the will, is governed as to the time of payment by the directions in the will.s

The above rule is established for the purpose of carrying into effect the intention of the testator, and is employed for that purpose in connection with the other rules of construction. Unless it appears from the language used in the codicil, or from the application of the recognized rules of construction with reference to wills, that the testator intended by the codicil to make a substantive and independent gift, the rule is to be applied. The limitations and conditions which the testator causes to attach to the original bequest are presumed to be intended by him to follow it, irrespective of any change in amount or of the person to whom it is given." It is, however, prima facie only, and is not to be applied to a case in which the court is convinced, on examination of the whole will, including codicil, that its application would not affect but would thwart the testator's intention. In such case the rule must yield to the intention, not the intention to the rule."

3 Whelen's Estate, 175 Pa. St. 23, 34 Atl. 329.

4 Estate of Laveaga, 119 Cal. 651, 51 Pac. 1074; Carpenter's Estate, in re, 166 Iowa 48, 147 N. W. 175; Pike v. Walley, 15 Gray (Mass.) 345.

5 Estate of Laveaga, 119 Cal. 651, 51 Pac. 1074.

6 The term "foregoing legacy" used in the residuary clause of a will was held to refer to the legacies in the previous part of the will, and not to include additional legacies to some of the same legatees made by codicil. - Sias v. Chase, 207 Mass. 372, 93 N. E. 802.

A testator by his will gave each of his children $7000, to be paid to each child upon attaining the age of twenty-one, with interest on such sums to be paid each child, interest to commence at the time of the first payment. Later, by codicil, he gave each child "in addition to the amount already given by said will," the extra sum of $3000, to be paid to each when the youngest should be twelve years of age. It was held the legacies given by the codicils did not bear interest.-Pike v. Walley, 15 Gray (Mass.) 345.

CHAPTER XXV.

ABATEMENT OF LEGACIES.

§ 690. Abatement defined: Order in which legacies abate.

§ 691. Effect of testamentary directions.

§ 692. Residuary legacies, abatement of.

§ 693. General legacies, abatement of.

§ 694. Annuities, abatement of.

§ 695. Specific legacies and devises, abatement of.

§ 696. Demonstrative legacies, abatement of.

§ 697. Legacies given for a valuable consideration.

§698. Legacy to widow in lieu of dower.

§ 699. The same subject: The will may provide that such legacies abate.

§700. Legacy or devise in exercise of a power of appointment. § 701. Additional legacies given by codicil.

§ 702. Order in which legacies are stated is immaterial.

§ 703. Time of payment generally immaterial.

§ 704. Relationship of legatee to testator generally immaterial.

§ 705. Devastavit by executor.

§ 706. To make up share of a pretermitted heir.

§ 707. Burden of proof.

§ 690. Abatement Defined: Order in Which Legacies Abate.

Abatement is the reduction of a legacy occasioned by reason of the insufficiency of the assets of the estate of the testator to pay his debts and the legacies given by his will.1

A legacy adeemed by delivery of the property to the legatee during the lifetime of the testator, is not subject

1 Bouvier Law Dict., subj. Abatement; In re Neistrath's Estate, 66 Cal. 330, 5 Pac. 507.

Abatement has also been defined as the obligation of specific legatees to part with the whole

to abatement. It does not pass under the will, but stands upon the footing of a gift during life.2

The order in which legacies abate may be controlled by direction of the testator expressed in his will, and is sometimes governed by statute; otherwise the general rule is that residuary legacies first abate, then general, then specific and demonstrative. Where residuary legacies or devises are held to be specific, then they abate with specific legacies. And demonstrative legacies may become general upon a failure of the fund out of which they were to be paid, and abate accordingly. Where gifts belong to the same class and nothing to the contrary appears in the will, they are entitled to no preference, as among themselves, but abate proportionately.* Each class must be exhausted in the order of preference before resort is had to the next class.

§ 691. Effect of Testamentary Directions.

In the absence of clear proof to the contrary, the testator must be deemed to have acted on the belief that his estate would be sufficient to answer the purposes to which it is devoted. If the chances of deficiency are anticipated and provided for by the terms of the will, then the directions of the testator must govern, and the loss must be

or a portion of their legacies, although the subjects devised to them remained and were not adeemed at the testator's death.Roper on Legacies, p. 356.

In many states the order in which legacies abate is regulated by statute.-Cal. Civ. Code, §§ 13591362; Atwood v. Frost, 59 Mich. 409, 26 N. W. 655; In re Spencer, 16 R. I. 25, 12 Atl. 124.

2 Clayton v. Akin, 38 Ga. 320, 95 Am. Dec. 393.

3 Jackson v. Pease, L. R. 19 Eq. 96; Clark v. Clark, 34 L. J. Ch. 477; Lancefield v. Iggulden, L. R. 10 Ch. 136.

4 Matter of Dougherty, 64 Misc. Rep. (N. Y.) 230, 118 N. Y. Supp. 1081.

borne by those designated by the testator to bear such loss. Thus, where the testator expressly directs that in case his estate shall prove insufficient to pay all legacies, then all shall abate pro rata, such directions must prevail; and where he provides that the legacies shall not abate equally, but some shall have preference over others, such directions must be followed."

A testator may, by special directions in his will, exempt any legacy from abatement although other legacies suffer added loss thereby; yet in the absence of a showing that such was intended by the testator, there arises the presumption of intended equality among legacies of a class. Where the testator simply directs that several pecuniary legacies shall be paid out of his estate, the presumption is that he intended all legacies to be paid equally. This presumption of equality will not be overcome by any ambiguous expressions in the will, but must prevail in the absence of unequivocal evidence of the testator's intention to give a preference."

§ 692. Residuary Legacies, Abatement Of.

Where there exists an insufficiency of assets to pay the debts and expenses of the estate and the legacies given by

5 Emery v. Batchelder, 78 Me. 233, 3 Atl. 733; Addition v. Smith, 83 Me. 551, 22 Atl. 470; Towle v. Swasey, 106 Mass. 100.

6 Bancroft v. Bancroft, 104 Mass. 226.

7 Shethar v. Sherman, 65 How. Pr. (N. Y.) 9.

8 Pennsylvania University's Appeal, 97 Pa. St. 187.

A provision in a will that all legacies shall abate before a desig

nated legacy, protects the latter from abatement, but does not affect the usual order of abatement as to the other legacies, general legacies first and then specific.-Heath v. McLaughlin, 115 N. C. 398, 20 S. E. 519.

9 Emery v. Batchelder, 78 Me. 233, 3 Atl. 733; Addition v. Smith. 83 Me. 551, 22 Atl. 470; Shepherd v. Guernsey, 9 Paige Ch. (N. Y.) 357.

will, and there is nothing in the will to indicate that one legacy shall be paid before another, a residuary legacy will abate, not only before specific and demonstrative legacies, but also before general legacies. A residuary legatee takes only what remains after the debts and expenses and other legacies have been satisfied; and if the residue be exhausted, he can not call upon the other legatees to contribute to his loss.10 This rule proceeds upon the principle that until both debts and legacies are satisfied, there is no residue.11 The reason for subjecting a residuary legacy to the payment of debts in the first instance is that 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. And where there is

10 Fonnereau v. Poyntz, 1 Bro. C. C. 472; Croly v. Weld, 3 De Gex, M. & G. 993; Purse v. Snaplin, 1 Atk. 415; Page v. Leapingwell, 18 Ves. Jun. 463; Baker v. Farmer, L. R. 3 Ch. 537, 16 W. R. 923; In re Bawden, (1894) 1 Ch. 693; Lewis v. Sedgwick, 223 Ill. 213, 79 N. E. 14; In re Newcomb's Will, 98 Iowa 175, 67 N. W. 587; Louisville Presb. Theol. Seminary v. Fidelity Trust etc. Co., 113 Ky. 336, 68 S. W. 427; Porter v. Howe, 173 Mass. 521, 54 N. E. 255; Langstroth v. Golding, 41 N. J. Eq. 49, 3 Atl. 151; Thompson v. Thompson, 3 Demarest (N. Y.) 409; Matter of Title Guarantee & Trust Co., 195 N. Y. 339, 88 N. E. 375, reversing 127 App. Div. 118, 111 N. Y. Supp. 169; Alsop v. Bowers, 76 N. C. 168; Strohm's Appeal, 23 Pa. St. 351; In re Martin, Peti

tioner, 25 R. I. 1, 54 Atl. 589; Lynch v. Spicer, 53 W. Va. 426, 44 S. E. 255.

The will provided a fund, the income of which was to be paid to a named person for life, and upon his death to go to the residuary legatees, naming them, as a part of the residuum under the residuary clause. The estate being insufficient and the general legacies having abated, including the legacy of the fund, that legacy upon the death of the life tenant goes to make up the other general legacies until they have been paid in full before the residuary legatees get any part of it.-Louisville P. T. Seminary v. Fidelity Trust & S. V. Co., 113 Ky. 336, 68 S. W. 427.

11 Warren v. Morris, 4 Del. Ch. 289.