Klenke's Estate , 210 Pa. 575 ( 1905 )

Peii Cttkiam,

The legacy to appellant was “ the sum of fifteen hundred dollars ” to be paid to him within one year from testator’s death. This was a plain, ordinary gift of money, with no specified fund out of which it was to he paid or on which it was to have a preference. No doubt the testator thought there would be money to meet it, but in fact there was not, and he made no provision for such contingency. That is the legatee’s misfortune.

On the other hand, the legacy to his daughter, Mrs. Merritt, was a specific gift of stock. It is true that except as to the Birmingham Insurance Company stock, the gift was in general terms and was postponed till the death of the widow, and then subject to the deduction of eighty shares of Monongahela Water Company stock in favor of Henry Clatty. But neither of these provisions made the legacy in any sense residuary. It was just as specific as if he had said “ to Henry Clatty eighty shares and to Mary Merritt the remaining one hundred and séventeen shares of my Monongahela Water Co. stock.” The specific property given to each legatee was as clearly indicated in one case as in the other.

Appellant’s fourth assignment of error is that the stock legacy given to him at the death of the widow is sequestered for the benefit of Mrs. Merritt. If such disposition had been made it would have been error. There is no occasion for sequestration or postponement of distribution. The gifts of the stock to both the legatees stand on the same footing. Both were specific, both were accelerated in possession by the widow’s election not to take under the will and neither has any claim to precedence over the other. But the testator had 197 shares, of which he gave eighty to Clatty and 117 to Mrs. Merritt. By the widow’s election there were only 1S1J shares left for both legatees and as'they stand on the same footing they must abate together, each getting his proportion of 1S1|-instead of his proportion of 197 shares. But it is not clear that the court has made any disposition, but rather has merely postponed that question until the period of distribution and ordered the stock to be held in the meanwhile. There appears to be no final decree on that subject and the fourth and fifth assignments of error are therefore overruled without prejudice to appellant’s right to raise them hereafter at the proper time, should it be necessary. As to the other assignments the decree is affirmed.