given by the will,48 and will abate pro rata with them whenever there is any deficiency of assets. This is especially true where in the codicil the testator directs that "all the other legacies hereinbefore given by me shall abate in proportion."'45

§ 702. Order in Which Legacies Are Stated Is Immaterial.

The order in which the various legacies appear in the will, being designated as "first," "second," and the like, does not evidence any design on the part of the testator that the legacies shall be satisfied in full in the order set forth in the will. Such designating words refer merely to the successive order in which the bequests are made, and do not import an intention to prefer one legacy over another.46

§ 703. Time of Payment Generally Immaterial.

Pecuniary legacies, as a general rule, abate proportionally notwithstanding any direction in the will as to the time of payment. In other words, though the payment of a legacy is deferred to a future date, it ranks equally with other legacies which are directed to be immediately paid, and neither are entitled to priority. A testator,

43 Matter of Frankenheimer (In re Gans' Will), 130 App. Div. (N. Y.) 454, 114 N. Y. Supp. 975; affirmed in 195 N. Y. 346, 133 Am. St. Rep. 803, 88 N. E. 374. See § 689.

44 Washburn v. Sewall, 4 Metc. (45 Mass.) 63; Pond v. Allen, 15 R. I. 171, 2 Atl. 302; Gallego's Exrs. v. Attorney-General, 3 Leigh (Va.) 450, 24 Am. Dec. 650.

45 Moore's Exr. v. Moore, 50 N. J. Eq. 554, 25 Atl. 403.

47

46 In re Hardy (Wells v. Borwick), 17 Ch. Div. 798; Johnson v. Child, 4 Hare 87, 67 Eng. Repr. 572; Beeston v. Booth, 4 Madd. 161, 56 Eng. Repr. 667; Wells v. Borwick (In re Hardy), 50 L. J. Ch. 241; Everett v. Carr, 59 Me. 325; Matter of McKay, 5 Misc. Rep. (N. Y.) 123, 25 N. Y. Supp. 725.

47 Blower v. Morret, 2 Ves. Sr. 420; Inness v. Mitchell, 2 Phill. Ch. Cas. 346; Nickisson v. Cockill,

however, in designating the time and purpose of the payment, may evidence a preference. A legacy to his wife which is intended by the testator to be paid to her before the proceeds of his property should be invested (under direction of the will) for her use, will not abate in favor of legacies not payable until two years after the death of the widow.48

§ 704. Relationship of Legatee to Testator Generally Immaterial.

The mere fact that a legatee is closely bound to the testator by ties of blood or dependence, or the fact that the legacy is for a worthy cause, gives no right of preference. But by statute in some jurisdictions, legacies to strangers abate before those of the same class to kindred;50 and legacies for the support and maintenance

of a widow or minors closely related to the testator are preferred over legacies of the same class to strangers.51

§ 705. Devastavit by Executor.

Where, at the death of the testator, sufficient property comes into the hands of the executor to pay all debts, satisfy all legacies and devises and leave a residue, it has been held that if subsequent waste occurs by reason of mismanagement by the executor, so that the residue is diminished or exhausted, the residuary legatee can not call upon the others to contribute, but must bear the whole loss.52 The contrary, however, has been held, to the effect that such loss must be borne pro rata by all beneficiaries under the will.53 This, however, was denied even as between general and specific legatees, although both classes were equally innocent of wrong doing, and the rule first stated was adhered to.54

legacies of that class unless a different intention be expressed in the will.-Cal. Civ. Code, §§ 13601362.

51 In New York, legacies for the support and maintenance of a widow and children unprovided for elsewhere, and for the maintenance and education of minors closely related to the testator, although not his children, do not abate with general legacies.-Scofield v. Adams, 12 Hun (N. Y.) 366; Stewart V. Chambers, 2 Sandf. Ch. (N. Y.) 382, 393; Bliven V. Seymour, 88 N. Y. 469, 475.

52 Willmott v. Jenkins, 1 Beav. 401; Baker v. Farmer, L. R. 3 Ch. 537; Page v. Leapingwell, 18 Ves. Jun. 466.

Compare: Dyose v. Dyose, 1 P. Wms. 305, criticised in Fonnereau v. Poyntz, 1 Bro. C. C. 472, 477.

53 Henry v. Griffis, 89 Iowa 543, 56 N. W. 670.

54 Farmers' Loan & Trust Co. v. McCarthy, 128 App. Div. (N. Y.) 621, 113 N. Y. Supp. 207, overruling 56 Misc. Rep. 413, 107 N. Y. Supp. 928.

Where legacies have once been properly paid, it is said they can not be required thereafter to contribute to the general fund because of devastavit by the executor.-Farmers' Loan & Trust Co. v. McCarthy, 128 App. Div. (N. Y.) 621, 113 N. Y. Supp. 207.

§ 706. To Make Up Share of a Pretermitted Heir.

In most jurisdictions, by statute, pretermitted children, and after-born and posthumous children unmentioned or unprovided for by the testator in his will, take such part of the estate as if the testator had died intestate. If there be not sufficient estate undisposed of by will to satisfy such claims, all legacies and devises abate ratably to raise the necessary amount.55 The general rule is that all legacies and devises are charged ratably, the value of the interest of such omitted heir being fixed according to the value of the testator's estate at the time of his death after the payment of the debts and expenses."

§707. Burden of Proof.

The beneficiary who seeks preference and contends that a legacy in his favor should not abate ratably with others of the same class, has the burden of proof and he must show affirmatively that such was the intention of the testator. The reason for the rule is that the testator is presumed, in the absence of clear provisions to the contrary, to have considered his estate sufficient to pay all debts

55 In re Ross' Estate, 140 Cal. 282, 73 Pac. 976; In re Smith's Estate, 145 Cal. 118, 78 Pac. 369; Ward v. Ward, 120 Ill. 111, 11 N. E. 336; Bowen v. Hoxie, 137 Mass. 527, 530.

As to rights of pretermitted, after-born, and posthumous children, see §§ 630-632.

As to remedies of pretermitted heirs, see § 640.

The California statute, Civ. Code, § 1308, requires contribution from all legatees and devisees "unless the obvious intention of

the testator in relation to some specific devise or bequest, or other provision in the will, would thereby be defeated; in such case, such specific devise, legacy or provision, may be exempted from such apportionment, and a different apportionment, consistent with the intention of the testator, may be adopted."

56 In re Smith's Estate, 145 Cal. 118, 78 Pac. 369; Rockwell V. Geery, 4 Hun (N. Y.) 606; Sanford v. Sanford, 4 Hun (N. Y.) 753; Johnson v. Chapman, 54 N. C. 130.

and legacies, and therefore not to have thought it necessary to provide for a deficiency by giving a preference to any of those upon whom he bestows his bounty.57