Mr. Justice Clark
delivered the opinion of the court
The testator, Lewis Wain, domiciled in the city of Philadelphia, died in the month of December, 1863, leaving neither wife nor child, father nor mother. By his last will and testament he provided, in substance as follows :—
1. That his debts should be paid from the proceeds of his estate, not specifically devised.
2. To his sister, Phoebe L. Wain, he devised his house and lot, No. 914 Walnut street, with the furniture, &c., except his books and paintings, otherwise specifically disposed of; directing, that all incumbrances thereon should, as soon as practicable, be discharged, “ so that,” as the testator himself says, “ my sister may hold the said estate in fee simple, free from all incumbrances, and free from any claim for interest, or taxes.”
3. To his brother William Wain, he gave Wain Grove, his country seat, with the adjoining grounds, comprising about fifteen acres, in the twenty-third ward, with the personal property therein, &c.; “provided nevertheless, that the property bequeathed shall be subject to sale in whole or in part, as the case may require, to enable the executors to carry out fully the. previous provisions of this will, it being my intention that each bequest shall be fully carried out, in the order in which it appears in this my last will and testament, as the funds derived from my estate may permit.”
4. After directing the sale of the remainder of his real estate in the Twenty-third ward, within two years after his death, he gives pecuniary legacies as follows: — $200 to each of his two colored servants, “ in consideration of their faithful services; ” $10,000 in trust for his niece Susan Israel, for life, &c.; $10,000 in trust for his two nieces, Phoebe and Mary, in equal shares, for life, &c.; $12,000 in trust for his two nieces, Rebecca and Julia, and a nephew, Francis, for life, in equal [487] shares, &c.; $2000 to the son of his niece Mary; $2000 to the son of an old friend. The residue of his estate, real and personal, is given to his brother, the devisee of the country seat.
The specific provisions in favor of liis sister Plioebe L. Wain and his brother William Wain, are unimpaired, and these, with the bequest of his books and paintings, have been “ fully carried out ” ; but to pay the general legacies, amounting in the aggregate to $88.400, there remains in the hands of the executor only $16,000. In view of this deficiency of assets the Pennsylvania Company &e., trustee for Susan Israel, contends, that this fund should be applied to each of the several pecuniary legacies, “in the order in which it appears,” in the will, and claims priority in right, over the legacies which are written in the will, after the legacy of Susan Israel. »
In the distribution of a testator’s estate, the well known general rule of the common law is, that, in case the assets, after payment of debts, are insufficient to answer the specific but not the general legacies, the latter are subject to a proportional abatement; but if by the will the intent of the testator, clearly manifested, is to give one or more general,, legatees a priority to others, that intention will be carried into effect: Williams on Executors, 1467-71. The 48th section of our statute, of 24th February, 1834? Purd. Dig., 448 pi. 212, is, therefore, declaratory merely of the rule previously recognized. No such preference, however, can be presumed; it must clearly appear, either by the express words, or from fair construction of the will. It is founded in an apprehension of an actual deficiency of assets, not of any anticipated delay, in bringing them to distributable form; therefore, a distinction must, in each case, be made between what may be intended as a priority in payment merely, and wliat may import a priority in right. We think however, to whichever portion of the will they may be found to refer, there can be no doubt, that the words of the proviso are sufficient to indicate, that a preference in right was intended. We cannot mistake the meaning of the testator, when he says, that it is his intention “ that each bequest shall be fully carried out, in the order in which it appears,” in the will, as the funds of his estate nmy permit. It is quite clear, we think, that this was written, when the testator had in his mind the possibility of a deficiency of assets, and that his purpose was not merely to provide an order of payment.
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Mr. Justice Clark
delivered the opinion of the court
The testator, Lewis Wain, domiciled in the city of Philadelphia, died in the month of December, 1863, leaving neither wife nor child, father nor mother. By his last will and testament he provided, in substance as follows :—
1. That his debts should be paid from the proceeds of his estate, not specifically devised.
2. To his sister, Phoebe L. Wain, he devised his house and lot, No. 914 Walnut street, with the furniture, &c., except his books and paintings, otherwise specifically disposed of; directing, that all incumbrances thereon should, as soon as practicable, be discharged, “ so that,” as the testator himself says, “ my sister may hold the said estate in fee simple, free from all incumbrances, and free from any claim for interest, or taxes.”
3. To his brother William Wain, he gave Wain Grove, his country seat, with the adjoining grounds, comprising about fifteen acres, in the twenty-third ward, with the personal property therein, &c.; “provided nevertheless, that the property bequeathed shall be subject to sale in whole or in part, as the case may require, to enable the executors to carry out fully the. previous provisions of this will, it being my intention that each bequest shall be fully carried out, in the order in which it appears in this my last will and testament, as the funds derived from my estate may permit.”
4. After directing the sale of the remainder of his real estate in the Twenty-third ward, within two years after his death, he gives pecuniary legacies as follows: — $200 to each of his two colored servants, “ in consideration of their faithful services; ” $10,000 in trust for his niece Susan Israel, for life, &c.; $10,000 in trust for his two nieces, Phoebe and Mary, in equal shares, for life, &c.; $12,000 in trust for his two nieces, Rebecca and Julia, and a nephew, Francis, for life, in equal [487] shares, &c.; $2000 to the son of his niece Mary; $2000 to the son of an old friend. The residue of his estate, real and personal, is given to his brother, the devisee of the country seat.
The specific provisions in favor of liis sister Plioebe L. Wain and his brother William Wain, are unimpaired, and these, with the bequest of his books and paintings, have been “ fully carried out ” ; but to pay the general legacies, amounting in the aggregate to $88.400, there remains in the hands of the executor only $16,000. In view of this deficiency of assets the Pennsylvania Company &e., trustee for Susan Israel, contends, that this fund should be applied to each of the several pecuniary legacies, “in the order in which it appears,” in the will, and claims priority in right, over the legacies which are written in the will, after the legacy of Susan Israel. »
In the distribution of a testator’s estate, the well known general rule of the common law is, that, in case the assets, after payment of debts, are insufficient to answer the specific but not the general legacies, the latter are subject to a proportional abatement; but if by the will the intent of the testator, clearly manifested, is to give one or more general,, legatees a priority to others, that intention will be carried into effect: Williams on Executors, 1467-71. The 48th section of our statute, of 24th February, 1834? Purd. Dig., 448 pi. 212, is, therefore, declaratory merely of the rule previously recognized. No such preference, however, can be presumed; it must clearly appear, either by the express words, or from fair construction of the will. It is founded in an apprehension of an actual deficiency of assets, not of any anticipated delay, in bringing them to distributable form; therefore, a distinction must, in each case, be made between what may be intended as a priority in payment merely, and wliat may import a priority in right. We think however, to whichever portion of the will they may be found to refer, there can be no doubt, that the words of the proviso are sufficient to indicate, that a preference in right was intended. We cannot mistake the meaning of the testator, when he says, that it is his intention “ that each bequest shall be fully carried out, in the order in which it appears,” in the will, as the funds of his estate nmy permit. It is quite clear, we think, that this was written, when the testator had in his mind the possibility of a deficiency of assets, and that his purpose was not merely to provide an order of payment.
But the question which remains to be decided is, to what this preference applies. Was it intended to apply in the immediate connection in which it is expressed, only, or was it also intended to affect the relative rights of the general lega[488] tees, of whom as yet the testator liad not spoken? The opinion of the learned court below is so full and clear upon the point indicated, that any further discussion or elaboration of it must necessarily involve a useless repetition. We will, therefore, refer but briefly to the considerations which, in our view, show the conclusions of the learned court to be correct. It is certainly clear that the first clause relates exclusively to the. antecedent portions of the will; that is its plain and precise expression — “ the property bequeathed shall be subject to sale, in whole or in part, as the case may require, to enable the executors to carry out fully the previous provisions of the will.” But it is contended, that the second clause is more general in expression, and was intended to apply to the provisions of the will throughout. It will be observed that the two clauses constitute but a single sentence; their grammatical construction seems to show that they were so intended. No mere punctuation could give to the second clause the form of an independent sentence; it is parenthetic, and is connected in sense with what immediately precedes it. The first clause, it is admitted, gave a preference to Phoebe L. Wain, oover her brother, William Wain, and the second, undoubted!]', gave them both a preference over all others; each clause, therefore, evidences a distinct purpose of the testator’s mind, and their force would in no degree be impaired, if the general legacies had, in fact, not been created. A bequest, it is true, is properly of personal estate, but the testator having spoken of the gift to his brother as the “ property bequeathed ” to him, we may believe, if the contexts favors it, that “ each bequest ” refers to the gifts previously made although consisting, in part, of realty; and especially so, as these were a't the moment, the subject of his particular consideration. The testator does not say that “ all the bequests ” are to be fully carried out in their order; his language is, “ each bequest ” and as, in the same sentence, he had particular reference to the two previous provisions it is fair to infer that these were intended. This view of the ease is greatly strengthened by the fact, that no motive is discovered for the preference of one of the legatees over the others; all stood in equal degree of kinship to the testator, and no fact or circumstance appears to explain his purpose, in the preference, alleged. We may however, readily assign the motive which would move the mind of a brother to exercise such a preference for the protection of a single sister. Whilst a preference in right is in all cases founded on an apprehension of a deficiency of assets, it is not established thereby, it must be expressed in the will. Equality is the highest equit]q and, in a distribution to legatees, will be enforced unless, as directed by the [489] Act of 1834, “it shall be otherwise provided bv the will.” The burden is upon the appellants; if the will gives them a preference over others, they must point out the place where it may be found. The presumption is against it, and tliat presumption cannot be repelled by any ambiguous expression; the intent to the contrary must be clear. Nor will tbe testator’s design, in any event to uphold the specific gift to bis sister, dispense with the measure and quality of proof required, or sliow an intent to extend that preference to the general legatees in their order; unless the priority alleged clearly appear, they will be let in on equal terms : University’s Appeal, 1 Out., 187.
We agree with the learned court below, that the reasonable construction of this will shows the testator’s purpose, that the provision for his sister should first be “ fully carried out,” even if tbe gift to his brother, “in full or in part,” be required for the purpose; but if the funds of the estate permit, that each of said “bequests” should be “fully carried out, in tbe order in which they appear in the will, and.that this was the only preference which the testator intended.
It follows, that the $16,000, in the hands of the executor, must be distributed, pro rata, to the general legacies.
The decree of the Orphans’ Court is therefore affirmed, and the appeal dismissed at the cost of the appellant.