Kirkpatrick, 0. J.
Peter Perrine, the testator, in and by his last will and testament, gives and bequeaths as follows, viz: “ Imprimis, I give and bequeath unto my well beloved [166]*166wife, Hannah, all the articles, goods and furniture that I received with her after our marriage, likewise the sum of three hundred dollars ; the said goods and furniture to be delivered to her immediately after my decease, and the said sum of money to be paid to her within three months after my decease; all the above mentioned property, and; the said sum of money, I give and bequeath unto her, my said wife Hannah, provided she shall accept the same in lieu of her right of dower, and not otherwise.”
“ Item, I give and bequeath unto my son, Enoch, his heirs- and assigns forever, all the lands now owned by me, together with all the residue of my moveable property of every description, not before bequeathed, provided he shall pay the several sums of money, as is hereafter directed.”
Then he gives to his seven daughters, and the children of a deceased daughter, $50 each, to-be paid within one year after his decease, and directs, that his son, Enoch, shall pay all his just debts, funeral expenses, the costs of executing' his will, and also all the several sums of money 2 have given and bequeathed unto my wife, children and grandchildrent as is above directed.
It is admitted, by both parties, that the testator, neither at the time of making this will, nor at any time afterward&r was seized or possessed of any estate of inheritance whereof his wife could be endowed, and that Enoch, the son, has never received, for his own use, any -estate, either real or personal, under the said will; for that 'the estate which the testator had in the lands of which he was possessed when he made the will, and which it is supposed he intended te devise to His' said son, was a tenancy by the curtesy only. These facts, thus admitted to be made part of the case, if they might be proved by evidence, dehors the will in a court of common law, but not otherwise. It is admitted, also, that the personal estate of the testator is not sufficient to pay all the legacies bequeathed. And the question is, .whether, upon this state of facts, the legacy of $300, [167]*167bequeathed to the wife, shall abate in proportion to the other legacies ? and if the court shall be of opinion, that it shall abate, then, by the agreement, judgment is to be entered for the defendants, with costs, and if not, then for the plaintiff for $161.90, with costs.
In the case of Blower v. Morret (2 Vezey 420) Lord Chancellor Hardwicke, after taking a view of the oases upon this subject, says, in substance, that a bequest being prefaced by the words imprimis, or, in the first place, or the legacy being made payable immediately, or, out of the first moneys received, or, at a time certain and short, leaving other legacies to be paid after ihe year, as the law is, or, at a more distant day, or such other modes of expression, does not give such legacy a preference, or exempt it from a proportionable abatement, in case of a deficiency of assets. And he says, further, in the same case, that though the general principle be, that a legacy given in lieu of dower shall not abate, as was settled by Lord Chancellor Oowper in the case of Burridge v. Bradyl, (1 B. Wms. 127) yet that the application of this principle may depend upon facts connected with the bequest. If the wife, at the time of the making of the will, was entitled, or had an inchoate right, to any dower or thirds out of the testator’s estate, the legacy given in lieu thereof would have a preference, and would not abate, for that the bequest in that case was setting a price upon the- dower, and, if the widow thought fit to take it, it became a purchase of the dower, on her part, at a fixed price, and so was not bound to abate in proportion to other legacies, because it was a meritorious consideration given by her, and not a voluntary bounty or favor from the testator. But if she had no such title or inchoate right, as if she had a jointure in bar of dower before the making of tho will, it would be otherwise. And in such cases, the legacy being expressed to be in lieu of dower, is but a closing of everything, and the words are words of course, and amount to nothing if she was not entitled to dower.
[168]*168We might trace the same doctrine down through the English reporters of a later date, but, as they are no evidence of the law in this court, it would be improper to do so. This decision of Lord Hardwicke settles the law upon the case before us in all its parts. And even if his opinion, and his settling the law upon this basis, were of less authority than they are, the plain principles of common sense, I think» would conduct every reflecting man to the same conclusion.
And, if this ’be so, there certainly can be no doubt but that the fact of the widow’s having no title, or right inchoate, at the time of the making of the will, or after-wards, may be made out by evidence, dehors the will. This is a matter which cannot, in the common course of things, appear -upon the face of the will, and, therefore, if proved at all, it must be by evidence dehors. And to say, that the application of the testator’s estate in the payment of legacies shall depend upon this fact, and yet that this fact shall not be proved, would be an absurdity which the law never can countenance. And as to the second topic of argument, to wit, that these legacies to the children and grandchildren are charged upon the residue of the estate given to Enoch, after the legacy to the wife is paid, the fact is not so, the words of the will will not bear that construction. The legacy to the wife is as much, and as expressly charged upon this residue given to Enoch, as the legacies to the children and grandchildren. And though it be true, that if a legacy be charged upon a residue, and it should turn out that there should be no residue, the legacy must fail; yet if several legacies be charged upon a residue, and it should be insufficient to pay them all, then they must be paid^ro rata, as'far as it will reach, and that is the case here.
I am of opinion, therefore, that the judgment of the Court of Common Pleas must be affirmed, and that, by the agreement of the parties, judgment must be entered for the defendants, with costs.
[169]*169Rossell, J.
Peter Perrine, supposing himself the owner of real estate, devises it to his son Enoch. To his widow, he leaves “his household furniture, to be delivered immediately.” Then a legacy of “$300, to be paid in three months,” in lieu of dower. To his daughter $300, charged on the real estate he left Enoch. It appears he was only tenant by the curtesy of the land left to his son, and that he had no other real estate. The widow took possession of the furniture; and the remainder of the personal estate would be wholly swallowed up by the payment of the legacy left her, and the testator’s children, male and female, would be left without a dollar of his estate. The question is, does the legacy of $300, left the widow, abate proportion ably with that left the daughter ? or, is it of that description called a specific legacy, which must, at all events, be first paid, if assets are found to enable the executor to pay it ? It is urged that this is a specific
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Kirkpatrick, 0. J.
Peter Perrine, the testator, in and by his last will and testament, gives and bequeaths as follows, viz: “ Imprimis, I give and bequeath unto my well beloved [166]*166wife, Hannah, all the articles, goods and furniture that I received with her after our marriage, likewise the sum of three hundred dollars ; the said goods and furniture to be delivered to her immediately after my decease, and the said sum of money to be paid to her within three months after my decease; all the above mentioned property, and; the said sum of money, I give and bequeath unto her, my said wife Hannah, provided she shall accept the same in lieu of her right of dower, and not otherwise.”
“ Item, I give and bequeath unto my son, Enoch, his heirs- and assigns forever, all the lands now owned by me, together with all the residue of my moveable property of every description, not before bequeathed, provided he shall pay the several sums of money, as is hereafter directed.”
Then he gives to his seven daughters, and the children of a deceased daughter, $50 each, to-be paid within one year after his decease, and directs, that his son, Enoch, shall pay all his just debts, funeral expenses, the costs of executing' his will, and also all the several sums of money 2 have given and bequeathed unto my wife, children and grandchildrent as is above directed.
It is admitted, by both parties, that the testator, neither at the time of making this will, nor at any time afterward&r was seized or possessed of any estate of inheritance whereof his wife could be endowed, and that Enoch, the son, has never received, for his own use, any -estate, either real or personal, under the said will; for that 'the estate which the testator had in the lands of which he was possessed when he made the will, and which it is supposed he intended te devise to His' said son, was a tenancy by the curtesy only. These facts, thus admitted to be made part of the case, if they might be proved by evidence, dehors the will in a court of common law, but not otherwise. It is admitted, also, that the personal estate of the testator is not sufficient to pay all the legacies bequeathed. And the question is, .whether, upon this state of facts, the legacy of $300, [167]*167bequeathed to the wife, shall abate in proportion to the other legacies ? and if the court shall be of opinion, that it shall abate, then, by the agreement, judgment is to be entered for the defendants, with costs, and if not, then for the plaintiff for $161.90, with costs.
In the case of Blower v. Morret (2 Vezey 420) Lord Chancellor Hardwicke, after taking a view of the oases upon this subject, says, in substance, that a bequest being prefaced by the words imprimis, or, in the first place, or the legacy being made payable immediately, or, out of the first moneys received, or, at a time certain and short, leaving other legacies to be paid after ihe year, as the law is, or, at a more distant day, or such other modes of expression, does not give such legacy a preference, or exempt it from a proportionable abatement, in case of a deficiency of assets. And he says, further, in the same case, that though the general principle be, that a legacy given in lieu of dower shall not abate, as was settled by Lord Chancellor Oowper in the case of Burridge v. Bradyl, (1 B. Wms. 127) yet that the application of this principle may depend upon facts connected with the bequest. If the wife, at the time of the making of the will, was entitled, or had an inchoate right, to any dower or thirds out of the testator’s estate, the legacy given in lieu thereof would have a preference, and would not abate, for that the bequest in that case was setting a price upon the- dower, and, if the widow thought fit to take it, it became a purchase of the dower, on her part, at a fixed price, and so was not bound to abate in proportion to other legacies, because it was a meritorious consideration given by her, and not a voluntary bounty or favor from the testator. But if she had no such title or inchoate right, as if she had a jointure in bar of dower before the making of tho will, it would be otherwise. And in such cases, the legacy being expressed to be in lieu of dower, is but a closing of everything, and the words are words of course, and amount to nothing if she was not entitled to dower.
[168]*168We might trace the same doctrine down through the English reporters of a later date, but, as they are no evidence of the law in this court, it would be improper to do so. This decision of Lord Hardwicke settles the law upon the case before us in all its parts. And even if his opinion, and his settling the law upon this basis, were of less authority than they are, the plain principles of common sense, I think» would conduct every reflecting man to the same conclusion.
And, if this ’be so, there certainly can be no doubt but that the fact of the widow’s having no title, or right inchoate, at the time of the making of the will, or after-wards, may be made out by evidence, dehors the will. This is a matter which cannot, in the common course of things, appear -upon the face of the will, and, therefore, if proved at all, it must be by evidence dehors. And to say, that the application of the testator’s estate in the payment of legacies shall depend upon this fact, and yet that this fact shall not be proved, would be an absurdity which the law never can countenance. And as to the second topic of argument, to wit, that these legacies to the children and grandchildren are charged upon the residue of the estate given to Enoch, after the legacy to the wife is paid, the fact is not so, the words of the will will not bear that construction. The legacy to the wife is as much, and as expressly charged upon this residue given to Enoch, as the legacies to the children and grandchildren. And though it be true, that if a legacy be charged upon a residue, and it should turn out that there should be no residue, the legacy must fail; yet if several legacies be charged upon a residue, and it should be insufficient to pay them all, then they must be paid^ro rata, as'far as it will reach, and that is the case here.
I am of opinion, therefore, that the judgment of the Court of Common Pleas must be affirmed, and that, by the agreement of the parties, judgment must be entered for the defendants, with costs.
[169]*169Rossell, J.
Peter Perrine, supposing himself the owner of real estate, devises it to his son Enoch. To his widow, he leaves “his household furniture, to be delivered immediately.” Then a legacy of “$300, to be paid in three months,” in lieu of dower. To his daughter $300, charged on the real estate he left Enoch. It appears he was only tenant by the curtesy of the land left to his son, and that he had no other real estate. The widow took possession of the furniture; and the remainder of the personal estate would be wholly swallowed up by the payment of the legacy left her, and the testator’s children, male and female, would be left without a dollar of his estate. The question is, does the legacy of $300, left the widow, abate proportion ably with that left the daughter ? or, is it of that description called a specific legacy, which must, at all events, be first paid, if assets are found to enable the executor to pay it ? It is urged that this is a specific legacy, in lieu of dower, which is always favored as well as those in lieu of a debt; and that the testator’s will is to take effect according to his understanding at the time, and cannot be affected by his mistake in the amount of his property.
Legacies are general or specific. “ The former shall abate in proportion, notwithstanding a direction in the place or time of payment. But it may be otherwise on a strong intent; or if it- is a purchase of dower, and the wife entitled to dower.” 1 Bridgman’s index 572. 1 Per Wms. 778— “ If one grant an annuity out of the manor of Dale, to which he had no title, though it would not be a charge on the manor, yet it would be good against the person.” For the main intent of the testator was to give a legacy to J. S., the legatee shall have it, one way or the other, out of the land or the personal estate. A specific legacy, Lord Plardwicke says, (1 Atkins 4.17) “is a bequest of a particular chattel, distinguished from all others of the same kind, as a horse, a a silver cup, money in a certain chest,” &c.
The general principle then is, that legacies abate proportionably when there are not assets to satisfy the whole, with [170]*170the exception of specific articles, or where it is for the purchase of dower, when the widow is entitled to dower. This legacy of $300 to the wife, who was not entitled to dower, must be considered a general legacy, and she is not entitled to more than a rateable proportion with the other legatees.
Ford, J. concurred.