being satisfied by the gift of a larger sum to the legatee seems confined to the case of parent and child for where 1007. was bequeathed to the executor in trust for A., and the executor (his great uncle) expended more than the interest of the legacy in maintaining and educating the legatee, and paid one hundred guineas with him as an apprentice fee, and left him also by his will 2007.; and the legatee upon his coming of age gave a power to B. to receive all legacies left to him, under which B. received the legacy of 2007.; and ten years afterwards A. claimed the legacy of 1007.: it was with great reluctance decreed to him by the Court." Legatees are not to be excluded, like creditors, by not claiming within the time limited by the advertisements published under a decree." It may be added also that a legatee has been held not to be barred by his having been subscribing witness to a receipt given on the payment of the legacy to another person. SECTION VII. Of Abatement and Refunding. I. It was once held, that if land was devised to trustees to be sold for payment of debts and legacies, that they should be paid pari passu, and the debts have no preference, unless the trustees were Lee v. Brown, 4 Ves. 362; and see Davison v. Goddard, Gilb, Eq. R. 65. Anon. 9 Pri. 210. • Holmes v.Custance, 12 Ves. 279. d Wolestoncroft v. Long, 1 Ch. Ca. 32. 3 Ch. Rep. 12. Gosling v. Dorney, 1 Ver. 482. Anon. 2 id. Herbert v. Herbert, 2 Freem. Powell's Ca. Nels. 202. 133. 270. also executors. But this doctrine, which it was said would be making a man sin in his grave, has been since exploded; and it is now the constant determination that creditors shall be preferred before legatees, when there is not sufficient for both." Yet a man may charge his legacies in such a way as to give them a preference over debts. Thus where a testator by his will directed his devisee to pay out of the premises devised the sum of 1000l. to trustees, to be by them applied as the residue of his personal estate was thereinafter directed, and gave them also a legacy in trust for A. payable out of the premises, and bequeathed the residue of his personal estate, after his debts, legacies, and funeral expenses were paid, to trustees in trust for his relations: the Lord Chancellor was of opinion that the 10007., and the legacy to A. must be applied according to the re spective bequests without being liable to the claim of the creditors.c d We have already seen that specific legatees are entitled to the things bequeathed them, notwithstanding there are no funds left for payment of the pecuniary legacies. Demonstrative legacies may also, it seems, have a similar priority. For where a man bequeathed as a portion to his daughter 12,000l., and to his niece 4000l., directing that the latter should be paid out of the money in his banker's hands; and left more than 40007. in the banker's Hixon v. Whitton v. Lloyd, 1 Ch. Ca. 275. Foly's Ca. 2 Freem. 49. Wytham, I Ch. Ca. 248. 305. Rep. T. Finch, 195. Anon. 2 Ver. 405. Greaves v. Powell, 2 Ver. 248. Walker v. Meager, 2 P.W. 550. Mos. 204. 2 Atk. 111. 12 Ves. 154. Maytin v. Hoper, Ridg. C, T. Hard. 206. Bradgate v. Ridlington, Mos. 56. Killet v. Ford, 1 Cox, 442. ■ Ante 16. e Vid. ante 21. hands, but the whole amount of his personal property was not sufficient to discharge both the legacies: that to the niece was decreed to be paid in full." But in general, if after payment of debts and satisfaction of specific bequests the estate is not suf ficient to pay the pecuniary legacies, they must abate proportionably among themselves; nor can an executor, as in the case of a creditor, pay a legatee who uses the greatest diligence, and gets a decree; for there is no priority in legacies. Hence where a man had compounded with his creditors for ten shillings in the pound, and afterwards acquired a considerable fortune, and by will bequeathed several legacies, and gave the residue of his personal property to his brother, who was thereout to pay what he owed to his creditors, who had been so kind as to compound with him it was held that the creditors having once. released their debts, which were thereby extinct, they could claim no preference over other legatees. If a testator says, "in the first place I give to A.,Thweaths & Fore then to B.," &c.; or "I give to A. payable at one-mont.wo month after my decease, to B. at six months," &c.; or bequeaths several legacies and directs one of them to be paid in the first place, or to be paid immediately after his decease out of the first money belonging to him that should be got in after his death,* these legacies must nevertheless abate in proportion with others for it must be presumed that a testator considers he has property sufficient to answer all his Acton v. Acton, 1 Mer. 178. Smallbone v. Brace, Rep. T. Finch, 303; and see 2 Ves. J. 640. 9. Ves. 152. Humphreys v. Humphreys, post. 378. Ashley v. Pocock, 3 Atk. 208. Contra, Touch. 475. Plow. 545. C Coppin v. Coppin, 2 P.W. 291. d Vintner v. Pix, 1 Ch. Rep. 133. Brown v. Allen, 1 Ver. 31. Beeston v. Booth, 4 Mad. 161. • Blower v. Morret, 2 Ves. 420. -ނ legacies, and that he has an intention that all should be equally paid; which presumption of equality is not to be repelled by ambiguous expressions, but must prevail, unless there be clear intent to the contrary. It was once laid down that an executor legatee might retain for his legacy, as he might for a debt, although there was nothing left to discharge the legacies given to others." But it has been since held that an executor must abate in proportion with the rest. In the civil law an exception was made in favour of legacies to charities: yet neither has this been adopted by our courts, which hold that charitable gifts must abate equally with others. Bequests to servants also are equally within the general rule. Annuities seem at first to have been considered Jones & Mitchell ...specific legacies, and not liable to abate; but in a Case where a testator gave A. 1407. out of his personal estate, to purchase her an annuity of 207. a year for her life: Sir J. Jekyll held it a pecuniary legacy, which must abate in proportion. Afterwards the Court considered, that the distinction was extremely nice between such a direction in the will, and a gift in the will of that annuity out of the personal estate; that in sense and reason it amounted to the same thing; and they held, therefore, that an annuity by will out of personal estate by way of direct devise or legacy should abate in proportion with pecuniary legacies.* Some legacies however may have a preference. 3 over others where the circumstances are such as to show clearly the intention of a testator in this respect. athely 12 Thus where a man bequeathed several legacies, andm at the latter end of his will added, that he apprehended there would be a considerable surplus of his personal estate beyond what he had given in legacies, for which reason he gave several further legacies; and afterwards gave several more legacies by a codicil; and there happened to be a great deficiency of the assets by the fall in value of South Sea Stock: it was decreed that the former legacies should have the preference, and the legacies given at the latter end of the will, and in the codicil, should be lost." And where a testator gave 20007. apiece to his two sons, and 20007. to his daughter, with a proviso, that if his assets should fall short for the payment of these, still the daughter should be paid her full legacy, and that the abatement should be borne proportionably out of the sons' legacies only; and the testator left sufficient assets, but they were wasted by the executor: it was ultimately held, contrary to the decree made at the Rolls, that the daughter should have her full portion, and the abatement be made only out of the sons' legacies. So some legacies may have a preference over others in consequence of the testator having directed a certain part of his property to be applied in payment of his debts before the rest. As where a woman, 2 Ves. 417. Hume v. Edwards, 3 Atk. 693. Rogers v. Millicent, 2 Diek. 570. C Att. Gen. v. Robins, 2 P.W. 23. Marsh v. Evans, 1 P.W. 668. |