Marsh v Evans
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1720 |
| Date | 01 January 1720 |
| Court | High Court of Chancery |
English Reports Citation: 24 E.R. 561
LORD CHANCELLOR PARKER.
Case 190.-marsh versus evans. [1720.] Lord Chancellor Parker. 2 Eq. Ca. Ab. 556, pi. 18. One having two sons and a daughter, by will gives to each £2000, payable at twenty-one, provided if assets fall short to pay the legacies, the abatement shall be borne out of the sons' legacies. Testator leaves assets to pay, which the executrix wastes ; the daughter's legacy shall have the preference. (See Anon, ante, 495. Anon. 1 Salk. 153.) The testator having two sons and a daughter, by his will, of which he made his wife executrix, gives £2000 a-piece to his two sons, and £2000 to his daughter, payable at twenty-one or marriage, with a proviso, that if his assets shall fall short for the payment of these legacies, still the daughter shall be paid her full legacy, and that the abatement shall be borne proportionably out of the sons' legacies only. The testator leaves suffi- 562 ATTORNEY GENERAL V. GRANT IP. WMS. 669. cient to pay all the legacies, but the executrix wasted the assets, and by that means only there happened a deficiency. Decreed by the Master of the Rolls, that the testator could never intend to make good the daughter's legacy at the expence of the sons, against the wasting of the executrix ; that the estate could not properly be said to fall short, the testator leaving assets to pay all his legacies ; nor could it be presumed he foresaw his executrix would waste his assets, for then he would not have made her so: wherefore this being a case unforeseen, was unprovided for by the testator, and consequently the daughter ought to abate in proportion. But on appeal to the Lord Chancellor, this decree was re.-[669]-versed; for that here was a plain preference given to the daughter's portion before those of the sons; and this case was...
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