#### *In re*Willett’s Estate.

*(Supreme Court, General Term, Second Department.*

July 18, 1890.)

Wills—Construction—Specific Bequests.

A testator directed the sale of his household furniture, and that the balance of the proceeds, after payment of the funeral expenses, he paid to a certain named church. He then' bequeathed to one S. the joint note of herself and her husband. By the fourth clause of the will testator’s estate was directed to he applied to the payment of certain legacies therein given, and that any residue should be divided among “the said legatees in the same proportion that the several legacies bear to each other, ” and that a deficiency, if the “sale of my property should prove insufficient for the payment of all said legacies in full, ” should be borne in like manner. *Held,*that the bequests of the note and the balance of the proceeds of the furniture were specific bequests.

Appeal from surrogate’s court, -Dutchess county.

This is an appeal taken by Wesley Brett, a residuary legatee under the will of Robert Willett, deceased, from that portion of a decree directing a distribution of the estate which allowed Susan A. Scott and the First Methodist Episcopal Church of Matteawan, 2T. Y„ to share in the distribution of the surplus.

Argued before Barnard, R. J., and Dykhan and Pratt, JJ.

*S. K. Phillips,*for appellant. *W. R. Woodin,*for respondent Susan A. Scott.

Barnard, P. J.

The bequest of the note to Susan A. Scott, which was described in the will as “the joint note of herself and John E. Scott, her husband, together with all moneys which may be due thereon at the time of my death,” was a specific bequest. The language of the will distinguished the thing given from all others of the same kind. By the construction of the will it is excluded from any abatement on account of an insufficiency of property to pay other legacies in full. By the second clause of the will the testator directed the sale of his household furniture, and to apply the proceeds to the payment of the funeral expenses, and the balance remaining was to be paid to the First Methodist Episcopal Church of Matteawan, absolutely. By the third clause of the will the note in question was given, and by the fourth clause the rest, residue, and remainder was applied to the payment of certain. legacies therein given. The will provides that if there is any residue it shall be divided among “the said legatees in the same proportion that the several legacies bear to each other,” and that a deficiency, if the “sale of my property should prove insufficient for the payment of all said legacies in full, ” should be borne in like manner. Under this clause of the will the note could not be abated, and was not embraced with the legacies payable out of the residue of the estate, after its withdrawal from the estate. The same conclusion must be reached as to the gift of the balance of moneys realized from the sale of the household furniture of the testator, and given to the Methodist Episcopal Church under the second clause in the will. The church was given a part of the proceeds of certain.definite property, and was intended to be wholly separate from his scheme for the distribution of the surplus of this balance of the estate, as effected by the fourth clause of the will. That clause created a class of legacies to be paid out of the residue of the estate, and it is only to this class that the excess was to go in proportion to the legacies. The decree of the surrogate should therefore be modified so as to exclude the church un*872der the second clause of the will, and Susan A. Scott under the third clause, of the will, from participation in the excess of the estate over and above payments of the legacies in the fourth clause of the will. All concur.