
    ANN P. WHITE ET AL. v. WILLIAM WHITE, CHARLES S. OLDEN AND STACY A. PAXSON, EXECUTORS, &c., OF SAMUEL S. OLDEN.
    The will first gave A. P. W. the sum of $10,000, and then gave a number of pecuniary legacies, and certain specific legacies. Then followed this clause : “ My bank stock I wish to make a part of A. P. W.’s legacy, as they will give her less trouble in collecting.” The will then gave certain other specific legacies, and gave all the remainder of his property to four cousins. Then followed this clause: “I wish that the house I have lately purchased of C. M C., valued at $4000, be a part of my dear aunt’s (A. P. W.’s) legacy, and that in the diyision of her portion, my Trenton Bank stock be calculated at $40 per share, and the Easton Bank stock at $30 per share.” The personal estate was insufficient to pay the pecuniary legacies in full. Seld, that A. P. Wc. took the house and lot and the bank stock at the valuations thereof, respec« lively, given by the will, without being subject to abatement.
    
      Samuel S. Olden, late of the county of Mercer, in this state, died on the 5th day of June, 1841, leaving a will, dated February 8th, 1841, by which he bequeathed to his “ dear aunt, Ann P. White, who, since she has had the charge of us, has acted the part of a kind and devoted mother, the sum of $10,000, to be paid to her as soon as practicable after my decease, or with interest from that time.” The will then gave a number of pecuniary legacies and certain specific legacies. Then follows this clause: “ My bank stock I wish to make a part of my dear aunt’s legacy, as they will give less trouble in collecting.” The will then gives certain other specific legacies; and then gives all the remainder of his property, both real and personal, to be equally divided among his four cousins, Job, Robert, George and John White. Then follows this clause : “ I wish that the house I have lately purchased of C. M. Campbell, valued at $4000, be a part of my dear aunt’s legacy ; and that in the division of her portion, my Trenton Bank be calculated at $40 per share, and the Easton Bank at $30 per share.” He then appoints his cousin, William White, and friends, Charles S. Olden and Stacy A. Paxson, executors of the will. By a codicil to his said will, dated May 28th, 1841, he gave and devised to his aunt, Ann P. White, in fee, a lot of woodland of fifteen acres, and all the provisions, and the vessels containing the same, that might be in the house where he resided, two pigs, one cow, and all the plate in his house; and then gave three other small pecuniary legacies.
    The bill states that, in addition to the house and lot directed by the will to be made a part of Ann P. White’s legacy, and the lot of woodland mentioned in the will, the testator died seized of a very considerable real estate, consisting of two large and valuable farms, in the said county of Mercer, and that Job White, Robert White, George White and John White, to whom the remainder of the testator’s property was given, after his death took possession of the same.
    The bill is exhibited by Ann P. White and other legatees, against the executors and the residuary devisees, aud prays an account of the personal estate and of the debts of the testator, and an account of the rents and profits of the real estate taken possession of by the residuary devisees; and that the complainants may be paid the full amount of their respective legacies, out of the personal estate, if that be sufficient for the purpose, and if not, then that a sufficient part of the real estate in possession of the residuary legatees may be sold, in aid of the personal estate, to pay the legacies; or that the debts be paid out of the real estate, and the legacies be paid out of the personal estate.
    A demurrer was filed to this bill, by the residuary devisees; and the executors of the will put in an answer to the bill. Job White afterwards died, leaving a will, devising all his real estate to Benjamin C. White, Elizabeth T. White and Martha Ann White ; and thereupon a bill of revivor and supplement was filed, making the said devisees of Job White parties to the suit.
    The cause was heard on the demurrer, and a decree made therein by the Court of Chancery, on the 11th of July, 1843, from which an appeal was taken to the Court of Errors and Appeals.
    In May, 1846, in conformity with the decree of the Court of Errors and Appeals, it was ordered by the court that the demurrer be allowed, and that the bill, so far as it related to the residuary devisees, be dismissed.
    In September, 1846, by consent of the solicitor for the complainants and the solicitor for the executors of the will, an order was made referring it to a master of this court to take and state an account of the personal .estate not specifically bequeathed, and of the debts and funeral and testamentary expenses, and of the legacies and the amounts due thereon, respectively ; and that if the personal estate not specifically bequeathed should be found insufficient to pay the legacies in full, the legacies should abate, giving the master liberty to state any special cireumsiauces, and reserving all further equity and directions until after the master shall have made his report.
    On the 1st of March, 1847, the master’s report came in. The master reported that the personal estate not specifically bequeathed amounts to $37,963,65J; that the debts and funeral and testamentary expenses amount to $13,111.01 ; leaving a balance of assets in the hands of the executors of $24,852.64; that the legacies given by the will and codicil amount to $33,325; that of the assets in the hands of the executors, $1847 consists of securities and stock not yet realized, and the value of which is uncertain, and that the last-mentioned sum should be deducted, to show the amount now in hand for distribution, leaving the said securities and stock to be hereafter accounted for. That after making the said deduction, the amount now on hand for distribution is $22,995.64. The master reports that all the said legacies are liable to abatement, and that an abatement of 31 per cent, is necessary to the present settlement, which will leave $1858.39 of money and securities in the hands of the executors to be accounted for hereafter. And the master gives, in a schedule annexed to his report, a statement of the sums to be paid to the legatees, respectively, on the principle adopted by him for distributing the amount now to be distributed among the legatees.
    By the said schedule, the amount given by the will to Ann P. White, (being $10,000,) is made to abate $3100; and the master reports the amount now to be paid to her to be $6900. The amounts to be now paid on all the other legacies, respectively, are ascertained by making a like abatement on each.
    Exceptions to this report were filed in behalf of Ann P„ White.
    The first, exception is, that the master has reported that the legacy of $10,000 to Ann P. White, and which the will directs should be paid to her, in part, by the house and lot he purchased of C. M. Campbell, valued at $4000, and in part by his bank stock in the Trenton Bank and in the Easton Bank, at certain prices or valuations named in the will, is subject"to abatement in common with the other legacies: whereas the said legacy is either a specific or a demonstrative legacy, and not a general or pecuniary legacy, and therefore not subject to abatement in common with the pecuniary legacies.
    The second exception is: For that the testator, though he first gave the said Ann P. White a pecuniary legacy of $10,000, yet that, in subsequent parts of his will, he altered and modified the said bequest by giving and devising to her, specifically, in lieu of so much of said sum, certain real estate in the will named, at the price or value of $4000; and also his stock in the Trenton Bank at $40 a share, and his stock in the Easton Bank, at $30 a share; and that the master has subjected the whole $10,000, of which the property above mentioned and specifically given, at specific values,.were to constitute a part, to abatement, in common with the pecuniary legacies.
    The third exception is: Because, if any part of the $10,000 is subject to abatement, it is only so much thereof as would remain to be paid in money, after deducting therefrom the said house and lot at $4000, and the said bank stocks, at the values per share mentioned in the will; whereas the master has reported that the whole sum of $10,000 is subject to abatement.
    The cause was heard on these exceptions.
    
      Jos. C. Hornblower and J. P. Bradley, in support of the exceptions.
    They cited 3 Dessau. 386-7; 7 Ves., Jr., 529, 530; 1 P. Wms. 403, 777; 18 Ves., Jr., 463 ; Ib. 146, 15 ; Ib. 384, 389 ; 1 Bevan’s Cond. Ch. Rep. 405; 1 Keene’s Rep. 210, 410; 4 Ves., Jr., 157; 1 Roper on Legacies 150, 1, 2, 3, 5, 163, 4, 6, 173, 7, 181, 3, 255; 2 Wms. on Ex’rs 740, 2, 3, 5, 6, 842; 2 Ves. 561, 4; Finch Rep. 303; Thos. Raym. 335; 2 P. Wms. 328, 469 ; Ambler 310 ; 2 Ves. 640 ; 4 16.150, 555, 750; 5 Ib. 199; 11 Ib. 607 ; 5 Ves. & Beam 2 ; 1 Meriv. 178 ; 2 Mad. Rep. 223; 2 Sim. & Stuart 354 ; 3 Eng. Cond. Ch. 194; 2 Young & Col. 90; 7 John. Ch. Rep. 258; 1 Dessau. 202; 3 16. 369.
    
      P. D. Vroom, contra.
    
   The Chancellor.

The testator first gives to his aunt, Ann P. White, (who, he says, has acted ihe part of a kind and devoted mother,) the sum of $10,000, to be paid to her as soon as-practicable after his decease, or with interest from that time,, and then gives a number of pecuniary legacies, and certain specific legacies. Then follows this clause: “My bank stock I wish to make a part of my dear aunt’s legacy, as they will givener less trouble in collecting.” He then gives certain other specific legacies, and gives all the remainder of his property, real and personal, to his four cousins, Job, Robert, George .and John White. Then follows this clause: “ I wish that the house I have lately purchased of C. M. Campbell, valued at $4000, be a part of my dear aunt’s legacy, and that in the division of her portion, my Trenton Bank be calculated -at $40 per share, and my Easton Bank at $30 per share.”

By a codicil to his will he gives to his aunt, Ann P. White, in fee, a lot of woodland, of fifteen acres, and all the provisions, and vessels containing the same, that might be in the house where he resided; two pigs, one eow, and all the plate in his house ; and then gives three other small pecuniary legacies.

The personal estate, after paying the debts and funeral and testamentary expenses, is insufficient to pay the pecuniary legacies in full.

The master has reported that, under the several clauses of the will in favor of Ann P. White, above stated, the gifts made to her should be considered in the light of a pecuniary legacy of $10,000, and should be subject to an abatement., on that sum, ratably with the other pecuniary legacies; which abatement would reduce what she is to receive to $6900; and that she should take the Campbell house and lot as $4000 of this $6900, and the bank stock, at the valuations fixed thereon by the testator in his will, as so much more of this $6900. The Trenton Bank stock is appraised, in the inventory, at $30 a share, instead of $40, the valuation fixed thereon by the will; and the Easton Bank stock is appraised at $30 a share, the same as the valuation thereof fixed by the will.

I agree with the master that, under the before-stated clauses of this will, Ann P. White is to take the Campbell house and lot at $4000, and the bank stock at the valuations thereof fixed by the will, as part of the $10,000 mentioned in the first of the said clauses. But the master has come to the conclusion on the question of abatement to which I have not been able to assent.

As to the house aud lot, it seems clear to me that the principle adopted by the master would not be just or reasonable. By the first of these clauses, the testator had given to A. P. White a pecuniary legacy of $10,000. If he had made no change in this respect, the ratable proportion of this whole sum would have been taken from the personal estate, and the other pecuniary legatees would have received proportionably smaller dividends on the legacies to them. The testator afterwards gives her a house and lot, at a fixed value, as part of, that is, instead of so much of the $10,000. This relieves the personal estate . of so much of the $10,000 to the benefit, to that extent, of the pecuniary legatees. I cannot see with what propriety the pecuniary legatees can claim that this house and lot, or the value at which it was given to her by the testator, in relief of the personal estate, to that extent, in favor of the legatees out of the personal estate, shall be subject to abatement. If he had given her a house and lot valued at $10,000, instead of the said legacy, it would not be claimed that the house, or the value thereof, was subject to abatement. By what rule can it be claimed that a house.and lot given instead of part of said legacy, must abate? The principle might lead to strange consequences. If an abatement of 75, instead of 31 per cent, had been necessary, A. P. White, on the principle adopted by the master, would have been obliged to pay $1500 to get a house and lot given her by the testator.

As to the bank stock, I am of opinion, also, that neither the stock nor the amount of the valuation thereof is subject to abatement. I will not enter upon a review of the.numerous decisions on the subject of specific and demonstrative legacies. No case was cited, nor have I found any that affords much aid in the consideration of the question discussed as arising under this will.

The will bequeaths to Ann P. White the stock. This is so considered by the master; for he gives it to her; and that, at the valuation fixed by the testator, though the appraised value of a part of it is $10 less per share. The argument in favor of the report is that the stock, or the testator’s valuation of it, should be subject to abatement, because it is given as part of the $10,000 given as a pecuniary legacy in a former part of the will. In my view, we are to read the will according to the idea or intention the testator must be supposed to have had when the subsequent provisions of it in favor of Ann P. White were made. Clearly a new and different idea prevailed with him, at this point of time, from that which lie had when the first clause was dictated, giving her a money legacy of $10,000. At this point of time, he certainly intended to give, and did give to her the house and lot and the bank stock; and his calling them a part of her legacy of $10,000 was simply because he had at first intended to give, and given her a money legacy of that amount.

We can hardly suppose that if the last intention had existed at the time he gave the pecuniary legacy of $10,000, the language of the will would have been the same it now is. It can hardly be supposed he would have begun by saying “ I give Arm P. White the sum of $10,000.” But if he had, and had then immediately added that he gave her the house and lot as part of it, and his bank stock, at fixed valuations, as another part of it, would it be any the less a gift to her of the house and the bank stock ?

The report of the master must be corrected in these particulars.

Order accordingly.  