Case v. Case

Where the personal estate is only sufficient for payment of debts and charges, a pecuniary legacy is lost. If there is a residuum, but not sufficient for the payment of such legacies in full, they must abate in proportion, unless special provision be made by the testator. But the legacies, by the last will and testament of the deceased, in the present case, are specially charged upon the personal estate; and if that should prove insufficient, upon certain lands devised to be sold, and no further; — therefore, provision made to pay those legacies out of lands specifically devised, is against law: And the judgment of the Superior Court, so far,as it reverses the decree of probate, ordering *285lands specifically devised to be sold for tbe payment of pecuniary legacies, was right; — but tbe Superior Court erred, in adjudging that tbe lands thus devised should stand charged to make contribution for payment of tbe pecuniary legacies, and in proceeding to apportion each devisee’s and legatee’s part to pay, and granting execution therefor. This part of tbe judgment involves tbe principle, that pecuniary legacies may be charged upon lands specifically devised: But tbe contrary of this, is tbe true ground for reversing the decree of probate.

It is tbe province of tbe Superior Court, on appeals made from decrees of probate, to fix the principles of law, for the direction of tbe Courts of Probate; but it seems not to be authorized to proceed through all tbe forms to a complete settlement of estates, as a prerogative court. Tbe execution of tbe law, as ascertained by tbe Superior Court, appertains to tbe courts of probate.

If tbe Superior Court is authorized, on such appeals, to proceed to a complete settlement of estates, yet tbe manner of doing this, in tbe present case, by granting executions against tbe devisees and legatees, to compel them to contribute their proportion, is exceptionable; for as a court oWw, m which capacity íhe appeaVwas made, it concerned tbe court to proceed according to tbe forms, which are prescribed for tbe settlement of estates, and are tbe rule of tbe Courts of Probate; but no snch mode of proceeding is known in tbe law, in a case of this natnre.