258; Davenhill v. Fletcher, Amb. 244; Simmons v. Vallance, 4 Bro. C. C. 345, 349; Clayton v. Akin, 38 Ga. 320, 95 Am. Dec. 393; Buchanan v. Pue, 6 Gill (Md.) 112; Towle v. Swasey, 106 Mass. 100; McLean v. Robertson, 126 Mass. 537; Ellis v. Aldrich, 70 N. H. 219, 47 Atl. 95; Duncan v. Township of Franklin, 43 N. J. Eq. 143, 10 Atl. 546; Dey v. Dey's Admr., 4 Green C. E. (19 N. J. Eq.) 137; In re Knecht's Appeal, 71 Pa. St. 333; In re Gassman's Estate, 14 Phila. (Pa.) 308; Brown v. Brown, 79 Va. 648. Where a legacy was given to one with whom the testator had a current account upon condition of his executing a release of all demands against the estate, and it did not appear whether any debt was due him, it was held that he could not be regarded as standing in the light of a purchaser of his legacy until it was made to appear that some debt was due him.Davies v. Bush, 1 Younge 341. "So legacies given to those creditors with whom compromises had been made, at less than the full amount of their claims, are not regarded as upon consideration." -Coppin v. Coppin, 2 P. Wms. 291. The debt must exist at the testator's death, but the fact that it is unenforceable because of the Statute of Limitations is immaterial. But a legacy from a mere sense of moral obligation is not given for a valuable consideration. -Matthews v. Targarona, 104 Md. 442, 10 Ann. Cas. 153, 65 Atl. 60; Duncan v. Township of Franklin, 43 N. J. Eq. 143, 10 Atl. 546. The expression, "for his services in assisting me at different times," does not in itself import an indebtedness for which payment may be exacted, for the services may have been rendered gratuitously and the legacy given in grateful recognition thereof.Duncan v. Township of Franklin, 43 N. J. Eq. 143, 10 Atl. 546. Where the will provided that the beneficiary "shall continue to live as housekeeper with" the husband of testatrix, and she did so until his death, the beneficiary can not be regarded as a volunteer. After full performance on her part she has the right to demand payment in full, and it is immaterial that her wages have been fully paid by the husband.-Estate of Gassman, 14 Phila. (Pa.) 308. Where the legatee for many years prior to the testator's death had rendered services as housekeeper and nurse, for which she had received no fixed compensation, and for which the testator had agreed to provide by his will, and a legacy was made "to be in full payment and discharge of claims of every kind she may have against my estate," and she had never presented any claim, but had elected to accept this provision of the will, she will be enti tled to be paid her legacy in full.Reynolds v. Reynolds, 27 R. I. 520, 63 Atl. 804. The testator must have been indebted to the legatee at the time of a friend,27 legacies to an executor as a reward for services, but not in lieu of commissions,28 or legacies for a specific purpose such as the purchase of mourning rings, 29 or to servants or to charity,30 have no preeminence over other general legacies in regard to abatement. § 698. Legacy to Widow in Lieu of Dower. A legacy given by the testator to his wife in lieu of her dower rights, if accepted, is a legacy for a valuable consideration. A widow who relinquishes her dower and accepts, in the place thereof, a legacy or devise in her favor, is regarded as a purchaser and not as a volunteer, and devises and legacies to others will first abate to pay the debts of the estate.31 The rule applies even of the making of the will, and the legatee must forego his debt for the legacy.-Heyes v. Moerlein, (Tex. Civ.) 94 S. W. 446; affirmed, 100 Tex. 245, 97 S. W. 1040. 27 Shirt v. Westby, 16 Ves. Jun. 393. 28 Attorney-General v. Robins, 2 P. Wms. 23; Read v. Strangways, 14 Beav. 139; Duncan v. Watts, 16 Beav. 204; Heron v. Heron, 2 Atk. 171; Fretwell v. Stacy, 2 Vern. 434; Waters v. Collins, 3 Demarest (N. Y.) 374. Compare: In re Harper's Appeal, 111 Pa. St. 243, 247, 2 Atl. 861. 29 Apreece v. Apreece, 1 Ves. & B. 364. Where the assets are insufficient to pay the general legacies in full, a legacy in trust for the care of a cemetery lot will be abated in common with other general legacies.-Ellis v. Aldrich, 70 N. H. 219, 47 Atl. 95. 30 Attorney-General v. Robins, 2 P. Wms. 23. 31 Heath v. Dendy, 1 Russ. 543; Davenhill v. Fletcher, Amb. 244; Maybury v. Grady, 67 Ala. 147; Lord v. Lord, 23 Conn. 327; Security Co. v. Bryant, 52 Conn. 311, 52 Am. Rep. 599; Warren v Morris, 4 Del. Ch. 289; Clayton v. Aikin, 38 Ga. 320, 95 Am. Dec. 393; Corrigan v. Reid, 40 Ill. App. 404; Addition v. Smith, 83 Me. 551, 22 Atl. 470; Hubbard v. Hubbard, 47 Mass. (6 Metc.) 50; Pope v. Pope, 209 Mass. 432, 95 N. E. 864; Matter of Gotzian, 34 Minn. 159, 57 Am. Rep. 43, 24 N. W. 920; Ellis v. Aldrich, 70 N. H. 219, 47 Atl. 95; Plum v. Smith, 70 N. J. Eq. 602, 62 Atl. 763; In re Dolan, 4 Redf. though the value of the legacy greatly exceeds that of the dower rights which are waived. 32 The transaction has the force of a contract between the testator and his widow; consequently on a deficiency of assets to pay the debts of the estate, her legacy in lieu of dower is only liable for such deficiency as may remain after the other assets have been exhausted.33 Where the will does not provide in terms that a legacy or devise to the wife of the testator is in lieu of dower, yet where there is a statutory regulation that "every devise or bequest by the husband or wife to the other shall be holden to be in lieu of the rights which either has (N. Y.) 511; Williamson v. Williamson, 6 Paige Ch. (N. Y.) 298; Dunning V. Dunning, 82 Hun (N. Y.) 462, 31 N. Y. Supp. 719; Matter of McKay, 5 Misc. Rep. (N. Y.) 123, 25 N. Y. Supp. 725; In re Kirk's Estate, 13 Phila. (Pa.) 276; Potter v. Brown, 11 R. I. 232; Boykin v. Boykin, 21 S. C. 513; Brown v. Brown, 79 Va. 648. "It overtops all legacies, specific as well as general. It is a right superior even to the claims of creditors, and when she accepts the offer of exchange, tendered her in the will, and gives up her dower, she pays a valuable consideration for the portion which she accepts.". Clayton v. Aikin, 38 Ga. 220, 95 Am. Dec. 393. A legacy given in lieu of dower will not abate if at the time of the making of the will the wife had an inchoate right to any dower out of the testator's estate. -Plum v. Smith, 70 N. J. Eq. 602, 62 Atl. 763. 32 Davenhill v. Fletcher, Amb. 244; Warren v. Morris, 4 Del. Ch. 289; Ellis v. Aldrich, 70 N. H. 219, 47 Atl. 95; Brown v. Brown, 79 Va. 648. "A general legacy to a widow in lieu of dower, accepted by her, stands upon a different footing from other general legacies merely voluntary. It will be enti tled in payment of it to a preference over such general legacies, even when the amount of the bequest exceeds the value of her dower, for in this matter the testator is the only and best judge of the price at which he purchased it." The widow is "a favored purchaser for a fair consideration."Durham v. Rhodes, 23 Md. 233, 242, quoted with approval in Matthews v. Targarona, 104 Md. 442, 10 Ann. Cas. 153, 65 Atl. 60. 33 Warren v. Morris, 4 Del. Ch. 289. by law in the estate of the other, unless it shall appear by the will that such was not the intention," and it clearly appears that the devise or legacy was not intended to be in addition to the widow's right of dower, the statute may be read into the will. The widow may then elect to take under the will, or may claim such rights as the law gives her. If she accepts the legacy or devise, she is as much a purchaser as though the statutory provisions had been set forth at length in the testament.3 $699. The Same Subject: The Will May Provide That Such Legacies Abate. A testator may charge a legacy or devise in lieu of dower with the payment of his debts, and if the widow accepts, the legacy or devise is subject to abatement. The intention to so charge the gift may be implied.35 Thus, if the testator expressly directs that all legacies shall abate ratably in case of an insufficiency of assets, and the widow elects to accept a legacy under the will in lieu of dower, such legacy has no preference over others of the same class.3 36 §700. Legacy or Devise in Exercise of a Power of Appointment. A legacy or devise made of the corpus of property under a power of appointment exercised by will, is con 34 Ellis v. Aldrich, 70 N. H. 219, 47 Atl. 95. Where a wife accepts a provision in her husband's will as a substitute for her dower, or where the widow loses her dower by not waiving the provisions of the will, even though the will does not specifically provide that the gift is in lieu of dower, the widow is en titled to the whole of the sum given by the will in preference to other legatees.-Pope v. Pope, 209 Mass. 432, 95 N. E. 864. 35 Warren v. Morris, 4 Del. Ch. 289. 36 Tickel v. Quinn, 1 Demarest (N. Y.) 425; In re Kline's Appeal, 117 Pa, St. 139, 148, 11 Atl. 866. 38 sidered as coming from the donor of the power, the testament of the donee of the power being merely an instrumentality whereby the beneficiary is designated. The common law rule is that if the donee of a power of appointment execute it by will in favor of a volunteer, and there are insufficient assets in his estate to pay his debts, the property appointed is subject to the claims of creditors.3 Although this is questioned, yet property over which a testator has exercised a power of appointment should not be subjected to the payments of his debts until his own property has been first exhausted.39 If the power be executed for a valuable consideration, the creditors of the testator can not reach the property. If the appointment is made in favor of several and the property is insufficient to satisfy the gifts, they abate proportionally;11 and if some are specific and the remainder residuary, the latter abate first.12 40 § 701. Additional Legacies Given by Codicil. Additional legacies given by a codicil, in the absence of anything in the codicil indicating a contrary intent, are subject to the same conditions as the original legacies 37 See § 280. 38 Thompson v. Towne, 2 Vern. 319; In re Harvey (Godfrey v. Harben), 13 Ch. Div. 216; Williams v. Lomas, 16 Beav. 1; In re Hodgson, (1899) 1 Ch. 666; Brandies v. Cochrane, 112 U. S. 344, 28 L. Ed. 760, 5 Sup. Ct. 194; Clapp v. Ingraham, 126 Mass. 200; Johnson v. Cushing, 15 N. H. 298, 41 Am. Dec. 694; Tallmadge v. Sill, 21 Barb. (N. Y.) 34, 51. Contra: Cutting v. Cutting, 86 N. Y. 522; Commonwealth v. Duffield, 12 Pa. St. 277. See, also, Wales v. Bowdish, 61 Vt. 23, 4 39 White v. Massachusetts Inst. of Technology, 171 Mass. 84, 50 N. E. 512. See, also, Patterson v. Lawrence, 83 Ga. 703, 7 L. R. A. 143, 10 S. E. 355. 40 Hart v. Middlehurst, 3 Atk. 371, 377; Patterson v. Lawrence, 83 Ga. 703, 7 L. R. A. 143, 10 S. E. 355. 41 Eales v. Drake, 1 Ch. Div. 217; De Lisle v. Hodges, 43 L. J. Ch. 385. 42 In re Currie, 57 L. J. Ch. 743. |