
    In the matter of the judicial settlement of the accounts of Abraham Brett et al., Ex’rs of Robert Willett, deceased.
    
      (Supreme Court, General Term, Second Department
    
    
      Filed July 18, 1890.)
    
    Wills — Construction of — Distribution of surplus among legatees.
    Testator bequeathed to one S. a note made by her and to a church the residue of the proceeds of the household furniture after paying funeral expenses and then directed the residue of his estate to be applied to the payment of certain legacies named in that clause and provided that if any residue was left it should be divided among “the said legatees in the same proportion that the several legacies bore to each other ” and if a deficiency it should be borne in the same manner. Held, that the excess was intended to go only to the class of legatees named in the last clause and that S. and the church could not share in the surplus.
    Appeal from so much of the decree of surrogate of Dutchess' county settling the accounts of the executors and directing distribution of the estate as provides that Susan A. Scott and the First Methodist Church shall share in a surplus residue over legacies.
    The testator in and by the second paragraph of his will gives-to the trustees of the First Methodist Episcopal Church of Matteawan, FT. Y., for such uses as the ladies of the congregation shall direct, the balance of a sum to be realized from a sale of his furniture, after payment of his funeral expenses.
    In and by the third paragraph of the will he gives to Susan Ann Scott the joint note of herself and John E. Scott, her husband; and in and by the fourth paragraph of the will directs his executors to sell and dispose of all the rest, residue and remainder of his estate, and out of the proceeds he gives legacies aggregating $12,600, and then in the same paragraph of the will directs that should there be any residue after paying the legacies above provided for, that the same be divided among the said legatees in the same proportion that their several legacies bear to each other, except that legacies to the Highland Hospital and to Wilber Charlock, legatees under the same paragraph, shall not be increased. The balance of the proceeds of the sale of the furniture-after paying funeral expenses was $78.96.
    At the testator’s death he held the joint note of the legatee, Susan Ann Scott, and her husband, John E. Scott, the amount-of which principal and interest was $1,055.
    The proceeds of the property mentioned in the fourth paragraph of the will was more than sufficient to pay the legacies therein mentioned.-
    The surrogate decided that the surplus be divided among all the legatees named in the will, whether in the fourth paragraph or in any other paragraph of the will.
    
      S. K. Phillips, for app’lt; William P. Wordin, for resp’t, Susan A. Scott; Sherwood Phillips, for resp’t, Wm. Way; MS. Phillips, for ex’rs; F. G. Piclcert, guardian ad litem for Willett A. Lawrence- and attorney for resp’t, Catharine L. Heroy.
   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 thereof, 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 Chuch 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 samé proportion that the several legacies bore 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 affected 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, under 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.

Dykman and Pratt, JJ., concur.  