Emery v. Bachelder

• Decision Date: 28 April 1886
• Citation: 78 Me. 223,3 A. 733
• Parties: EMERY and Wife v. BACHELDER and others, Ex'rs.
• Court: Maine Supreme Court

3 A. 733

78 Me. 223

EMERY and Wife

v. BACHELDER and others, Ex'rs.¹

SUPREME JUDICIAL COURT OF MAINE.

Filed April 28, 1886.

On report. The facts are stated in the opinion.

Bourne & Son, for plaintiff.

Strout & Holmes, for defendant.

FOSTER, J. Although the present action is for the recovery of a legacy given in the form of an annuity, the questions arising in the case depend upon the construction of the twenty-second clause in the will of Daniel Austin, late of Kittery, deceased. By that clause he provides as follows:

"I direct my executors, hereinafter named, to reserve from my estate, and to keep securely invested, such a sum of money as will be sufficient to produce a net annual income of four hundred dollars, and to pay the said income, in equal quarterly payments of one hundred dollars each, to Mrs. Mary Emery, wife of F. C. P. Emery, of Neponset, to her sole and separate receipt during her natural life; the first payment to be made three months from the date of my decease; the said principal sum, at the death of the said Mary, to revert to and form a portion of my residuary estate."

The other provisions in the will become important only so far as they may serve to throw light upon the questions raised in relation to the intention of the testator under the foregoing clause, and the nature and amount of the legacies given by the will. From these provisions it appears that the whole amount of the legacies was $41,800, exclusive of this annuity and residuary legacies. The defendants, as it appears, have settled two accounts, showing a balance, at that time, for distribution, of $45,426.12. They also, in the execution of their trust, and supposing the estate to be sufficient to pay all the legacies and this annuity in full, paid to the annuitant six consecutive quarterly payments of $100 each, under the clause in question, beginning three months after the death of the testator; the last one being on the fourth day of June, 1879. It was then found that the estate, as invested, was insufficient to set aside enough to meet this annuity in fall, and pay all the legacies named in the will. Accordingly the defendants, estimating the proportion of all the general legacies which the estate would meet at 80 per cent., have, since the fourth day of June, 1879, paid the annuitant $80 quarterly, subjecting the annuity and the legacies to the same proportional abatement.

The principal controversy, therefore, is whether this annuitant should sutler pro rata with the other general legatees in the will, or is entitled to priority over them, and to payment of the annuity in full. The answer to this proposition will be found when we come to examine the language used by the testator in the clause under consideration, the nature of the legacy therein named, and ascertain the intention of the testator as collected from the whole will; for his intention must be gathered, not from any particular clause alone, but from all the provisions of the will. And here we may say that the language used is such that there can be no question but that this legacy is general and not specific. It is for a certain amount, to be paid from the general fund of the estate. It is not specific, because not of any particular thing or from any particular money of the testator's estate. Therefore the general rule is that in the administration of testamentary assets, when there is a deficiency of such assets after the payment of debts, expenses, and specific legacies, the loss is to be borne pro rata by those pecuniary legacies which are in their nature general. Howie v. Swasey, 106 Mass. 104; McLean v. Robertson, 126 Mass. 538; Swasey v. American Bible Soc, 57 Me. 524. And it is the settled doctrine that annuities stand upon the same footing as legacies, and as between annuitants and legatees there is no priority merely because one is an annuitant and the other a legatee, where the estate is deficient, but both must abate in the same proportion. 2 Williams, Ex'rs, *1367; Croly v. Weld, 3 De Gex, M. & G. 996; Wroughton v. Colquhoun, 1 De Gex & S. 357. Of course, the rule in reference to proportional abatement applies only in case the possibility of a failure of sufficient assets to meet the legacies named in the will has not been anticipated and provided for specifically by the testator. Whenever it can be shown that such possibility of deficiency of assets has been specifically provided for, then his directions will govern, and the loss must be borne by those upon whom he has seen fit to place it. Therefore if, by express words, or by a fair construction, the intent of the testator is clearly manifest that one general legatee should have priority over the others, that intention must be carried out. But the burden lies upon the party seeking priority to establish it, and show that such was the intention of the testator; for the reason that, in the absence of proof of such priority, the testator is presumed to have considered his estate sufficient to pay all legacies, and therefore not to have thought it necessary to provide for a deficiency by giving preference to any of those upon whom he has bestowed his bounty. Miller v. Huddlestone, 3 Macn. & G. 513. Consequently no priority will be allowed where the expressions are ambiguous, and do not mark with certainty the testator's intention. Swasey v. American Bible Soc, 57 Me. 523; Titus v. Titus, 26 N. J. Eq. 111; Thwaites v. Foreman, 1 Colly. 409. The language used by the testator in the will is the basis of inquiry as to his intention; but such extrinsic circumstances as aid in the interpretation of that language, and assist at arriving at the intention, may properly be considered.

In the light of these principles, when applied to the language used by the testator in the case before us, we fail to find anything, either in the particular clause, or in any part of the will, or in the circumstances surrounding the case, which indicates any intention on the part of the testator that this annuity should have any preference over the other legacies. There is nothing to indicate that it was not his intention that all his legacies should be paid; certainly nothing which indicates that one should be paid at the expense of the others. The fact so strenuously urged upon our attention by the learned counsel for the plaintiff, that the testator directed the first installment to be paid at the end of three months from his death, does not indicate sufficiently that...