
    *Jett, Ex’r, of Bernard v. Bernard.
    [Thursday, April 23d, 1801.]
    Legacies — Abatement.—A Wid'ow taking a legacy under the will, shall abate in proportion with the other legatees.
    William Bernard,-among other- bequests to his wife, bequeathed her a legacy, in the following words: “Item,- out - of my crops of tobacco and tobacco debts, I devise to my wife, forty thousand weight, to enable her to purchase a carriage, and to suppl3r her with such necessaries as she may be in want of:” And among other bequests to his son Richard Bernard; he bequeathed him a legacy in these words: <:I also give to him, to supply himself with necessaries, twenty thousand- pounds of tobacco, out of my crops and outstanding tobacco debts.” Of which will, he appointed his son Richard, one of the executors, who alone qualified. After the deaths of the said Richard Bernard- and of the testator’s said widow, her son and administrator, brought a suit against Jett, as executor of the said Richard Bernard, and among other things, claimed the balance of the 40,000 weight of tobacco bequeathed to her as aforesaid. Upon a reference to the commissioner, it appeared that'there were not funds enou'gh'to pay both ■ the above legacies, but he, being of opinion that the widow was first entitled, and that the -deficiency arose from the ■ misconduct of the executor, charged the defendant with the balance Of the said legacy and interest. The defendant excepted to the report; and the Court of Chancery being of opinion, that if the’ fund was not sufficient to pay both the legacies, and the deficiency was not occasioned by the default of the executor, th'e legacies otight to abate proportionally, directed a- jury to enquire, whether the deficiency was occasioned by negligence or other default of the executor. There being other parts of the decree with which Jett was dissatisfied, he appealed to this Court.
    *Call, for the. appellant.
    .The legacies -to- Mrs. Bernard and Richard Bernard, ought to be paid proportionably, out .of the . tobacco which has been collected;- because the residue of. the debts being doubtful originally, the fund is. likely to prove defective for payment of . both; and,. therefore, justice requires that the legacies should abate in proportion. The case of Burridge v. Bradyl, 1 P. Wms. 127,.is a. single case; it was decided on the special circumstances; and -does not establish the general principle contended for: Besides, i.t -was probably a case of compassion, and, therefore, it would be too much to found a rule of property on it; especially, as in that case, there was an express release of the dower for the legacy, which was a beneficial consideration paid, for .it. But here, there was no such consideration; because, if she had taken her thirds, they would have been subject to the same abatement; and, therefore, she lost nothing by taking the legacy; for, it is only making the abatement upon the legacy; instead of making it on the distributive share. But what is decisive in the present case, is, that the testator shewed the same desire for the payment of both legacies. For, they are both- given in the same language: In both, i.t is to buy such. necessaries as the legatee, may stand in need of: which discovers -an equal desire that both should be satisfied, and repels the idea of a preference in payment.
    Wickham and Warden, contra.
    The legacy to Mrs. Bernard ought not to abate; because she receives it in lieu of her third part under the act of.- Assembly. In the case of Burridge v. Bradyl, 1 P. Wms. 127, it. was expressly held, that .where the wife released her dower for the legacy, it should not abate; and the reason is the same, where the release is wrought by the operation of law. For, she cannot have the legacy and her thirds too: and the taking the legacy destroys her claim to a third part of the estate, • under the act of Assembly.
    Cur. a^lv. vult.
   *LYONS, Judge.

Delivered the resolution of the Court, that there was no error in the decree; and, consequently, that it was to be affirmed.

Decree affirmed.  