When testator's estate is insufficient to pay all bequests provided for in his will, they normally abate in a definite order. For example, specific and demonstrative legacies are payable in toto before general legacies, which in turn must be paid before residuary gifts of personalty. Specific devises are free from abatement to pay pecuniary bequests; the same has been said of residuary devises. If there are insufficient assets to satisfy any class in full, bequests therein abate pro rata.

But testator may vary the order of abatement, may provide for the prior payment of any bequest he chooses. The most obvious case occurs when he states specifically what legacies shall be preferred, and to what extent. Express statements of intention to prefer do not provide the only basis for departing from the usual order of abatement. The courts have inferred an intention to prefer certain types of legacies from the nature of the bequest, sometimes looking to extrinsic circumstances to aid in the interpretation, and occasionally finding a further basis in policy. These additional rules of preference have become so fixed and accepted as to be automatically applied, with no serious inquiry as to their basis and validity. This comment purposes not only to classify these preferred bequests but also to examine the bases on which the preferences are founded and determine, if possible, the adequacy of those bases.

The types of bequests to be discussed are, (1) legacies based on valuable consideration; (2) legacies in lieu of dower; (3) legacies based on a moral obligation; (4) legacies for support and maintenance of dependents; (5) legacies for burial plots, charities and memorials; (6) residuary bequests of realty blended with personalty in the residuary clause; (7) residuary devises given when testator anticipated an insufficiency of personalty to pay pecuniary bequests. Except as otherwise indicated, the discussion will concern only abatement between legacies of the same class.