The Providence news. (Providence [R.I.]) 1891-1906, 1899-05-11
MRS. TKAYER'S WILL.
Decision Of Court on Bill Asking for
Instructions.
Fund In Hands Of The Executor Not Suite sni
10 Fay LegacIes

The following interesting opinion was
handed down today in the case of AL
ONO J. Knicerson vs.. Alexander ~.
Bragg, ct al, which was before the
court on bill for instructions. Judge
Stiness writes the opinion OF the fun
appellate court: The will in question
gives pecuniary legaces TO the amount
of $500 The fund in the hands OF the
executor IL not enough 10 pay them In
full. and the executor asks for instruc-
tions
The fourth clause OF the will gives
TO DOrcas IL. Thayer. the interest OF
$1,000. TO be paid to her semi-arnually,
OF oftener. during the term of her nat
ural life. and at her deccase $500 of the
above named $1,000 is 10 be paid 10 the
treasurer of the American Bible Socie-
.ty with which the Methodist Episcopal
church Is connected, and the remaining
$500 shall be paid To the New England
Southern Conference Missionary So
ciety, auxiliary to the Missionary So
ciety of the Methodist Episcopal church
incorporated by the Legislature OF the
state of New York, for the use or said
society"
FIVE, iegacirs OF Sfgo each, are given
under the seventh clause 10 persons
who died before the testatriX, ana the
clause provides: IF any of the persons
named above i'm the seventh item be not
living at the time of the settlement OF
my estate. then the share of that person
or persons shall be placed with the re-
mainder of my estate
The questions are: First, whether the
legacy to Mrs. Thayer must abate pro
rata with the other legacies, or whether
the sum of $1,000 shall be set aside for
her regardless of the other legacies?
Second. whether the other legacies spe-
cified in said will shall abate pro rata?
Third, what shall be done with the leg
acy bequeathed TO Miss Mary Cobb,
who died before the testratrlx?
''As % the first question, the general
rule was stated i'm Richardson vs.
Bowen IS Il. /. l3S. that. when there
is "A deficiency Of assets, annuities must
abate ratably with the pecuniary lega-
cies. II there is nothing in the viii TO
show a contrary intent. The bequest
I'm this case il not strictly an annuity.
but the temporary income of pecu-
mary legacy. The gift of a sum OF
money is made TO two parties, with the
provision that its income shall go TO an
other during life. II the gift stood alone
there can he no question that IL would
abate. and the mere diversion of the
lntoUlt TOT al llint tdH Iipl Nht
character OF the legacy. Hence under
the rules OF both annuitles and general
pecuniary legacles II must abate pro
rata with other legacies. Am. and
Eng. Ency. (2nd Edi) p. a.. So IL is
suggested that by reason OF her ad-
vanced age and inability 10 provide for
her own support. the bequest may be
ErUIfrIF f0 that IN Richardson w. Brown
supra. where IL was held that the abate-
ment of the stated sum souli not abate.
But i'm that case the intention TO give
the sum without abatement presum-
ably for the reason stated. appeared In
the viii itself Nothing appears in this
will % raise such a presumption.
Second. AS we see nothing In the
will 10 evince an intention 10 prefer
any of the pecuniary legacies all are
subject % abatement under the rule
above stated. Third. The seventh
clause adds lapsed Iegacles To the resi-
due. but the result would be the same
without this provision i'm the Will. New
-ten-vs Peekhafff. II X. I. 32f, We see
no reason to infer that these legacies
were to be taken out or the general rule
and made specific gifts To the remand
er men. The gifts of the residue Is
subject 60 the precedent claims upon
the estate. II il "a gift what remains
after the debt and legacies are paia.
Tomlinson VS. Bury-ff5 Mass. 3i6, 3ik
Derby VS.. Derby, X. J. I4. The
amount, therefore. of the iapsed lega-
cies viii go TO the fund for the general
pecuniary legacies."