In re Estate of Moulton

By the Court, McKinstry, J.:

If the order appealed from is proper in other respects, the executors cannot complain that there are other special bequests than that which the petitioner seeks to have applied to the payment "of his claim. If there are other legatees, the remedy of him whose bequest is applied to the claim is to seek contribution from the others. (Probate Act, Sec. 181.)

It appears that on petition of the executor, the real estate of the testatrix had been sold. This would only have been done when the personal estate was insufficient to pay the outstanding debts, etc. (Sec. 154.) It must be assumed that the residue of the personal estate had been applied to the payment of the debts, and that when the order appealed from was made, it was necessary to apply the proceeds of the articles specially bequeathed. (Sec. 151.) *

It is true that it appears that there was due to the estate from the estate of B. F. Moulton, deceased, as a family allowance, the sum of two thousand four hundred dollars; and that in the opinion of one of the executors, “there is every reason to believe that there is ample in said estate of B. F. Moulton to pay such family allowance.” But this was a matter to be decided by the opinion of the Probate Court, and that Court found, as a fact, that there was no available property to pay the expenses of the last sickness of the deceased, which included the claim of the. petitioners.

There is no copy of the will in the transcript. Special legacies are exempted from liability for the payment of debts, “if it shall appear to the Court necessary to carry into effect the intention of the testator, if there shall he other sufficient estate.” (Probate Act, Sec. 180.)

Supposing that there was other sufficient estate,, we can-: not assume error on the part of the Probate Court in adjudging that it was not necessary to exempt the property specially bequeathed in order “to carry into effect the. intention of the testator.”

Order affirmed.