In re Estate of Neistrath

Myrick, J. The question involved in this appeal is whether, under the law of this State, general pecuniary legacies shall be paid in preference to specific devises or specific lega-

[331]It is claimed by the appellant that the legislature casually omitted the word “ not,” in subdivision 4 of section 1360, Civil Code, and that the legislature intended to declare that property not specifically devised or bequeathed shall be resorted to for the payment of legacies. In comparing this section with others, there would seem to be ground for the contention; yet it may have been that the legislature intentionally inserted the word “ not ” in subdivision 4 of section 1359, regarding the order in which property is to be taken for the payment of debts, and intentionally omitted the word in the section relating to the payment of legacies. We do not think the above sections alone furnished the rule by which the present question should be decided. By section 1357, C. C., legacies are divided into five distinct classes, viz: specific, demonstrative, annuities, residuary, and general. Section 1362 declares that abatement takes place in any class only as between legacies of that class, unless a different intention is expressed in the will. “ Abatement ” is thus defined in Bouvier’s Law Dictionary:

“ The reduction of a legacy, general or specific, on account of the insufficiency of the estate of the testator to pay his debts and legacies. When the estate of a testator is insufficient to pay both debts and legacies, it is the rule that the general legacies must abate proportionably to an amount sufficient to pay the debts. If the general legacies are exhausted before the debts are paid, then, and not till then, the specific legacies abate, and proportionably.” (2 Sharswood’s Black. Com. 513, and note; Bacon, Abr. Leg. H.; Roper, Leg. 253, 284; 2 Brown, Ch. 19 ; 2 P. Will, Ch. 283.)

Reading the sections of the code above referred to, it may very properly be supposed that the legislature intended to say, that property specifically devised or bequeathed may be resorted to for the payment of legacies; but it can be resorted to only when abatement takes place, and abatement takes place only for the purpose of equalizing legacies of a class, and not for the purpose of equalizing all legacies of every kind. A strict construction of section 1360, according to the contention of the respondents, would result in making a general pecuniary legacy have preference over a specific legacy; for as, according to that contention, property specifically bequeathed may be taken to