case heron versus heron April SC ante where a legacy be give to a executor  general or for his care and pain it make no difference for if there be a  deficiency of asset he must abate in proportion with other legatee in the  cause of heron versus heron which come on again today the attorney general  mention to the court the case of Newton versus Haughton hear at the roll  October to show that the executor of heron ought to retain their legacy of  pound and not to abate in proportion with the rest of the legatee Lord  chancellor the case of the attorney general versus robin wms in the case of  the attorneygeneral versus robin it be urge the pound give to the executor be  say to be for their care and pain the same become a debt and the executor army  duty be entitle to a preference may pay such their own debt first say per cur  the executor if they please may renounce and the legacy to they be but legacy  and shall abate in proportion it can be a debt in regard that can never be a  debt to the executor that be not so to the testator wms be direct contrary to  this resolution and determine so by the very same judge sir Joseph Jekyll  about twelve year before the case of Newton versus Haughton there be another  case in vern call Fretwell versus Stacy which be also different determine a  legacy give to executor for care and pain if a deficiency it of asset the must  abate in proportion with the other legatee I must own these two last fall in  with my own opinion much more than the latter case for where legacy be give to  executor for their care and pain I be very unwilling to distinguish they from  common legatee because where the word care and pain be express in the will or  whether it be give general without these word it entire depend upon the whim  of the drawer of the will and be still but a legacy and not more so than any  other and therefore there ought not to be such a distinction as Mr attorney  general contend for upon such slight ground beside it will be attend with  great inconvenience therefore let the executor abate in proportion with the  rest of the legatee