
    Matter of the Judicial Settlement of the Account of J. Hampden Dougherty and Levi S. Tenney, as Executors of the Last Will and Testament of Salina Hudson, Deceased.
    (Surrogate’s Court, Kings County,
    July, 1909.)
    Wills — Interpretation and construction — Abatement — Order of abatement.
    Where a testator's estate is insufficient to pay in full a legacy to his stepson, an incompetent, a legacy to one of three persons who might become his committee and guardian, and a legacy to a cemetery association in trust to apply the income to the repair and preservation of the family monument,and burial lot, the estate will be applied proportionately in payment of these legacies.
    
      Proceeding upon the judicial settlement of the account of executors.
    Harry David Kerr, for executors.
    Dykman, Oeland & Kuhn, for Brooklyn Trust Company, as committee of George A. Hudson.
    Greene, Hurd & Stowell (Richard T. Greene, of counsel), for Cypress Hills Cemetery.
   Ketcham, S.

The estate which is the subject of the present accounting is insufficient to pay all of the legacies. There are three legacies, in behalf of each of which a claim is made that it should be preferred and saved from abatement, upon considerations which in each instance would require the payment of the legacy in full, if it were found in contrast with ordinary gratuitous legacies of the class generally subject to abatement.

Thus, the first provision for the stepson was doubtless inspired by solicitude .for one who bore to the testatrix the practical relation of foster son and who was helpless and unfortunate. A legacy for his support and protection would rank higher than a legacy or series of legacies of a general character.

The next legacy was given as an inducement or reward to one of three persons who might become the committee of the incompetent stepson and give to him the personal care and guardianship which he needed and which had been given to him by the testatrix. This in turn was a legacy to be preferred above legacies of general import, not only on the ground that it was intended for the protection of one who stood close to the affections of the testatrix, but also because it was a legacy given in compensation for a service to be performed by the legatee.

The gift to the cemetery, in trust to apply the income to the repair and preservation of the family monument and burial ground, was for a pious use and may, perhaps, be regarded as a provision for funeral or mortuary expenses. On either ground it would ordinarily not he subject to abatement along with general legacies.

When, therefore, there are three gifts, all equally appealing for preference upon grounds of equal weight and influence in each case, it would seem that they are of equal rank, each entitled to the same degree of preference and, therefore, among themselves entitled to none. The estate, not • being sufficient to discharge these three legacies in full, must be applied proportionately.

Decreed accordingly.  