1. The legacy of $1,000 00 to the executor is, in every aspect of it, a general legacy; and as to abatement, in case of a deficiency of assets, must take its fate as such. It has been argued that the terms of the bequest are such that the legatee, in this case, is not a volunteer, but stands upon the footing of a purchaser. The authorities are abundant against this position. 2 Williams Ex., 1171; Fretwell vs. Stacy, 4 Vesey, 434; Attorney General vs. Robins, 2 P. W., 23; Herron vs. Herron, 2 Atk. 171. In all these cases the legacy was for “ the eare and pains” of the executor, language which is, in effect, the same as is used by Mr. Clayton. It will be observed that this is not a question whether the legacy is a good one, or whether it is dependent on the executor acting, but whether it is a legacy which may be called upon to abate, with other general legacies, on a deficiency of assets. The distinction adopted in the cases is, that to constitute a legatee a purchaser, he must have had a subsisting right at the death of the testator. He must have given up something due, some right actually in existence as a legal claim, at the time .the will took effect. The widow’s dower and a debt due from the testator to the legatee, are examples. Here is no debt. At the death, there was even no claim. It was at the option of the executor to act or not. Had this been a contract, binding upon both parties, made during the life of the testator, it might come within the rules; but, obviously, both the .testator and the executor were unbound. The former might, at his pleasure, have made a new will, and the latter have refused to qualify. For is there any harm done. The executor acts with his eyes open. He has time to examine into the status of the estate before he qualifies, and he may easily *331know Y/hether he will get the legacy in full. As a legacy, therefore, this must be considered a general legacy, liable, if necessary, to abate as such. The Court, in this case, seems to have considered this $1,000 00 as part of the expenses of administration. It is either a legacy or nothing. If the executor, in this case, gets a thousand dollars, is it not that much more than the law will allow? It is, then, a bounty of the testator — a legacy — and the only question is, is he a purchaser or not ? Suppose he fails to qualify, has he any claims against the estate ? Has he given up anything to take this? The expenses of administration are fixed by law. Such as' the law allows he is entitled to. Here is a fixed sum of $1,000 00, given as a legacy. We are not able to see the force of the argument which gives this the dignity of expenses. -It is a legacy, and nothing more, nothing less, given for good reasons and with good purposes, and standing upon the footing of other legacies, given for considerations and motives not amounting to a legal obligation, as past kindnesses, affection, moral obligations, etc.
2. The testator gives to Mrs. Clayton $1,500 00, in money, and various articles of personal property, and a life-estate in certain realty, with the privilege of taking $1,000 00, in lieu of the life-estate. ■ All this in one item of the will. In a distinct item, he declares that the “legacy” to his wife, is in lieu of dower. It seems to us conclusive, that by the. word “ legacy,” he meant all that he had given her in the former item. The life-estate in the house and lot is not, perhaps, technically, a legacy, but the liberty to choose, in lieu of it, $1,000 00, clears up even that difficulty. We are of opinion, therefore, that the entire bequest, in item third, constitutes the “legacy,” which was given her in lieu of dower. She has, first, her option to take her dower or resort to item third of the will. When she has done this, she may, at her pleasure, take the life-estate in the house and lot, or $1,000 00, as part of her legacy.
3. Nothing is better settled than that the wife is a purchaser of a legacy, which she chooses, under a will in lieu of her dower.
*332At the death of the testator, she has a legal right to her dower. It overtops all legacies, specific as well as general. It is a right superior even to the claims of creditors, and when she accepts the offer of exchange, tendered her in the will, and gives up her dower, she pays a valuable consideration for the portion which she accepts ; 1 Roper on Legacies, 432; Burredge vs. Brodyell, 1 P. Wm., 126; Blaner vs. Merett, 2 Ves., Sr., 420; Darenhill vs. Flecher, Ambler, 244; Norcott vs. Gordon, 14 Simmons, 258; Isenhart vs. Brown, 1 Ed. Chan. R. 441; Locock vs. Clarkson, 2 De Saussure, 476; Heath vs. Dendy, 1 Russ., 543; Williamson vs. Williamson, 6 Paige, 298. The cases in Ambler, 244; 2 Ves., Sr., 420; and 1 Russ., 543, even go so far ás to hold that this exemption from abatement, in case of a legacy, though general, in lieu of dower, in case of a deficiency of assets to pay debts and specific -legacies, exists, though the legacy be of greater value than the dower. How far this may be true, as against creditors, there seems to be no decision. Perhaps, in such a case, the amount of the excess might be of moment. That this exemption from abatement is good even as to creditors, does not appear to have been expressly settled. When it is a bona fide option, the principle would seem to go even to this extent.. If it is a purchase, the rceditors are not injured, since, in lieu of the legacy, the widow has thrown into the fund, out of which they are to be satisfied, her dower. The point, however, is not distinctly made in this case, and we do not settle it.
4. It is very plain that, if, at the death of the testator, he was not the owner of the farm on Alatoona creek, in Cobb county, given in the fourth item of the will to Charles C. Clayton, that legacy was adeemed. If he had sold it to some third person, or given it away in any binding manner, if would not have passed under the will. The legacy 'would have been adeemed; destroyed, is perhaps the most appropriate word. It would not have existed as the property of the testator, and could not, therefore, pass by his will.
Our statute is as follows: “ A legacy is adeemed or destroyed, wholly, or in part, whenever the testator, after making his *333will, during his life, delivers over the property, or pays the money bequeathed to the legatee, either expressly or by implication, in lieu of the legacy, or when the testator conveys to another the specific property, and does not afterwards become possessed of it, or otherwise places it out of the power of the executor to deliver over the legacy.” Code, section 2427. Evidently, the point of this section is, that if the property,' at the death, does not belong to the testator, then the legacy is destroyed. Now, it can make no difference who is the owner, if it has ceased to be the property of the testator. If he has delivered it over to the legatee in such a manner as to divest himself of the power to dispose of it before his death, then'the legacy, as such, is destroyed. It does not pass under the will, for the simple reason that it has passed before the death. It is not, therefore, a legacy at all, and cannot be abated. It stands upon the footing of a gift during life.
5. But whether this be so or not, is a question of fact, to be decided by a jury under the evidence. If the testator, after making his will, “delivered over” this tract of land to Charles Clayton, with intent, (to be made apparent by the facts as they occurred,) to part with his own right and dominion over it, at that time, then it ceased to be his; he gave it away during his life, and by that act he destroyed the legacy, and it did not pass under his will, but by his act during life. We express no opinion as.to what the facts do establish. That is for a jury to determine, under the charge of the Court, as to the law, as we have declared it. By the peculiar language of our Code, sec. 2427, it is provided that “the delivery over of the property to the legatee, during the life-time of the testator, is an ademption or destruction of the legacy. As a matter of course, this “ delivery ” must be with intent, by the testator, to part, then, irrevocably with his own dominion and ownership of the property, and-to pass it into the legatee. We think the Court ought to have left the facts of this■ transaction to a jury, charging them as to the law. If, during his life, the testator had delivered over this Alatoona creek ■ place, in Cbbb county, to Charles C. Clayton, with intent then and there to pass the right and *334dominion of it, irrevocably, out of himself to Charles C., then it passed to him as a gift, and not as a legacy, under this will.
Judgment reversed.