Alsop v. . Bowers ( 1877 )

Pjearson. C. J.

The general rule is, a residuary legacy is to be taken for the payment 'of debts in the first instance ; then general or pecuniary legacies; th n specific legacies. When there are several legacies in the same class the abatement is pro rata

It was conceded on the argument that the legacy of Martha Burnett is not a “residuary legacy” in the sense in which these words are used by the books. But it was insisted that :as she took the residue of a fund after the payment of certain amounts to Powell ami others, the legacy bears a close analogy to a residuary legacy and is to be taken for the payment of debts in the first instance, aud has no claim upon the pecuniary legacies for abatement pro rala.

We do not think the analogy applies. The reason for subjecting a residuary legacy to the payment of debts in the-first instance, is, because in most wills there is an express-provision for the payment of debts and until that is done, the subject of the legacy is not ascertained. The words-commonly used, are “after the payment of my debts and the legacies hereby given I bequeath the residue of my estate, &c ” Where thei’e is no express provision to that effect,, the Courts supply it by implication. As to the legacies set out in the will, the word “residue” covers them. As .to the-payment of his debts the reasoning is; the testator knew that his debts had to be paid belore h's legacies, ergo, subjecting this legacy to the payment of all other legacies, of' necessity subjects it to the payment of his debts in the first instance. This reasoning does not apply to a specific legacy of an ascertained fund minus the payment out of it of certain sums to be paid to her grand nephews and nieces, for-there is nothing to imply that it was the intention to add also ‘ minus the payment of my debts” an unexpected event.

We ai’o satisfied that it was the intention of the tcstati’ix to divide this fund between her niece and giand nephews- and nieces according to a ratio fixed in her mind, ■without-reference to the payment of her debts. And there is nothing to support the inference that she intended to have this-ratio of division altered by the contingency of debts. It follows that there must be a ratable abatement of what she gives to her niece and what she gives to her grand nephev s and nieces, upon the principle, “equality is equity.”

The counsel for the defendant, in our opinion, failed to distinguish this case from Everitt v. Lane, 2 Ire. Eq. 548. There the testator gives a negro by name to A and a negro- by name tQ B, and directs these negros by name to be sold,, and gives the “balance” of his negros to C; Held this is not a residuary legacy, but all. are specific legacies and must' abate ratably.

In our case, as the legacies to the defendants are pecuniary, according to the general rule, they would be liable to-debts in the first instance, but for the fact that these legacies-are demonstrative, that is to be paid out of a certain fund, which brings them up to the dignity of the specific legacy to» the plaintiff and thus calls for an abatement pro rata.

No error.

Per CuitiAM. Judgment affirmed-