§ 28-53-107 — Abatement

(a) Except as provided in subsection (c) of this section, shares of the distributees shall abate for the payment of claims, legacies, the family allowances, the shares of pretermitted heirs, or the share of the surviving spouse who is entitled to and elects to take against the will, without any preference or priority as between real and personal property, in the following order: (1) Property not disposed of by the will; (2) Property devised to the residuary devisee; (3) Property disposed of by the will but not specifically devised and not devised to the residuary devisee; and (4) Property specifically devised. (b) (1) A general devise charged on any specific property or fund, for purpose of abatement, shall be deemed property specifically devised to the extent of the value of the thing on which it is charged. (2) Upon the failure or insufficiency of the thing on which it is charged, it shall be deemed property not specifically devised to the extent of the failure or insufficiency. (c) If the provisions of the will or the testamentary plan or the express or implied purpose of the devise would be defeated by the order of abatement stated in subsection (a) of this section, the shares of distributees shall abate in such other manner as may be found necessary to give effect to the intention of the testator.

Legislative History

Acts 1949, No. 140, § 162; A.S.A. 1947, § 62-2903.