WILLS. abate rateably and in proportion with each other, so as to make No. XXIII. up such deficiency, without any prejudice to the other legacies. hereby given, and which I hereby declare shall be entitled to bequeathing priority in payment. (c) Will, Sums of Money to be invested in Stock for Charitable Purposes. abate proportionably, so as not to prejudice the preceding bequests. Abatement of legacies. Priority in (c) In case the assets are sufficient to pay the debts and specific legacies, but not the general legacies, the latter will be subject to abatement in equal proportions, and the executor cannot, as in the case of debts, show any preference to any one legatee over another, or even give himself a preference with regard to his own legacy, but all must abate equally: (Toll. Exors. 347; Wms. Exors. 972, 2nd edit.) But a specific legatee does not abate in proportion with the other legatees (Brown v. Allen, 1 Vern. 31); still, it seems that if a testator were to bequeath specific legacies, and also general pecuniary legacies, and to direct that such pecuniary legacies should come out of all his personal estate, or words tantamount, then, if there should turn out to be no other personal estate than the specific legacies, they would be construed to have been intended to be subject to those which are pecuniary; otherwise the bequest to the pecuniary legatees would be nugatory: (Sayer v. Sayer, Pre. Cha. 393; Wms. Exors. 972, 973, 3nd edit. But a residuary legatee has no call upon particular general legatees for an abatement (Fonnereau v. Poyntz, 1 Bro. C. C. 487; 1 Rop. Leg. 355, 2rd edit.); his only claim being upon the surplus after all such legacies shall have been discharged. The circumstance of some of the legacies having a priority in time of payment time of payment will have no effect upon the rule as to all abating equally where the assets are will not prevent deficient, for the court has disclaimed laying weight on particular words, as the legacies from abating. Rule as to volunteers. imprimis, or in the first place, or a direction as to the time of payment (Lewis v. Lewis, 2 Ves. 415), as that one legacy shall be paid in three months, another in .six, and another in twelve months: in case of a deficiency of all assets, all must abate in equal proportions (Blower v. Morret, 4 Ves. 421); for such directions mark only the order in which it occurred to the testator to name the objects of his bounty, and affords no evidence whatever that when the time of payment arrives all are not to be paid equally, and are therefore perfectly consistent with the presumed intention that all shall be equally paid in their order: (Johnson v. Child, 4 Hare, 87.) The rule with respect to abatement holds only as between volunteers, for if abatement holds there be any valuable consideration for the testamentary gift, as where a general only as between legacy is given in consideration of a debt owing to the legatee, or of the relinquishment of a right, claim, or interest upon the testator's estate, as a right of dower, for instance (Davenhill v. Fletcher, Ambl. 444), such legatee will be entitled to a preference of payment over the general legacies, which are mere bounties (Tr. Eq., B. 4, pt. 1, ch. 2, s. 2; Wms. Exors. 976, 2nd edit.); and this advantage extends to the entire legacy, although it should exceed the value of the right or interest relinquished by the legatee: (Davenhill v. Fletcher, sup.) But it is requisite that the right relinquished should be an actual subsisting right at the time of the testator's death; and such as might be enforced against him; therefore, where a testator bequeathed to certain creditors who had accepted of him a composition of ten shillings in the pound, sums equal to the residue of their debts, it was held that the sense of moral obligation which had induced this act, did not confer on the legatees any superiority of claim over the other legatees: (Coppin v. Coppin, 2 P. Wms. 292.) As between volunteers, the particular object for which a legacy is given will afford no ground for its not abating equally with the rest upon a deficiency of assets. Thus, legacies to executors for their care and trouble (Heron v. Heron, 2 Atk. 121), or to friends for the purchase of mourning rings (Apreece v. Apreece, 1 Ves. & Bea. 364), or to servants (Wms. Exors. 978, 2nd edit.), or to charities (Bishop of Peterborough v. Mortlock, 1 Bro. C. C. 566), are not to be preferred to any other legacies; neither is the wife or child of a testator in any WILLS. 10. PROVIDED ALSO, that in case after payment and satisfaction all my said charitable bequests, any overplus of my said personal No. XXIII. ate shall remain, THEN and in such case, I GIVE AND BEEATH all such residue of my said personal estate unto ecutors), (d) whom I hereby appoint joint executors of this my Will, bequeathing Sums of Money to be invested in Stock for Charitable Purposes. executors. confer a payment. ter predicament than a mere stranger in respect of abatement: (Blower v. rrett, 2 Ves. sen. 420.) And an annuity chargeable on the personal estate is Residue, if any, eneral legacy, and must abate with the rest of the general legatees: (Hume to executors, Edwards, 3 Atk. 693.) and appointBut, notwithstanding any directions by a testator with respect to priority in the ment of e of payment of legacies, it will be insufficient to prevent such legacies from ting proportionally with other general legacies upon a deficiency of assets, a As to power for ator may, nevertheless, if he uses such expressions as leave no doubt as to his testator to ent, give one general legatee a preference over another, as well in amount as he time of payment: (Lewin v. Lewin, sup.) As, for example, in the case of priority of rsh v. Evans (1 P. Wms. 668), where a testator gave legacies to his two sons I his daughters, with a proviso that if the assets should fall short for the satistion of those legacies, his daughter should, notwithstanding, be paid her full acy, and the abatement be borne proportionally by the legacies of the son only. 3ut to confer this priority, the terms of the will must be clear and unequivocal; To confer a , if the expressions are ambiguous, and do not mark with certainty the priority, the tator's intent, no such priority will be allowed. Hence, it is not sufficient terms of the t a testator gives a direction as to a general legacy to his wife, that it shall will must be paid immediately after his death, out of the first moneys that shall be received clear and unequivocal. his executors (Blower v. Morrett, 2 Ves. sen. 240); this direction will give priority over the other general legatees. And where a testator gave his sonal estate to executors in the first place to pay debts, funeral and testantary expenses and legacies, and in the next place, three legacies to B., C., d D., with legal interest for three months after his death; and afterwards to se and set apart three sums of money to be applied as therein mentioned, on a question of abatement, the court declared, upon the principle before ted, that none of the legacies were entitled to priority of payment, and, erefore, that all of them must abate proportionally: (Beeston v. Booth, Madd. 161; Rop. Leg. 369, 3rd edit.) But where legacies are charged upon or made payable out of any specified As to legacies nd, then, although the legatees must abate amongst each other in case the made payable ad should prove insufficient to pay them in full, they will in no wise be com- out of a lled to abate with the general legatees; and in this, as in the preceding cases, specified fund. e testator's intent is the principle by which the court is guided; for it is ferred, that a testator, in referring to the specific parts of his estate for payent of particular legacies, intended those legacies a preference to others he had t so secured: (Acton v. Acton, 1 Mer. 178; 1 Rop. Leg. 316, 3rd. edit. : ms. Exors. 980, 2nd edit.) With respect to specific legatees, although they cannot be called upon to As to specific ate as long as any assets not specifically bequeathed remain unappropriated legacies. the payment of debts, still, if the general assets prove insufficient for that rpose, they must abate in proportion to the value of their individual legacies lerne v. Edwards, 3 Atk. 693; 2 Fonbl. Eq. 377; 1 Rop. Leg. 213, 3rd edit.; ms. Exors. 980, 981, 2nd edit.); for though not liable to abate with general gatees, still, where the general assets prove deficient, specific legatees are liable abate amongst each other (Roberts v. Pocock, 4 Ves. 160); otherwise, some e or more of the specific legatees might be called upon to contribute more than just proportion, and thus confer an unfair preference upon the others, all of hom are equally bound to sustain their portions of the charge. Practical (d) In order that an executor may be entitled to the residue, it is necessary, observations. WILLS. will, for their sole and absolute use and benefit. [ADD power to No. XXIII. give receipts, ut ante, No. VIII., clause 6, p. 664.] Will, bequeathing Sums of Money to be invested in Stock for Charitable Purposes. Stat. 11 Geo. 4 After 1st September, 1830, 11. PROVIDED ALWAYS, that whenever the said trustees hereby appointed, or any trustees to be appointed as hereinafter mentioned, shall, by death or any other cause whatever, be reduced to the number of three, or any lesser number, THEN and in such case, the trustees or trustee of this my will for the time being, or the executors or administrators of the last-acting trustee or surviving trustee thereof, shall, by writing under their hands and seals, or hand and seal, appoint some other fit persons as trustees in the place of such trustees so deceased, or ceasing to act as such as aforesaid, so and in such manner as shall make in the whole the number of six trustees; which said newly-appointed trustees shall, immediately upon being so appointed, become and be joint trustees with the said surviving or continuing trustees, and have the same powers either that it should be expressly bequeathed to him, or that the will should contain some expressions by which such intent may reasonably be inferred. Formerly, the law was otherwise; and, as the whole personal estate vested in an executor by virtue of his office, it was considered that the surplus which remained after payment of funeral and testamentary expenses, debts, and legacies, he was entitled to retain as his own absolute property. But by the statute 11 Geo. 4 and 1 Will. 4, c. 40, unless it shall appear by the will that the executors were intended to take the residue beneficially then, they will now take it merely as trustees for the next-of-kin. All the questions, which proved such an ample source of litigation, were set at rest by the statute 11 Geo. 4 & 1 Will. 4, c. 40, which after reciting that "testators by their wills frequently appoint executors, without making any express disposition of the residue of their personal estate, and whereas executors so appointed become by law entitled to the whole residue of such personal estate; and Courts of Equity have so far followed the law as to hold such executors to be entitled to retain such residue for their own use, unless it appears to have been their testator's intention to exclude them from the beneficial interest therein, in which case they are held to be trustees for the person or persons (if any) who would be entitled to such estate under the Statute of Distributions, if the testator has died intestate: and whereas it is desirable that the law should be extended in that respect," proceeds to enact, "that when any person shall die after the first day of September next after the passing of this act, having by his or her will, or codicil or codicils thereto, appointed any person or persons to be his or her executor or executors, such executor or executors shall be deemed by Courts of Equity to be a trustee for the person or persons (if any) who would be entitled to the estate under the Statute of Distributions, in respect of any residue not directed by will. expressly disposed of, unless it shall appear by the will, or any codicil thereto, the person or persons so appointed executor or executors was or were intended to take such residue benefically." executors to be deemed to be trustees for persons entitled to any residue, under the Statute of Distributions, unless otherwise Not to affect rights of executors when there is not any person entitled to the residue. And by the second section it is further provided and enacted, "That nothing herein contained shall affect or prejudice any right to which any executor, if this act had not been passed, would have been entitled, in cases where there is not any person who would be entitled to the testator's estate under the Statute of Distributions, in respect of residue not expressly disposed of." and authorities to all intents and purposes as if they had been originally appointed trustees by this my will. And no trustees hereby appointed or to be appointed as aforesaid shall be responsible for the acts, deeds or defaults of any co-trustee or co-trustees, nor for moneys received in which they shall join only for conformity; nor be accountable for the insufficiency of any banker, broker, attorney, solicitor, or other person whomsoever with whom any of the said trust moneys may be deposited for safe custody, or otherwise; or who may receive the same in the course of the execution of the aforesaid trusts; nor for any other loss or damage that may happen to all or any part of the said trust moneys and premises, unless through the wilful default of such trustees respectively. AND that every present and future trustees or trustee shall or may, out of the trust moneys which shall come to their respective hands, reimburse themselves and each other all such costs, charges and expenses as they shall respectively have sustained, disbursed, or been put unto, in or about the execution of the aforesaid trusts or in relation thereto. [ADD clause of revocation, ut ante, No. I., clause 13, p. 640.] IN WITNESS, &c. WILLS. No. XXIII. Will, bequeathing Sums of Money to be invested for Charitable in Stock Purposes. No. XXIV. WILL, CONTAINING BEQUESTS TO SEVERAL CHARITIES Charge of pecuniary legacies on the real in aid of the personal estate. [COMMENCE will, ut ante, No. I., clause 1, p. 632. INSERT ALSO bequest of pecuniary legacies, ut ante, No. XV., clause 2, et seq., p. 705.] 1. AND I HEREBY CHARGE all my real estates with the payment of all the aforesaid legacies in aid of my personal estate. |