1 Mills Surr. 130 | N.Y. Sur. Ct. | 1899
This is one of the undecided matters that was heard by Surrogate Arnold. The main question arises on exceptions to the findings of the referee which construe certain
After making several further bequests the testatrix makes a residuary clause, naming her daughters as her residuary legatees. It appears that the proceeds realized from the sale of decedent’s estate are entirely inadequate to fully pay the five legacies above recited, and the question at once arises as to whether the words I have quoted preclude the application of the doctrine of abatement as between these bequests. The learned referee holds that the direction given by the decedent effects a preference among the legacies, and that they must be paid in full in the order named until the available funds are exhausted. Upon mature consideration of this matter, I am forced to dissent from this conclusion. Among a group of general legacies which are mere bounties, priority will not be given to any of them unless the testator’s intention to create a preference is most clearly and unequivocally expressed, and the burden is strongly upon Mm who would brash away the maxim that equality is equity, and ask that one legatee should be fully satisfied to the loss and detriment of others equally as much and as deservedly entitled. Undoubtedly, in the event
executor is not at liberty to pay the first legatee named in the will in full, although the payment of that legacy was first directed.” I am of the opinion that the same rule must be here applied. Whether it be said that the words in question merely indicate a priority as to the time of payment, or that they may
Decreed accordingly.