#### Matter of the Judicial Settlement of the Account of Maria M. Carr, as Executrix, etc., of Maria M. Wadelton, Deceased.

(Surrogate’s Court, Kings County,

June, 1898.)

Legacies — Abatement, where other provision is made for legatees who are near relatives.

The rule that legacies, given by a testatrix to trustees for the support of her son and his wife and for the support and education of their three children, do. not, as gifts to persons standing in a near relation to the testatrix and more or less dependent upon her bounty, abate where . there are not assets sufficient"to pay all the general legacies given by her will, has no application where other clauses of the will make liberal provisions for the same beneficiaries by way of specific devises to or for them, where all the beneficiaries are of full age and where two of the ■ children in question are married and therefore presumably not dependent upon the fund for their support.

Judicial settlement of the accounts of an executrix.

Stitt *&*Phillips, for executrix.

Shepard *&*Prentiss, for contestants.

Patrick E. Callahan, special guardian, in person.

Abbott, S.

By her will, Maria M. Wadelton directed the payment of her debts and funeral expenses And that a suitable monument be erected over her grave.

*144The “ third ” paragraph of her will is as follows:

“ Third, I give to my Executors the sum of Ten Thousand Dollars, in trust, to invest the same and apply one-half the income therefrom during the life of my son Joseph M. Lee, to his support and the. support of his wife Harriet H. Lee, and to the support and education of their children, Harriet R., Sophia L-, and Mary E., and upon the death of my said son, I direct that Five thousand'Dollars, the.one-half of said sum of Ten thousand Dollars, be paid to and distributed equally among the said three children of my said son, provided that if at that time any of said children be under the age of twenty-one years, the share of such child shall not. be paid until she becomes twenty-one years of age, and in the meantime the income from such share shall be applied by my said Executors to the support and maintenance of such child.

. “And I direct- that my Executors shall apply the other half of the income arising from said Ten thousand Dollars, during the life of my said daughter-in-law, Harriet L. Lee, or (in case she survives my son) until her remarriage, whichever shall happen, to the support of herself and her said husband, and the support and education of their said three children, and upon the death or remarriage of my said daughter-in-law, whichever shall first happen, I direct my Executors to pay and distribute Five thousand Dollars, the remaining half of said Ten thousand Dollars, to and among said three children .of my said son, provided if at that time any of said children be under- age of twenty-one years, her share shall not be paid until her arrival at age; the income from such share to be applied in the meantime to her support and education the same as herein-before provided in relation to the share, in the other half of said Ten thousand Dollars.”

By the “ fourth ” paragraph of her will, she specifically devises to her executors in trust, her property on Flushing avenue, in Brooklyn, and directs her executors to apply the net income thereof “ to the support of my said daughter-in-law’s family, •namely herself, her husband and their said three children,” and upon the death or remarriage of her daughter-in-law, to sell the property “ and divide the proceeds thereof among said children Hattie R., Sophia L., and Mary E., equally, provided that if at that time any of such children be under twenty-one years of age, the share of such child shall be in the meantime invested, the in-' come applied to her support and the principal paid to her on arriving at age.”

*145By the “sixth” paragraph she makes a specific devise of Ho. 373 Hancock street, in the city of Brooklyn, to her granddaughter. Maria Martha Carr.

By the “ seventh ” paragraph she makes a specific devise of six lots in Cook county, Hlinois, and a specific bequest of certain mortgages held by her on property in Hlinois and Colorado', to her seven grandchildren. '

By the “ fifth ” paragraph she bequeaths to the Christian Woman’s Board of Foreign Missions, connected with the Church of the Disciples lof Christ of Hew York City, the sum of $1,000, which legacy ivas revoked by a codicil to the will, “ to Mary D. Maddren and Arthur Maddren, children of my stepdaughter Sarah L. Maddren, each the sum of Five hundred Dollars, to my beloved stepdaughter Sarah L. Maddren, wife of Richard Maddren, One thousand dollars, to George R. Kramer, minister of the Church of the Blessed Hope, in Cumberland street, Brooklyn, Three hundred Dollars, and to' my beloved niece Maria Walker, Wife of James Walker, One hundred Dollars.”

By the “ eighth ” paragraph she gives, devises and bequeaths her- residuary estate to her granddaughter Maria Martha Carr.

Objections have been filed to the account of the executrix because she has failed to charge herself with certain assets contained in Schedule “ B,” of her account, but which have not yet been realized in cash. The account contains a sufficient statement that such assets have come into her hands, and the law will charge her with the same.

The account shows a balance of cash in the hands of the executrix of $8,111.47, applicable to the legacies contained in the “ third ” and “ fifth ” paragraphs of the Avill, and “ Schedule B ” shows additional good assets in her hands amounting to about $6,000, although not yet collectible.

It thus appears upon the face of the account that the executrix ■has about $14,000 of personal assets with which to pay her commissions, the legacy of $10,000 under the “ third ” paragraph of the will and the legacies of $3,100 under the “ fifth ” paragraph of the will. The estate, therefore, upon the face of the account would seem to be sufficient to pay all general legacies in full, including those bequeathed by the “ third ” and “ fifth ” paragraphs of the will, so that all questions which have been raised upon the assumption that the estate is insufficient to pay in full all such legacies thus become immaterial.

*146But even assuming that the amount ultimately realized from the items contained in “ Schedule B,” of the account shall be less than the amount above stated, and the net personal assets in the hands of tliis executrix for distribution shall be inadequate to the payment in full of the legacies bequeathed by the “ third ” and “ fifth ” paragraphs of the will, I am of the opinion that the1 net personal assets after the payment of debts, funeral expenses, expenses of administration, monument, and specific legacies, must be apportioned between the legatees under the *“*third ” and “ fifth ” paragraphs, and that- the legacies bequeathed by each of these paragraphs must abate *pro rata.*

The rule under which the executrix claims that the legacy bequeathed under the “ third ” paragraph should be treated, as a preferred or specific legacy and paid in full before the other general, legacies are paid, has no application to .the facts of this case.

6 .The rule is stated by Mullin, P. J., in Petrie v. Petrie, 7 Lans. 90, at page 97, as follows:

“A legacy for education, like one for maintenance, must be paid in preference to the general legacies given by the will, if the assets are sufficient for the purpose.”

This is but a partial statement of the principle as established by English and American authorities, and lacks the important qualification, that the béneficiaries are not otherwise provided for.

In Scofield v. Adams, 12 Hun, 366, Boardman, J., at pages 369 and 370, more accurately states the principle involved in the following language:

*“*But there is another rule applicable to legacies, here invoked by the appellant, to-wit, that legacies for maintenance and support of those standing in near relation to the testator, and more or less dependent upon his bounty *and otherwise unprovided for*do not abate with general legacies.”

And again at page 370 :

“ He was *unprovided for,*save by this legacy, which was de- ■ blared to be ‘for his comfort and benefit.’ ”

•In the case at bar the essential qualification that the beneficiaries are “ otherwise unprovided for,” is entirely wanting.

The will itself makes other and liberal provision for the same beneficiaries by way of specific devises and bequests to them and for their benefit.

All of the beneficiaries are of full age. Two of the children, Harriet B. and Sophia B., are married and presumably not dependent upon this fund for their support and maintenance.

*147In Bliven v. Seymour, 88 N. Y. 469, Judge Finch, at page 475, says:

“And though a general legacy may sometimes have a preference over other general legacies in the same will, it is only in certain recognized cases. Where it is given for the support and maintenance of a near relative, *otherwise unprovided for*(Scofield v. Adams, 12 Hun, 370), or for the education of such relative (Petrie v. Petrie, 7 Lans. 90), or where it is in lieu of dower, and so may be deemed a purchase price (Blower v. Morret, 2 Ves. Sr., 421), such general legacy has been granted a preference.”

Therefore, in each case, it is the intention of the testator as stated in his will which we must seek.

I can find nothing, either in the will, codicil or surrounding circumstances which supports the contention of the executrix. On the contrary, the very fact that by far' the greater portion of the estate is disposed of by the testatrix by specific legacies and bequests, leaves it to be fairly inferred, that the testatrix intended that all other legacies should stand upon an equal footing, especially in view of the fact that it appears by the account that the personal property in the hands of the executrix is nearly, if not quite, sufficient to pay all legacies in full. Waters v. Collins, 3 Dem. 374.

Let decree enter accordingly.

Decreed accordingly.