second assignment was a voluntary conveyance, without new or valuable consideration paid, and so neither of the assignments to Hamilton was protected by the recording acts. (Tiffany v. Warren, 37 Barb. 571; Dickinson v. Tillinghast, 4 Paige, 220; Shotwell v. Harrison, 30 Mich. 179.) All the bequests and devises of the will being made "after all just and lawful debts are paid and discharged," and as the residuary clause relates to both real and personal property without distinction between the two kinds of property and the executor is given a power to "sell, transfer and convey, mortgage or lease any of the property," it would be a strained and unreasonable construction to hold that this award was real property and that the testator did not intend to charge upon his real estate the payment of his debts. (Shallcross v. Finden, 3 Vesey, Jr. 738; Lupton v.Lupton, 2 Johns. Ch. 614; Harris v. Fly, 7 Paige, 421; Tracy v. Tracy, 15 Barb. 503; Reynolds Opinion of the Court, per GRAY, J. v. Reynolds, 16 N. Y. 257; Manson v. Manson, 8 Abb. N. C. 124; Shulters v. Johnson, 38 Barb. 808; Taylor v. Dodd, 58 N. Y. 334, 335, 346.) Since by the will the real as well as the personal estate was charged with the payment of the testator's debts the provision of the Code of Civil Procedure, referred to by the referee (§ 2749), is not applicable, including the three years limitation therein provided (Code, § 2750). The claim to the fund was held in trust by George R. Smith, as executor, and if Hamilton received it at all, it came to him impressed with the same trust, so that he must account for it as trustee ex maleficio. (Segelkin v. Meyer, 94 N. Y. 474; Boyce v. Brockway, 31 id. 490; Grand Trunk Railway v. Edwards, 56 Barb. 408.) * * GRAY, J. Section 2749 of the Code of Civil Procedure provides that "real property, of which a decedent died seized * may be disposed of for the payment of his debts and funeral expenses, as prescribed in this title, except where it is devised expressly charged with the payment of debts and funeral expenses," etc. Section 2750 provides that such a disposition may be effected by a proceeding before the Surrogate's Court, instituted by unsecured creditors "at any time within three years after letters were first duly granted within the State, upon the estate of a decedent." By the force of these enactments, the debts of a decedent, by the rights of creditors, will seek the real estate when the personalty is exhausted, and the only restriction upon their rights is the not unreasonable one of the period of time within which they shall be enforced. As the three years had more than elapsed in this case, the statutory remedy of the creditors of Hiram Smith against the real estate is no longer available. The question of the proper disposition of the fund in question is, therefore, of considerable moment to the parties interested in his estate. The water privileges, which the city of Rochester, through its proceedings, condemned, were appurtenant to the real estate devised by the testator. They constituted an easement |