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(c) Conditional direction to convert personalty into realty. In the event my son R——— is living at the time of my death, I direct my executor hereinafter named to sell all my stock holdings in the Company, being

shares which are now standing in my name, for cash and without order of court, and invest the same in a tract of land in the county of, state of, suitable for farming purposes, and cause, if necessary, to be erected thereon such permanent improvements as shall put such tract in condition for use as a home place and for farming purposes. All the proceeds derived from the sale of said stock shall be used for such purposes. I hereby give and devise to my son R, in the event hereinbefore mentioned, the said property purchased from the proceeds of the sale of stock as before mentioned for the term of his natural life and upon his death I give said property in fee simple to my son T. In the event my son R shall die prior to the time of my death, then my stock holdings hereinbefore mentioned in the Company shall pass to my son T- absolutely and unconditionally.

No. 17.

CHARGES FOR PAYMENT OF LEGACIES.

(a) Charging estate generally.

(b) Charging payment of legacies upon personalty.

(c) Charging payment of legacies upon realty generally. (d) Charging payment of certain legacy upon specified realty.

General Note.-A specific legacy, which is one of particular property specially designated, passes such particular property only. Demonstrative legacies are for a designated amount of money or property to be paid out of a specified fund or property. A general legacy is merely of an amount of money or property to be paid out of the estate generally. A residuary legacy is, commonly speaking, the personalty not otherwise effectually disposed of by the testator in his will. If the fund out of which a demonstrative legacy is to be paid should fail, it then becomes in effect a general legacy. Should the assets of the estate be insufficient to pay the debts the legacies must be reduced. As to

order of reduction, see § 690. The order of reduction or abatement may be altered by specific directions of the testator in his will, either by instructions as to the payment of debts, see ante, form No. 7 and notes; or by provisions as to abatement, see, post, form No. 18 and notes. A mere direction by the testator that all debts and legacies shall be paid, if it can be fairly construed to refer to the personalty, will not be deemed to be a charge upon the realty, see § 787. And as to the effect of doubtful expressions, see § 788. The personal estate of a testator is primarily resorted to to satisfy all legacies, see § 785. The testator, however, may desire that a certain general legacy, or all general legacies, shall be paid out of specified personalty, or that the personalty shall be relieved of such burden in one or more instances and that the payment of a legacy or legacies shall be charged upon designated realty. In all such cases the testator should clearly express his intention, see §§ 785, 792, 793.

(a) Charging estate generally. I direct that all the bequests hereinbefore set forth be first paid, and after the payment thereof I bequeath and devise the remainder of my estate, real and personal, unto, etc.

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I bequeath to CD the sum of direct that this legacy shall be a charge upon all the estate, real and personal, of which I may die possessed, and shall be paid and satisfied prior to the payment or satisfaction of all other dispositions herein made.

I bequeath the sum of dollars to C D and direct that if my personal estate be insufficient to pay the same, it shall be a charge upon and be paid out of my real estate, and if necessary, my executor is directed to sell such of my real estate as may be necessary for the purpose.

Note. See § 786. As to forms for charging the payment of debts generally, see, ante, forms No. 7 (a) and 7 (b).

(b) Charging payment of legacies upon personalty. I direct that the legacies hereinbefore set forth shall be paid out of my personal estate only, none of said legacies to be a charge upon any real property of which I may be possessed at the time of my death, my personal estate to be resorted to, for the payment of said legacies, in the

following order: Cash in bank, personalty not herein specifically devised, my stock holdings in the

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pany, personalty bequeathed to my residuary legatee, and thereafter, if necessary, any personal property of which may die possessed.

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Note.-Personal estate is primarily liable for payment of legacies, see § 785. As to charging the payment of debts upon specific personalty, see, ante, form No. 7 (c).

(c) Charging payment of legacies upon realty generally. Having herein, either specifically or otherwise, disposed of all my personal estate now owned or which may be hereafter acquired, I direct that the general legacies hereinbefore set forth (or certain general legacies which the testator may specially mention) be a charge upon all the real estate of which I may die possessed, whether herein specifically devised or otherwise disposed of, and that said legacies shall not be a charge upon my personal estate, even though my real estate be insufficient to pay the same; and I hereby direct my executor to sell any or all of the real estate of which I may die possessed as may be necessary for the purpose of satisfying said general legacies.

Note. As to charging specific realty with the payment of debts, see, ante, form No. 7 (d).

(d) Charging payment of certain legacy upon specified realty. I bequeath the sum of dollars to C— D—— and direct that the payment thereof be a charge against the real property hereinafter described and conditionally devised to A- B————, said A——— B— to have the option of paying at the time of the distribution of my estate, said legacy to CB and taking said realty free from the charge therefor; but in the event said A B shall fail so to do, then I direct my executor to sell said property and, out of the proceeds, pay said legacy to C— D—, any amount remaining after

such payment to pass and be paid to A- B———. I hereby devise that certain real property above mentioned and more particularly described (insert description) to A-B subject to and charged with the payment of

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Note. For form charging specific realty with the payment of debts, see, ante, form No. 7 (d).

No. 18.

DIRECTIONS AS TO ABATEMENT OF LEGACIES.

(a) That legacy shall not abate.

(b) Fixing order of abatement.

(c) Directions as to specific legacies and devises.

General Note. As to abatement of legacies generally, see §§ 690-707. Abatement of legacies is their reduction occasioned by the insufficiency of the assets of the estate to pay all debts and legacies. If not otherwise specified in the will, legacies abate in the following order: residuary, general, then demonstrative and specific, a demonstrative legacy partaking of the character of both a general and a specific legacy, see § 690. An exception to the rule that general legacies abate proportionally is where they are given for a valuable consideration, such as for the relinquishment of a debt or to a widow in lieu of dower, or where property is disposed of under a power of appointment, see §§ 697-700. The order or manner of abatement, however, may be controlled by directions of the testator in his will, see § 691.

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(a) That legacy shall not abate. I bequeath the sum of dollars to my beloved wife M and direct, should the assets of my estate be insufficient to pay my debts, funeral charges, expenses of administration and the legacies herein given, that all other legacies shall first abate and that said legacy to my wife shall be paid in full.

(b) Fixing order of abatement. Should the assets of my estate be insufficient to pay my debts and the legacies herein given, I direct that said legacies shall abate in the following order: First, the legacy of - dollars herein given to my nephew R; second, the personalty herein bequeathed to my residuary legatee, and, third, the gen

eral legacies herein given to my nieces and nephews, R——————, B——————, J——, D——— and S, abatement among Rthis last-mentioned group of legacies to be pro rata.

Note. See §§ 692, 693.

(c) Directions as to specific legacies and devises. Should the assets of my estate not herein specifically bequeathed or devised be insufficient to pay the debts and expenses thereof, I direct that such deficiency be first satisfied out of the specific legacy of stock of the

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pany herein given to my niece B—, next out of the specific legacy of bonds of the——————— Company herein given to my nephew R, next pro rata out of the remaining specific legacies herein given, and, lastly, pro rata out of the specific devises herein made.

Note.-See § 695.

No. 19.

PROVISIONS TO PREVENT LAPSE.

(a) Should beneficiary die before testator.
(b) Gift upon condition.

(c) Gift dependent upon contingency.

(d) Object of gift failing.

General Note.-As to lapsed legacies and devises generally, see §§ 749-781. A lapsed legacy is one which fails because of the death of the beneficiary prior to that of the testator, or the non-happening of some contingency or the non-performance of some condition precedent, see §§ 749, 756; or where the object of the gift fails, see § 766. The testator, however, may, by provisions in his will, prevent lapse or, in other words, substitute a second beneficiary should the gift fail to the first, see §§ 770, 771. Unless otherwise provided, lapsed legacies and devises accrue, as a general rule, to the benefit of the residuary legatee and devisee, see §§ 777-781. In some jurisdictions, however, statutes have been enacted to prevent lapse, so that unless otherwise directed, the property would pass to the children or heirs of a beneficiary dying before the testator, see §§ 752-755. Legatees and devisees should not be substituted by the mere use of words of inheritance such as "or his heirs" or "and his heirs," since they are generally held to be words of limitation, merely descriptive of the estate given, see §§ 774,

III Com. on Wills-55

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