The opinion of the court was delivered by
Gibson, C. J.A pecuniary legacy, may undoubedly be exempt from abatement, as in the case of a wife or child destitute of other provision, or of a legacy given in lieu of a dower, or of a preference manifestly intended. But these cases are few in number, dependent on peculiar circumstances, and attended with strong expressions of intention. They are, in fact, exceptions to the general rule that equality is the highest equity, which aChancellor is eager to enforce,wherever it is not controlled by countervailingequi*385ties, or by an intent too manifest to be disregarded. The interest of the widow,which is frequently an obstacle to the enforcement of it, is,not involved here. Ample provision was made for her, by the bequest of a third of the personal estate, a devise of land for life, or during widowhood, and an annuity charged on the fund in question, which could not. however be affected by contribution among the children, the inquiry being not whether the annuity shall abate with the rest, but whether the other legacies shall bo brought into average. Putting her interest out of view, then, what is there peculiar in the case? Both the land and the person of the devisee, are charged with the twenty-two hundred pounds, which is directed to be paid out. Out of what? Undoubtedly theland devised to the son, who is thus made a purchaser of the shares of the other children. By a codicil made a few years afterwards, the testator gave to the devisee, over again, the residue after deducting that sum, which is entirely indicative of an intent, that till satisfaction made, the shares of all the children should remain in the land. But the five hundred pounds, part of the gross sum, are expressly charged; and if the seventeen hundred pounds are not charged likewise, the consequence to the children of the first wife must be postponement instead of preference. Now having charged the land and the person of the devisee too, it is unreasonable to suppose the testator ever anticipated, the unparalleled depreciation of real estate, that occurred in a few years from the date of his will, or dreamt that any part of these legacies would not be paid. Even so late as eighteen hundred and twenty-one, we find from the codicil already mentioned, that he supposed the land to be more than sufficient. There is nothing, then, to indicate an actual intent to prefer a particular class of them, except what is urged by the plaintiff as sufficient evidence of it, a direction that the five hundred pounds shall not be distributed among the children of the second wife, till the seventeen hundred pounds arepaid to the widow and the children ofthefirst. But though this direction is given with an appearance of emphasis, it could not, as already said, have been suggested by an apprehension of deficiency, nor consequently with a view to provide for such an event. A motive distinct from any presumption of an intended priority of right, may be found in the fact that the children of the first marriage, were more advanced in years and therefore more immediately in need of their patrimony to establish them in business or a profession. Nor is there any thing more solid in the exemption of the five hundred pounds from interest, before the expiration of the time limited for the preceding payments. An obvious reason for that is, the interest was intended to make up the widow’s annuity after the seventeen hundred pounds should be exhausted, before which, it would not be wanted. What weight then is due to the alted direction for priority of payment? In regard to that* the rule *386of the court is laid down by LordHardwicke, in clear and satisfactory terms. “It is said there are cases,” he remarked, “wherein the court has gone a great way, to level legatees, and make them abate in proportion, as in Brown v. Mien. I do not remember the state of that case, and there may lie a difference in the state of it; for if the testatorsay “imprimis,” or “in the first place I give such a legacy,” that amounts Only to the order in which he expresses his gifts in the will — to nothing more. But if he had said “to be paid in the first place,” audit had been in that case a provision eor a wipe, I should havedoubted of that determination, and should have been inclined to thinkitwas a declaration ofhis intent that the provision for his wife should come out of the personal estate, and be paid in the first place, because there is ground for that from the preference to a wife and children uNERoyiDED por. If indeed in that will, they all stood in equal degree, it was a sufficient groundfor the court not to presume a preference: but it was a provision for a wife or child unprovided, that is different.” Lewin v. Lewin, 2 Ves. 415. The case of Brown v. Allen which was the subject of these remarks, is reported in Vern. 31, but briefly and unsatisfactorily, Lord Nottingham being represented to have said in a few words, that “where a man devises several legacies, as one hundred pounds to one, and fifty to another, &c. there though he directs the legacy of one hundred pounds to be paid in the first place, yet if the other legacies fell short, the legatee of the One hundred pounds mustmáke a proportionate abatement of his legacy:” in other words that a naked direction of the sort gives priority of time, but not priority of right, as has since been determined in Blower v. Morret, 2 Ves. 429. Then to try the matter by the rule of Lord Hardwicke, as just stated, the interest of the widow being out of the case, and the children who claim a preference being provided for, while all stand in an equal degree of consanguinity to the testator, the direction for priorty of payment, is insufficient to raise a presumption that a preference was intended in point of right. The plaintiff and the other children of the first marriage have had a monopoly of the personal estate along with the widow; and if they' ate to come in for a preference, as regards this fund, the children of the second marriage will have been left absolutely destitute — a consequence which the testator could never have intended. Had they even Stood in equality of provision, the legacies must have abated in proportion; but as the inequality observable in the case, is prejudical to them in respect of the other parts of the estate, it strengthens their claim to an equality of participation jn this. They ought, therefore, to have been let in on equal terms.
Judgment reversed and judgment for the plaintiff for two hundred dollars.