Armstrong's Appeal

The opinion of the court was delivered, January 3d 1870, by Sharswood, J. — It was settled in England by Long v. Short, 1 P. Wms. 403, that specific devises of land and specific bequests of personalty must abate rateably in „?se of a deficiency of assets for the payment of the bond debts of the testator, because both lands and chattels were liable in law for those debts, and it was equally the intention of the testator that the legatee should have the chattel, and the devisee the land: 1 Roper on Legacies 254. In this state, where lands have always been assets for the payment of debts by simple contract as well as by specialty, the rule is general — that wherever there is a deficiency of assets ■ to pay both debts and legacies, specific devisees and specific legatees shall contribute proportionably. What is termed a demonstrative legacy [316] partakes, in this respect, of the privilege of a specific legacy. A demonstrative legacy is the bequest of a certain sum of money, with a direction that it shall be paid out of a particular fund. It differs from a specific legacy in this respect, that if the fund out of which it is payable fails for any cause, it is nevertheless entitled to come on the estate as a general legacy, and it differs from a general legacy in this, that it does not abate in that class, hut in the class of specific legacies: 1 Roper on Legacies 153. It is settled by this court that in the marshalling of assets for the payment of the debts of a testator, specific devises of land abate proportionally with specific and demonstrative legacies: Barklay’s Estate, 10 Barr 387; Hallowell’s Estate, 11 Harris 223. The legacy to Mrs Rea falls clearly within the class of demonstrative legacies. By the will the sum of $1200 was to be paid to her out of the proceeds of the mill property, and by the codicil she was to have in addition, out of the proceeds of the sale of the mill, bank stock, and other personal property, a sum sufficient to make her equal to her sister Elizabeth, in the amount which the testator had loaned and paid to her husband. There is certainly nothing in the will to evince a different intention. On the contrary, the testator carefully provides that if the sale of his mill property should not produce sufficient to pay the sums bequeathed to his daughters respectively, they were to be paid out of his estate in general; which strongly implies a preference and priority to them, and that their legacies were to be paid to them at all events: Duncan v. Alt, 3 Penna. Rep. 382. To apply any less favorable rule to Mrs. Rea than that which was adopted in this case would most clearly disappoint the intention of the testator, “ and cut up his plan of distribution by the roots.” While the other devisees and legatee would receive their bequests in full, the entire loss would fall on Mrs. Rea as effectually as if she had been a mere residuary legatee and postponed to them all. The third assignment of error is contrary to Rule VI., 6 Harris 578, as it raises two different points, and is therefore a waiver of both. It may be observed, however, that the auditor reports that the amount of Mrs. Rea’s legacy, ascertained by him, is subject to any receipts for money or. any bank stock she may have received from the executors, and in truth the object of the reference was not to distribute the estate in the hands of the executors, but to ascertain how the balance found against it, and due to the accountants upon the settlement of the personalty, was to be made up. As to the charge of interest from the date of the sale of the mill property and bank stock, respectively, there is nothing in that of which the appellants have any right to complain. The amount of her pro rata contribution to the deficit is properly calculated on the sum due her at the testator’s death, as in the case of the others. The executors may have a right to require of her [317] a refunding bond under the direction of the Orphans’ Court before the payment, but that is a subsequent matter. This disposes of the remaining errors assigned. Decree affirmed, and appeal dismissed at the costs of the appellants.