White v. Easters , 38 Ala. 154 ( 1861 )

STONE, J.

The will of- John White, out of which this litigation arises, is made up -entirely.of-specific legacies of considerable value) a few inconsiderable pecuniary legacies of ten dollars each, and a residuary clause in favor of Wilborn C. White, who was appointed executor. The complainant seeks to have the specific legatees refund to him, because, as he avers, after he had assented to the legacies and given them off, suits were instituted against him as executor, which he has defended successfully 5 but, in defending them, he alleges that he has been required to pay out large sums of money, and to devote his personal attention, for which he seeks to recover some twenty-seven hundred to three thousand dollars.

We are informed by the exhibit to the bill, that the executor received, under the clause in his favor, the sum of about twenty-nine hundred dollars, being more than the sum he claims to have allowed him for the expenses of the after-litigation. The bill does not allege or claim that any greater sum should be paid the executor than the exhibit shows he lias received as his legacy, and there is nothing in the bill or exhibit which enables us to determine what portion of the sum of $2,987 54 accrued-to the executor under the specific clause to him, and what-portion under the residuary clause* This matter being left in doubt, we must construe the clause most strongly against the pleader. The averments of the bill ar.e, that the executor has paid out money exceeding two thousand dollars, and that he and Mr. Siler have agreed on. seven hundred dollars, as his-compensation for commissions, and for personal services in superintending the litigation. These two amounts, added together, make up a sum exceeding twenty-seven hundred dollars; but how much they exceed that amount, we are not informed. The bill, then, fails to show that the complainant is entitled to receive a greater sum than has accrued to him as residuary legatee.

In the most favorable aspect in which we oan view this case, it is a bill by a residuary legatee, against specific legatees, to obtain from the latter a pro-raía abatement of their legacies for the payment of debts. The rule is clear, beyond all question, that specific legacies are not subject to abatement, until the residuary legacy is exhausted.- — -White & Tudor’s Leading Cases, (3d edition,) pages 500-505 ; 1 Roper on Legacies, 356-7, 410-11 ; Lomax on Ex’rs, (2d edition,) 304-7.

The hill failing to present a case for abatement of the specific legacies, even if the property bad remained in the^ hands of the executor undistributed, we need not inquire-of another very grave question in this case — namely, whether the executor, after voluntarily surrendering the-legacies, without requiring refunding bonds, has made a case which authorizes him to call for, contribution. On this-question 'we decide nothing. — See Alexander v. Fisher, 18 Ala. 374; Moore v. Lesueur, 33 Ala. 237-245.

The decree of the chancellor must be affirmed.