Kincaid v. Moore , 1907 Ill. App. LEXIS 687 ( 1907 )

Mr. Justice Puterbaugh

delivered the opinion of the court.

It is contended in behalf of Joseph Denny and Phoebe K. Hitt that the annuities to them respectively should not have been abated. That section 79 of the Administration Act is intended to apply only as between legatees of the same class; that said annuities, being specific legacies, should not be abated for the benefit of the residuary legatees. . Said section provides, in substance, that where a widow renounces all benefit under a will, and the legacies and bequests therein contained to other persons, shall in consequence thereof become diminished in amount, quantity or value, it shall be the duty of the court upon settlement of the estate to abate from such legacies and bequests in such manner as to equalize the loss sustained in corresponding ratio to the several amounts of such legacies and bequests according to the amount or intrinsic value of each. Rev. Stat. 1905, 118. In support of such contention, counsel rely chiefly upon the case of Lewis v. Sedgwick, 223 Ill. 213, where it is said: “® * * if the estate for any reason should turn out to be less than the testator anticipated, or if for any reason there is required an abatement as to any of the legacies, general legacies or residuary funds must first be abated before any abatement of the specific legacies could be required.' We are of opinion that the shares of * * * stock disposed of * * * are specific legacies. The residuary fund under the will may be classed as a general legacy. Section 79, for the equalizing of legacies, was passed in substantially the same form as at present, in 1845. It is to be presumed that the legislature had in mind the law requiring general legacies first to be abated before trenching upon the funds of the specific legatees. We do not believe it was their intention to make a different rule in the case of renunciation affecting legatees than in other cases where legacies were diminished or increased, but rather to apply the same rule. Such is the construction' we give to this statute.”

The court there defines “specific legacies” in the following language: “The general rule has always been that á specific legacy is a gift of a specific part of the testator’s estate, identified and distinguished from all things of the same kind, and can only be satisfied by the delivery of that particular thing.”

All pecuniary bequests not within the foregoing definition, and it is manifest that those here involved are not, are ordinarily termed general legacies, whether directed to be paid in gross or in installments at stated periods, and neither is entitled to priority over the others, in case an abatement is necessary, unless a different intention appears from the will itself. Williams on Executors, p. 1367; Emery v. Batchelder, 78 Me. 233; University Appeal, 97 Pa. St. 187; Wcerner on Adm., p. 452. But while the so-called specific legacies and the annuities here in question, stand upon the same footing as to propriety, we do not think it is contemplated by the statute that such general legacies should abate for the benefit of residuary legatees. Nor does the Lewis case, supra, so hold. It is undoubtedly true, as is there stated, that under the statute general or residuary legacies must abate for the benefit of specific legacies if necessary. That is to say, that when no residuum exists, the general legacies must abate for the benefit of specific legacies. We do not understand, however, that where there is ample estate to pay both specific and general legacies; the latter must abate for the benefit of residuary legatees. ¡Residuary legacies carry only that which is left after all express or prior dispositions of the testator have been satisfied ; hence residuary legatees can in no case call upon general or specific legatees to abate unless it is expressly so provided by the terms of the will. 2 Redf. on Wills, 451; Wcerner on Adm., 452.

We think the chancellor properly held that the land located in DeWitt county was alone chargeable with the payment of the money legacies other than the annuities, the fund provided for the erection of a monument, and the costs and expenses of administering the estate. While there are general expressions in other clauses of the will which seem contradictory thereto and inconsistent therewith, we are satisfied from a consideration of the entire will that the intention of the testator is expressed by the sixth clause, which, in effect, charges the same upon the DeWitt county lands alone. Moreover, in view of. the fact that all of the real estate is subject to be charged with the payment of the debts and costs and expenses of administration, in the event that it should become necessary to resort thereto, insofar as such debts and costs are concerned, the expressions contained in the clauses other than the sixth are not necessarily in conflict or inconsistent therewith.

In this particular the decree of the Circuit Court is affirmed. Insofar as it abates the annuities to Joseph Denny and Phoebe K. Hitt it is reversed. The cause is therefore remanded with directions to the Circuit Court to proceed in accordance with the views herein expressed.

Affirmed in part, reversed in part, and remanded with directions.