
    David J. White & Ann J. Colvin v. William H. Beattie, ex’r of Ann J. White,
    From New-Hanover
    Specific legacies do not abate upon a deficiency of assets, unless all the property of the testator be specifically bequeathed.
    But where the testator does not give away the whole of his property specifically, and what is left, is afterwards consumed or destroyed»' by the test-tov or his executor, this circumstance will not make the specific legacies abate.
    
      It seems that to determine whether a specific legacy shall abate or not, evidence of the state of the assets dehors the will, may be received.
    The case of White v Beattie, {ante 87,) overruled upon a rehearing, as to the abatement of the specific legacies.
    This cause was heard again at the present term, upon the petition of the Defendant to set aside the interlocutory order, made at December Term 1827", and reported ante page 87. It is proper to explain an apparent difference between the statement of that case, and the opinion of the Chief-Justice, in respect to the accounts of the Defendant. Estimating debts alone, the Defendant was in arrears — but adding to the amount of debts the expenses incurred by the Defendant in erecting a wall round the grave-yard, and placing a tomb-stone over the testatrix and her mother, he was in advance.
    
      Badger argued for the Petitioner. No Counsel appeared for the Plaintiff.
   Henderson, Chief-Justice.

— The general rule is, that specific legacies do not abate, in favor of either general or pecuniary legacies. But as this maxim is founded on the presumed intent of the testator, that they should not abate, they are made to do so, when the testator directs that they shall. He is presumed to give that direction, or so to intend, when he gives away the whole of his estate in specific legacies, and then gives a pecuniary legacy. For how otherwise is the pecuniary legacy to be paid. But where the testator does not giveaway his whole personal estate in specific legacies, if what is left is afterwards lost, destr oyed or used by the testator-, or is wasted or consumed by the executor, in payment of debts or otherwise, such supervenient circumstances will not alter the construction of the will. For it is a question of intent at the time of making the will. We must collect the intent, so far as regards the present question, by applying the words of the will to the then existing circumstances, and it is not to be affected by the changes which time and chance may have produced.— Otherwise the intent would be changeable and fluctuating, not fixed and uniform j one intent to-day, another tomorrow.

This case does not render it necessary to discuss the question, whether it must be collected from the face of the will, that all the property is exhausted in specific legacies ; or whether the fact may be proved by evidence dehors the will. For it does not appear in this case, what was the state of the funds when the will was made. I presume however, that it would impugn no rule of law or evidence, to prove the fact by extrinsic testimony* It appears, that the testatrix iiad other property at her death, besides what she specifically bequeathed.

I cannot perceive on what grounds the decree heretofore made can be supported. The case of Sayer v. Sayer, (Prec. Chan. 393,) on which it was professedly founded, does not support it. The truth is, that when the case was before us heretofore, the facts were strangely misconceived.

Per Curiam.

— Let the bill be dismissed with costs.  