#### Matter of the Will of Henry L. Hinman, Deceased.

(Surrogate’s Court, Otsego County,

October, 1900.)

1. Legacy — Abatement of trust provision for life support of a brother.

Where the assets prove insufficient to pay in full general legacies-made to volunteers, a trust provision for the life support' of a brother, otherwise unprovided for by the will but not dependent upon the testator in his lifetime, abates proportionately with all the other general legacies, as the relationship of a brother is too remote to. except the bequest for his.benefit from the general rule.

2. Same — Legacy to a cemetery does not abate.

A legacy to a cemetery providing for the care of the testator’s lot does not abate.

Proceedings for the final settlement of the accounts of the executor of the will of Henry L. Hinman, deceased.

*537James W. Tucker, for executor and trustee.

O. F. Lane, for a legatee.

Arnold, S.

The will of the decedent gives to various persons, general legacies, amounting in the aggregate to almost $20,000.

It appears in this proceeding that the assets are insufficient to pay these legacies in full. Upon the settlement of the decree, the question arises whether the decree shall direct that all general legacies shall abate *pro rata,*or whether the legacy given to Morris E. Hinman is entitled to be preferred. The provision for Morris E. Hinman is as follows: “ I give to George M. Jarvis in trust for the benefit of my brother Morris E. Hinman, the sum of $4,000 to be kept invested and the interest, and if that is not sufficient, then so much of the principal as my trustee may deem,necessary to be used for the support of my said brother during his life.”

The general rule is that where the assets prove insufficient to pay the general legacies in full and all the general legatees are volunteers, the general legacies must abate proportionately *inter se,*in the absence of an intent on the part of the testator to prefer one general legacy to another. Under some circumstances the courts have found an intention to prefer without express words on the part of the testator. The leading case establishing this construction by the courts is Lewin v. Lewin, 2 Ves. 415. In that case the executor was directed to pay an annuity to the wife for the maintenance of a child. Lord Hardwicke declared that it was a strong case to show that the annuity was intended to be preferred, especially in view of the fact that it was a provision for a child otherwise unprovided for.

In New York, the rule established in Lewin v. Lewin seems to have been followed. In this State it has been held that legacies for support and maintenance of wife and child, otherwise unprovided for, do not abate with general legacies. Stewart v. Chambers, 2 Sandf. Ch. 393.

The principle has also been extended to the analogous case of a bequest by a wife for the support of her husband. Scofield v. Adams, 12 Hun, 366.

The principle seems to have been further extended to bequests for the maintenance of minors who are near relatives of the decedent. Petrie v. Petrie, 7 Lans. 93.

*538The principle referred to seems to have been approved in Bliven v. Seymour, 88 N. Y. 475, and in Matter of Chauncey, 119 N. Y. 84. But it would seem to be the prevailing opinion that the rule should not be further extended by mere construction. 3 Pom. Eq. Juris. 77; 2 Williams Exe. (7th Am. ed.) 661; Roper Legacies (2d Am. ed.) 422; Woerner Adm. 988.

A general legacy, given for a specific purpose, abates with other general legacies. Wetmore v. N. Y. Institution for the Blind, 9 N. Y. Supp. 753.

In the case at bar, testator gives to his sister $4,000. He gives to his brother $4,000 in trust. From the will I cannot' find any intention to prefer the brother over the sister. It does not appear in any way that the brother was dependent upon the testator during his lifetime for his support and maintenance; nor does it appear that the relations of the testator to the brother were- any closer or nearer than his relations to the sister.

I, therefore, hold that the legacy given to George M. Jarvis, as trustee, must abate with the other general legacies. But the legacy to Lakewood Cemetery, providing for the care of lots of Louis Hinman and Henry L. Hinman, may be paid in full. Wood v. Vandenburgh, 6 Paige, 285. A decree may be entered accordingly.

Decreed accordingly.