Bancroft v. Bancroft , 104 Mass. 226 ( 1870 )

Gray, J.

The testator expressly directs that in case his estate shall prove insufficient to pay all his bequests and legacies, the bequests to and for the benefit of his daughter shall be postponed to the provisions for his wife, and be preferred to the legacies to other persons; and that those legacies shall share pro rata in the residue, if insufficient to pay them all. As between the absolute bequest of fifty thousand dollars to the daughter, and that of one hundred and fifty thousand dollars in trust to pay the income to her for life and the remainder to her issue and appointees, he neither directs nor indicates any preference, but includes in one class “ the bequests to my said daughter or for her benefit, to be held in trust or otherwise as aforesaid.” The residue of his estate, after fulfilling the provisions made for his wife, is insufficient to satisfy these two bequests. It must therefore be proportionally divided between them, one fourth paid to the daughter absolutely, and three fourths held in trust for her benefit according to the will. Miller v. Huddlestone, 3 Macn. & Gord. 513, and Law Rep. 6 Eq. 65 Coore v. Todd, 7 De Gex, Macn. & Gord. 520.

Decree accordingly.