We are satisfied that the surrogate came to a right conclusion in rejecting the claim of the appellant to any share in the surplus of the proceeds of the real estate, devoted by the testator to the payment of the legacies bequeathed by him to the respondents. We will very briefly specify some of the grounds on which this opinion rests.
1, The legacies of the respondents were made a lien on the real estate in question. The testator directed the estate to be sold, and that those legacies should be paid out of its proceeds: while the legacy of the appellant was not only not made a lien on the land, but was excluded by a special exception. By the will, therefore, the land was a fund devoted to the payment of the legacies in question, to the exclusion of that bequeathed to the appellant. The testator foresaw that there might be a surplus ; and also, that there might possibly be a deficiency. And he therefore provides that, in the event of a surplus, “ all the legacies before mentioned” shall be proportionably increased; and in the event of a deficiency, that “ the said legacies” shall be proportionably diminished. The question now arises, what legacies the testator intended to embrace in the words “all the *317legacies before mentioned ?” And it seems to us that the answer is very clear. He obviously meant all the legacies before mentioned, as being liens upon, and as entitled to be paid out of the avails of, the real estate, devoted by the will to this purpose. It is to be borne in mind, that the same legacies which the will authorizes to be increased, are by the same instrument directed to be diminished, should there be a deficiency in the fund. Now, it is easy to see why such a pro rata rule of deduction should be applied to those legacies which are to be paid out of the fund: but no reason can be assigned why an independent legacy, wholly unconnected with the fund, should be affected either by a deficiency or a surplus.
2. Again, it should not be overlooked, that the testator does not denominate the bequest to the appellant, a “ legacy,” but a “ portion:” and therefore the expression “ all the legacies before mentioned,” cannot properly be referred to what he denominates a “ portion,” as its legitimate antecedent.
3. We do not regard the bequest to the appellant as a legacy, which the testator ever intended his executors to pay. And hence there was no provision in the will for its payment, either out of the proceeds of the real estate, or any other fund. The intent of the testator was to forgive the appellant the debt which was due from him. We are aware that the leaning of the courts has been in favor of construing legacies to be pecuniary, instead of specific, in order to prevent the failure of the bequest: and some cases where this rule has been enforced almost in defiance of the testator’s intention, are cited by Oh. Kent, in Walton v. Walton, (7 John. Ch. Rep. 283.) In these cases, however, the court regard the testator as merely designating the fund out of which he desired his executors to pay the legacy, a hypothesis utterly inconsistent with the facts of this case, and which alone would be sufficient to exclude this legacy. None of the cases, however, have come up to this. On the contrary, two .cases are cited on page 264, which would assign this legacy to .the class of specific bequests: One from 4 Yesey, 555, where the testator bequeathed “8000 pounds,” the amount of a banker’s .note, and the other from 9 Yesey, 360, where the *318legacy consisted of “ the sum or sums of money, which the executors receive on a note of 400 pounds.” If, however, it were true that the form of words employed by the testator in this case, were such as had been held in other cases, to be descrip-t tive of a pecuniary legacy, still, such a construction would be in direct hostility to the entire context of this will. For it may well be asked, whjr should the testator desire his executors to. pay the appellant just the amount of the principal and interest of the mortgage and note due from the appellant to him ? Did he intend to collect these securities, himself, or that his executors should collect them, and then pay back to the debtor, in the form of a pecuniary legacy, the exact amount of the debt and interest? Did he, in the language of the authorities, mention the mortgage and note as a fund to be collected by his' ex-, ecutors, out of which, when collected, the legacy should be paid by them ?. It seems to us that an intention so absurd should not be imputed to the testator. Again, the appellant might obtain a bankrupt’s or insolvent’s discharge, and thus extinguish the deb.t due to the testator. In such an event, did the testator intend his executors- to pay the amount of the debt as a legacy, notwithstanding the debt itself should be discharged ? We think not. Yet such would be the consequence of holding this to be a pecuniary legacy. On the whole, we are of the opinion, that the testator merely meant to forgive the appellant’s debt—and that it was not the intention of the will that he should share any part of the proceeds of the real estate in question.
The decree must be affirmed, and the proceedings remitted to the surrogate, &c. with such costs as the code'prescribes.