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estate, but both must abate proportionably (2). And whether *an annuity is to commence immediately on the death of the testator or at a future period, this principal will equally apply (y). And if annuities abate with reference to other legacies, they must, of course, abate between themselves. Accordingly, in Innes v. Mitchell (z), a testator had bequeathed an annuity of 300l. to his three daughters, and the survivors and survivor, with a gift over to the last survivor of the sum set apart to answer the annuity: After the death of one of the daughters, the fund set apart was lost by the misconduct of the trustee, and the annuity remained unpaid for the rest of the lives of the other two; but after their deaths a sum of money, forming part of the residue, but of less amount than the original fund, became available: And it was held, that the annuity must be supposed to have continued until it was put an end to by the principal money falling in; and that such money must be apportioned ratably between the arrears which would, on that supposition, be due to the daughters respectively, and the sum originally set apart, and which belonged to the last survivor (a).

allowable.

But if by the express words or fair construction of the will, the intent of the testator is clearly manifest to give one in what cases general legatee a priority to the others, that intention such priority is must be carried into effect (b) as where the testator gave legacies to his two sons and his daughter, with a proviso, that if the assets should fall short for the satisfaction of those legacies, *his daughter notwithstanding should be paid her full legacy, and the

Huddlestone, 3 Mac. & G. 513. But if annuities are given as specific gifts of interest in the real estate, they shall not abate with legacies charged generally on the real estate: Creed v. Creed, 11 Cl. & F. 491 (overruling the decision of Sugden, C., of Ireland, 1 Dr. & W. 416).

(x) The annuity ought to be valued, and the annuitant will be entitled at once to the amount of the valuation, subject to an abatement in proportion to the abatement of the pecuniary legacies Wroughton v. Colquhoun, 1 De G. & Sm. 357. Carr v. Ingleby, ibid. 362. Long v. Hughes, ibid. 364. But see Wright v. Callender, 2 De Gex, M. & G. 652. Gratrix v. Chambers, 2 Giff. 321.

(y) Innes v. Mitchell, 1 Phill. Ch. C. 716.

(2) 2 Phill. Ch, C. 346, reversing in part the decision 1 Phill. Ch. C. 710.

(a) See also Todd v. Bielby, 27 Beav. 353, as to the proper mode of ascertaining the value of the annuities, in a case where several annuities are given, and the fund proves deficient, and some of the annuitants are dead and some are living. Heath v. Nugent, 29 Beav. 226. See also Potts v. Smith, L. R. 8 Eq. 683. Re Wilkins, 27 C. D. 703. As to the period at which the value must be taken, see Fielding v. Preston, 1 De G. & J. 438.

(b) Lewin v. Lewin, 2 Ves. Sen. 415. Re Hardy, 17 C. D. 798, 803.

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abatement be borne proportionally by the legacies of the sons only (c). So where the testator, after giving various legacies, expressed at the end of his will his apprehension that there would be a considerable surplus of his personal estate, beyond what he had before given away in legacies, for which reason he gave several further legacies; and afterward, by a codicil, he gave several other legacies; it was decreed, that the subsequent legacies given by the will, having been given on a presumption that there would be a surplus, and there happening to be no surplus, the former legacies should have a preference, and the legacies at the end of the will should be lost; and also, that the same apprehension of a surplus must be intended to have continued in the testator at the time of making his codicil: and therefore, unless the inference could be repelled, the legacies given by the codicil must be lost also (d). Again, where a testator gave 1,000l. to trustees upon trust to pay the interest to his wife, during her life, and after her decease he declared his will to be, that the 1,000l. should become part of his personal estate, and applicable to the trusts or payment of the legacies given by his will; and he gave a legacy of 500l., in trust for N. M. and his wife, in nearly the same words; it was held, that a priority was given to these two legacies (e).

But the onus lies on the party seeking priority, to make *out that such priority was intended by the testator, and the proof of this must be clear and conclusive (ƒ). The reason of it is, that the testator, in the absence of plain proof to the contrary, must be deemed to have considered that his estate would be sufficient to answer the purposes to which he has devoted it, and consequently not to have thought it necessary to provide against a deficiency by giving a priority, in case of a deficiency, to some of the objects of his bounty.11 Therefore

(c) Marsh v. Evans, 1 P. Wms. 668. (d) Att.-Gen. v. Robins, 2 P. Wms. 23.

See also Accord. Stammers v. Halliley, 12 Sim. 42.

(e) Brown v. Brown, 1 Keen, 275. Re Hardy, 17 C. D. 798. There would seem to be no presumption of an intention to give priority to a wife or children before strangers, notwithstanding the observations of Malins, V.-C., in this case, as the learned vice-chancellor himself recognizes in Roper v. Roper, 3 C. D. 714, 720. See for further examples of preference of general legatees

in payment, in consequence of the intention of the testator, not expressed in terms, but sufficiently apparent from the whole contents of the will, Lewine. Lewin, 2 Ves. Sen. 415. Beeston . Booth, 4 Madd. 161, 170. Pepper. Bloomfield, 3 Dr. & W. 499. Haynes

v. Haynes, 3 De Gex, M. & G. 590. Gyett v. Williams, 2 Johns. & H. 429.

(f) Miller v. Huddlestone, 3 Mac. & G. 523, by Lord Truro.

11. The intention to prefer a legacy must be clear. Croswell on Exrs. § 489; Woerner on Admn. § 451; Swazey .

where the expressions are ambiguous, and do not mark with certainty the testator's intention, no priority can be allowed: Thus it is not sufficient that the testator gives a direction as to a general legacy to his wife, that it shall be paid immediately after his death, out of the first money that shall be received by the executors (g). So if the words are " Imprimis," or "in the first place, I give 1,000l. to A.," this will not give a priority to other general legatees (h). In the case of Beeston v. Booth (i), the testator gave his personal estate to executors, in the first place, to pay debts, funeral and testamentary expenses;

American Bible Society, 57 Me. 523; Everett v. Carr, 59 Me. 330; University's Appeal, 97 Pa. St. 187. It will not be sufficient that the legacy is given “for his services in assisting me at various times," Duncan v. Franklin Township, 16 Stew. (N. J.) 143; or to an executor, "over and above any commissions," Waters. Collins, 3 Dem. 374; or "additional to the usual commissions, and as a full compensation for extra trouble," Clayton v. Akin, 38 Ga. 320. Neither are "first of all-next," sufficient expression of such intention, Everett v. Carr, 59 Me. 325; nor a direction that the order of the provisions may be changed to explain the intention, Estate of Scoffin, 15 Phila. 572; or to carry them out in their designated order as funds permit, Estate of Waln, 109 Pa. St. 479; S. C. 16 Phila. 401; or to pay certain of the legacies at an earlier time than others, Harvard College v. Quinn, 3 Redf. 514. So, the recital of an agreement to pay, "having heretofore engaged to pay and paid " a certain sum annually to the university, does not put the legacy on the footing of a debt, and is not sufficient to make a preference of the future payments to be made after testator's death. University's Appeal, 97 Pa. St. 187. Legacies in will and in codicil are subject to like abatement. Detwiller v. Hartman, 10 Stew. (N. J.) 347.

But where a testator gives demonstrative legacies payable out of a certain

bond and mortgage, and other legacies after the bond and mortgage are paid, the latter abate before the former. Estate of McMahon, 132 Pa. St. 175. If, however, he gives a legacy to A. "before all other legacies," and a legacy to B. payable out of the proceeds of a farm, which proceeds are bequeathed for that purpose, A.'s legacy is preferred, and the proceeds of the farm are applicable first to it. Bright's Appeal, 100 Pa. St. 602. So, a direction that "no part be given till provision has been made" for previous legacies gives them a preference. Everett v. Carr, 59 Me. 325. A legacy for a headstone is preferred (as part of the funeral expenses of testator). Wood v. Vandenburgh, 6 Paige 277. The express preference of some general legacies leaves others of the same class still subject to abatement among themselves. Swazey v. American Bible Society, 57 Me. 523.

(g) Blower v. Morret, 2 Ves. Sen. 420. But this case was expressly dissented from by Malins, V.-C., in Re Hardy, 17 C. D. 798, 801, where he held that a bequest by a testator to his wife of all his furniture and effects, together with the sum of 500l. "which I direct to be paid to her immediately after my decease," had priority over all the other pecuniary legacies. See, however, contra, Re Schweder's Estate [1891], 3 Ch. 44.

(h) Brown v. Allen, 1 Vern 31. (i) 4 Madd. 161.

and in the next place, three legacies to B., C., and D., with legal interest from three months after his death; and afterward to raise and set apart three sums of money to be applied as therein mentioned: Upon a question of abatement, the court declared, upon the principle before stated, that none of the legacies were entitled to a priority of payment, and, therefore, that all of them must abate proportionally, according to the general rule (k).

Legacies in the

*It is necessary here to refer to the class of legacies alluded to in a previous section (1), as being in the nature of specific nature of specific legacies, and sometimes called demonstrative legacies, legacies. viz. bequests of money with reference to a particular fund for their payment, and not simply a gift of the specific fund itself; Those legatees have such a lien upon the specific fund referred to, that they will not be obliged to abate with general legatees: 12 And in this, as in the preceding cases, the testator's intention is the principle for it is inferred, that he, in referring to specific parts of his estate for payment for particular legacies, intended those legacies as a preference to others which he had not so secured (m).

It has appeared, that as long as any of the assets, not specifically

(k) See also Thwaites v. Foreman, 1 Coll. 409. Creed v. Creed, 1 Dr. & W. 416. 11 Cl. & F. 491. Ashburnham v. Ashburnham, 16 Sim. 186. Miller v. Huddlestone, 17 Sim. 71. 3 Mac. & G. 513. Lord Dunboyne v. Brander, 18 Beav. 313. Beav. 591.

Eavestaff v. Austin, 19 Haynes v. Haynes, 3 De Gex, M. & G. 591. Coore v. Todd, 23 Beav. 92. 7 De Gex, M. & G. 520. Wright v. Weston, 26 Beav. 429. Haslewood v. Green, 28 Beav. 1. Elwes v. Causton, 30 Beav. 554.

(1) Ante, p. *1021.

12. Demonstrative legacies to the extent of the fund or property specifically designated for their payment do not abate with general legacies, Woerner on Admn. § 452; Matter of Hopkins, 57 Hun 9; Estate of Barkley, 10 Pa. St. 387; Bowen v. Dorrance, 12 R. I. 269; but abate with general legacies as to any deficiency after the special fund is exhausted, Florence v.

Sands, 4 Redf. 206; Gelbach v. Shirely, 67 Md. 498; Lake v. Copeland, 82 Tex. 464 and if payable out of the same fund they abate proportionally inter se, Sumner v. Society, 64 N. H. 321; Estate of Apple, 66 Cal. 432. So, where certain amounts are given out of a fund, and the residue to A. Alsop v. Bowers, 76 N. C. 168. A demonstrative legacy charged on lands devised abates with the devise. Knecht's Appeal, 71 Pa. St. 333; Grim's Appeal, 89 Pa. St. 333. And a legacy charged on land abates with general legacies if so intended. Rambo . Rumer, 4 Del. Ch. 9.

(m) Roberts v. Pocock, 4 Ves. 150. Lambert v. Lambert, 11 Ves. 607. Robinson v. Geldard, 3 M. & G. 735, 745, by Lord Truro. Acton v. Acton, 1 Meriv. 178. Creed v. Creed, 11 Cl. & F. 491, 509, per Lord Cottenham. Tempest v. Tempest, 2 K. & J. 635, affd. 26 L. J. Ch. 501.

cies.

bequeathed, remain, such as are specifically bequeathed are not to be applied in payment of debts (n); although to the com- Of the abatement plete disappointment of the general legacies: But when of specific legathe assets, not specifically bequeathed, are insufficient to pay all the debts, then the specific legatees must abate, in proportion to the value of their individual legacies (o). So a legatee entitled to a legacy of the sort just mentioned, in the nature of a specific legacy, must abate with the specific legatees (p).

An important inquiry, connected with this subject, some*times occurs; viz. under what circumstances the specific legatees of chattels can compel the devisees of the real estate of the testator to contribute to the satisfaction of his debts, in case the general personal estate proves insufficient for that purpose. But it will be more convenient to consider this question hereafter, together with the subject of the exoneration of real estate (g) and the doctrine of marshaling assets (r).

SECTION III.

Of the executor's assent to a legacy.

The whole personal property of the testator, as it has appeared in a former part of this work, devolves upon his executor (s).

Necessity of excomplete the title

ecutor's assent to

of legatee.

It is his duty to apply it, in the first place, to the pay ment of the debts of the deceased; and he is responsible to the creditors for the satisfaction of their demands, to the extent of the whole estate, without regard to the testator's having by the will directed that a portion of it shall be applied to other purposes (t). Hence, as a protection to the executor, the law imposes the necessity that every legatee, whether general or specific, and whether of chattels real or personal, must obtain the executor's assent 13

(n) Or of costs, when a suit has been instituted: Barton v. Cooke, 5 Ves. 464. But see Newbegin v. Bell, 23 Beav. 386. (0) Sleech v. Thorington, 2 Ves. Sen. 561, 564. Clifton v. Burt, 1 P. Wms. 680. Duke of Devon v. Atkins, 2 P. Wms. 382, 383. 2 Fonbl. Treat. Eq. B. 4 Pt. 1, ch. 2, s. 5, note (q). Fielding v. Preston, 1 De G. & J. 438. (p) Roberts v. Pocock, 4 Ves. 160. (q) Post, Pt. IV. Bk. I. Ch. II. § I. (r) Ibid. § II.

(8) Ante, p. 570.

See

(t) Ante, p. *1202.

13. On the testator's death legacies vest in his representatives and not in the legatees. Osgood v. Foster, 5 Allen 560. So, by statute in California (1888 Civ. Code, § 1363). And the executor's assent is necessary to the legatee's title, Croswell on Exrs. § 490; Schouler on Exrs. $488; Woerner on Admn. § 453; Wilson v. Rine, 1 Harr. & J. 138; Suggs v. Sapp, 20 Ga. 100; and to his maintenance of a suit at law, although he may sue in equity without such assent,

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