In this case Maria Liddle, a legatee under the will of the deceased, has appealed from the decree of the court directing the executors to pay to Mary Anderson a legacy, provided for in the will, in preference to that of the appellant.
The only question of importance presented is, whether the decree is in accordance with the intention of the testator, at the time when the will was made. So far as material to this decision, the will provides, as follows: “First: I give, bequeath and devise to my executors hereinafter named, all the property, both real and personal, of which I may die possessed after the payment of my debts and the expenses of administration, in trust for the following purposes:
1. To pay to my wife Mellissa Sears, during her life, such sums of money as my said trustees may in their sound judgment and discretion think reasonable and sufficient for her maintenance having regard for her position and station in life. Said sums to be paid monthly, beginning at the date of my decease.
2. “To pay to my sister Maria Liddle during her life for the support of herself and her children living with her, the *197sum of fifty dollars each month, beginning with the date of my decease.
3. “To pay to my nurse Mary A. Anderson, the sum of two hundred and fifty dollars as soon as there shall be sufficient moneys in their hands; said two hundred and fifty dollars being intended by me as a gift to her for her faithful services during my late sickness, and in addition to compensation for such services.”
It will be observed that, after providing for the payment of his debts and the expenses of administration, the first provision is for his wife, and she shall be paid such sums monthly, as his executors or trustees in their sound discretion may think reasonable and sufficient for her maintenance, having regard for her station in life. Next, provision is made for the sister, who, for the support of herself and children, is to be paid $50 “each month, beginning with the date” of the testator’s decease. Each of the foregoing bequests constitutes an annuity, to continue during the life of the legatee.
Having made provision for those, who upon the consideration of love and affection, had a bona fide and substantial claim upon his bounty, and thinking, doubtless, that he had ample means, and more than sufficient for their support and maintenance, the testator, provided for the gift to the nurse, which was to be paid as soon as the executors should have sufficient money in their hands. These legacies are all specific, and, if the estate had been sufficient to meet all the bequests of the testator, the executors, doubtless, would have experienced little difficulty in performing their trust. The record shows, however, that the estate, after payment of the debts of the testate, expenses of administration and a monthly allow- ’ anee to the widow during administration, which lasted about a year, was well nigh exhausted; that after such *198payments were made, although the value of the property of the estate was $49,311.62, but $617.87 remained; and that the sister and legatee of the deceased, Maria Liddle, has received nothing out of the estates although at the time of making the decree complained of, twelve months had elapsed since the death of the'testate. It is apparent that all the legacies cannot be paid, and the question is, who is entitled to preference, under the terms of the will, as between the legatees to this controversy ?
It seems clear that the testator himself indicated who should receive preference in such a contingency, for in disposing of his estate, he first provided for his wife. She is the first legatee named in the will, and this is what a man naturally would do in disposing of his property in contemplation of death, because, from the very nature of the marital relation, the wife’s claims upon him, after payment of his debts, are paramount to all others, and because of the solemn duty which devolves upon a husband, by virtue of the marriage contract, to support and care for the wife — a duty which the husband, possessed of property, cannot fail to perform without doing violence to his own conscience. Next there is a provision for his sister and her children. This is also quite natural, because of the tender and affectionate feelings which usually exist between brother and sister. Then, after those, who are entitled to his first and highest consideration have been provided for, doubtless, under the apprehension that his property would warrant it, the testator made the bequest to the nurse, for her faithful service during his sickness. The language employed, however, does not imply and it cannot be presumed that the testator intended that this bequest to a stranger should, under any contingency, receive preference over those made to his wife and sister. Such a presumption would be opposed to the *199natural feeling or affection which a man has for his wife and next of kin. The intention of the testator doubtless-was that the legacy, to the nurse, should be paid as soon as money came into the hands of the executors which was not necessary for the purpose of paying his debts and expenses of administration, and the monthly sums bequeathed to his wife and sister, as they became due, and such intention must govern. E. S. 1898 Sec. 2767.
The bequest to his sister was an annuity, which commenced at the testator’s death, while the bequest to the nurse was a legacy which was not due until one year after his death. E. S. 1898 Sec. 2815.
We are of the opinion that the bequest to the sister should be paid for a period of twelve months, the time of administration, and that the court erred in decreeing that the legacy of Mary A. Anderson should be paid in full forthwith.
The case must be reversed and the cause remanded, with directions to the court below to set aside its former decree, and enter a new one, in favor of Maria Liddle for $600, and in favor of Mary A. Anderson for any sum, not exceeding the amount of her legacy, remaining after payment of any balance of expenses of administration. The appellant to be awarded costs. It is so ordered.
Zane, C. J. and Miner, J., concur.