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$ 673. Describing property in the residuary clause, effect of. § 674. Residuary clause, descriptive words: “Rest,” “residue,"
and remainder." § 675. The same subject: “Balance.” § 676. The same subject: “Not otherwise disposed of.” § 677. Residuary clause : Construction controlled by intention:
Expressions considered. § 678. As to real property acquired after the execution of the
will being covered by the residuary clause. § 679. What passes under residuary devises and bequests. $ 680. The same subject: Presumptions. § 681. The same subject: Lapsed and void legacies. $ 682. The words “cumulative” and “substitutional" as ap
plied to legacies. § 683. Intention controls as to whether or not legacies are cumu
lative or substitutional. $ 684. Bequeathing a specific article twice. $ 685. Two gifts, in the same will, to one person: When cumula
tive. § 686. Two gifts, in different instruments, to the same persons :
For same amount and same expressed reason, not
cumulative. § 687. The same subject: With different reasons expressed, or
for different amounts, are cumulative. $ 688. The same subject: When given simpliciter, are cumula
tive. $ 689. Substituted or additional legacies : Subject to incidents
of first legacies.
8 645. Legacies Classified.
The two main classes of legacies are general and specific, the distinguishing features being that the latter is a gift of specified property distinguishable from the balance of the estate, while the former is a gift not subject to identification, but to come out of the general assets of the estate. There is another kind of legacy, however, termed demonstrative, which, although partaking of the nature of both the general divisions, is often designated as a third class. Thus a demonstrative legacy is a gift of money or other property charged on a particular fund in such a way as not to amount to a gift of the corpus of the fund, or to evince an intent to relieve the general estate from liability in case the fund fails.3
There are other forms of legacies, but which belong to one or the other of the classes named, such as annuities, and residuary, cumulative, and substitutional legacies. Also gifts characterized by the interest conveyed, such as vested or contingent, in fee, for life, or remainder.
The importance of determining the class to which a legacy belongs lies in the fact that thereby, no contrary intention appearing in the will, is fixed the question of abatement, ademption or lapse.
8 646. Intention of Testator Prevails: Specific Legacies Not
Favored. In construing whether a legacy is general, specific or demonstrative it must be remembered that the will of the testator is the law of the court, and that the testator's intention, so far as it is lawful, is his will. It is there
i In re Parson's Estate, 150 Iowa Chancellor that though various at230, 129 N. W. 955. See $ 31. tempts have been made at defini. 2 Kramer V. Kramer, 201 Fed.
tions, there were objections to 248, 119 C. C. A. 482.
most of them; and it would, I
think, serve no good purpose to It was said by Meredith, C. J., in
go through the cases for the purRe Mackey, 6 Ont. Law Rep. 292:
pose of extracting from them such "It is difficult to determine what
definitions as have been given.” a specific legacy is, or to state
3 Nusly v. Curtis, 36 Colo. 464, the test for distinguishing such
118 Am. St. Rep. 113, 10 Ann. Cas. a legacy from a general bequest, 1134, 7 L. R. A. (N. S.) 592, 85 and it has been said by a Lord Pac. 846.
fore the intention which must be ascertained.° If compatible with the language used, legacies will be construed as general or demonstrative, but if the language is clear and unequivocable and plainly evidences an intent to create a specific legacy, the court must give effect to such language and intent. Specific legacies are not favored by the law and the courts are adverse to construing legacies as specific except when the language of the testament makes such construction necessary. The reason
4 Macdonald v. Irvine, L. R. 8 Ann. Cas. 1915B, 1131, 79 S. E. Ch. Div, 101; Vickers v. Pound, 1026. 6 H. L. Cas. 885, 28 L. J. Ch. 16; 6 Nusly v. Curtis, 36 Colo. 464, Harper v. Bibb, 47 Ala. 547; Nusly 118 Am, St. Rep. 113, 10 Ann. Cas. v. Curtis, 36 Colo. 464, 118 Am. St. 1134, 7 L. R. A. (N. S.) 592, 85 Rep. 113, 10 Ann. Cas. 1134, 7 Pac. 846; Hailey V. McLaurin's L. R. A. (N. S.) 592, 85 Pac. 846; Estate, 112 Miss. 705, 73 So. 727; School Dist. No. 1 v. International Norris v. Thomson's Exrs., 15 N. J. Trust Co., 59 Colo. 486, 149 Pac. + Eq. 493, 16 N. J. Eq. 542; May v. 620; Morton V. Murrell, 68 Ga. Sherrard's Legatees, 115 Va. 617, 141; Meily V. Knox, 191 Ill. App. Ann, Cas. 1915B, 1131, 79 S. E. 126; Evans v. Hunter, 86 Iowa 1026. 413, 41 Am. St. Rep. 503, 17 6 Innes V. Johnson, 4 Ves. Jun. L. R. A. 308, 53 N. W. 277; Guthrie 568; Simmons v. Vallance, 4 Bro. v. Guthrie's Exr., 168 Ky. 805, 183 C. C. 345; Davies v. Fowler, L. R. S. W. 221; Dryden v. Owings, 49 76 Eq. 308; Kenaday V. Sinnott, Md. 356; White v. Winchester, 6 179 U. S. 606, 45 L. Ed. 339, 21 Sup. Pick. (Mass.) 48; Metcalf v. First Ct. 233; Harper v. Bibb, 47 Ala, Parish in Framingham, 128 Mass. 547; Nusly v. Curtis, 36 Colo. 464, 370; Hailey v. McLaurin's Estate, 118 Am. St. Rep. 113, 10 Ann, Cas. 112 Miss. 705, 73 So. 727; Asbury 1134, 7 L. R. A. (N. S.) 592, 85 Pac. v. Shain, 191 Mo. App. 667, 177 846; Morton V. Murrell, 68 Ga. S. W. 666; Cramer v. Cramer, 35 141; Gardner v. McNeal, 117 Md. Misc. Rep. 17, 71 N. Y. Supp. 60; 27, Ann. Cas. 1914A, 119, 40 Matter of Delaney's Will, 133 App. L. R. A. (N. S.) 553, 82 Atl. 988; Div. 409, 117 N. Y. Supp. 838; Briggs v. Hosford, 22 Pick. (Mass.) affirmed, 196 N. Y. 530, 89 N. E. 288; Humphrey V. Robinson, 52 1098; Adair v. Adair, 11 N. D. 175, Hun (N. Y.) 200, 5 N. Y. Supp. 90 N. W. 804; Lake v. Copeland, 164; Matter of Bergen, 56 Misc. 82 Tex. 464, 17 S. W. 786; May v. Rep. (N. Y.) 92, 106 N. Y. Supp. Sherrard's Legatees. 115 Va. 617, 1038; affirmed, Bergen v. Wyckoff
for this rule is that it is more reasonable to presume that the testator intended the legatee to receive an absolute benefit rather than a conditional one, namely, that the testator must die possessed of property specifically bequeathed. Those named as legatees in a will are naturally those to whom the testator is bound by sentiments of family, affection and duty, and such feelings once existing, are presumed to continue. Therefore, that the legacy should be effective only in the event that the testator continues to possess the property until the time of his death, rather than that the sentiments which prompted the gift remain unchanged, requires a specific legacy to be expressed in language which clearly conveys that intention.7
(In re Snedecker), 125 App. Div. 929, 110 N. Y. Supp. 1146; Noon's Estate, 49 Ore. 286, 88 Pac. 673, 90 Pac. 673; Blackstone v. Blackstone, 3 Watts (Pa.) 335, 27 Am. Dec. 359; Snyder's Estate, 217 Pa. St. 71, 118 Am. St. Rep. 900, 10 Ann. Cas. 488, 11 L. R. A. (N. S.) 49, 66 Atl. 157; Dean v. Rounds, 18 R. I. 436, 27 Atl. 515, 28 Atl. 802; Corbin V. Mills' Exrs., 19 Gratt. (Va.) 438.
The rule that courts will lean to construing a legacy general rather than specific where there is any doubt, does not mean that the court is to address itself to the construction of a will with any prepossession one way
or the other. - Sayer V. Sayer, 7 Hare 377.
"Courts have always leaned strongly against construing legacy as specific when there is
any doubt, and such a rule of construction is usually far more favorable to the legatee; for a specific legacy is liable to be adeemed, and therefore entirely lost."-Estate of Woodworth, 31 Cal. 595, quoted in Noon's Estate, 49 Ore. 286, 293, 88 Pac. 673, 90 Pac. 673.
Pecuniary legacies will not be construed as specific unless clearly made so by the testator's language, especially if such construction results in a partial intestacy, -Vaiden v. Hawkins, 59 Miss. 406.
7 Kenaday v. Sinnott, 179 U. S. 606, 45 L. Ed. 339, 21 Sup. Ct. 233; Tifft v. Porter, 8 N. Y. 516.
Inasmuch as the presumption is that the testator intended a real benefit to the legatee, the courts consider legacies as general or demonstrative rather than specific where the language of the will permits that construction.—Matter
8 647. General Legacies Defined.
A legacy is said to be general when it is not answered by any particular portion or article belonging to the estate, the delivery of which will alone fulfill the intent of the testator; and when it can be so answered, it is said to be a specific thing belonging to the estate which is by the legacy intended to be transferred in specie to the legatee. If it is the intention to have it paid without reference to the fund upon which it is primarily a charge, it is general. It is one which does not necessitate the delivery of any particular article or the payment of money out of any particular fund or portion of the estate ;' it is payable out of the general assets, such as a gift of money or other thing in quantity, and not in any way separated or distinguished from other property of a like kind.10
8 648. The Same Subject: Ilustrations.
A general legacy or devise is one of quantity merely, 11 as, for example, a bequest of “all my personal estate,"12
of Bouk's Estate, 80 Misc. Rep. (N. Y.) 196, 141 N. Y. Supp. 922; Giddings v. Seward, 16 N. Y. 365.
8 Kenaday v. Sinnott, 179 U. S. 606, 45 L. Ed. 339, 21 Sup. Ct. 233; Smith v. McKitterick, 51 Iowa 548, 551, 2 N. W. 390; Carpenter's Estate, In re, 166 Iowa 48, 147 N. W. 175; Boston etc. Trust Co. V. Plummer, 142 Mass. 257, 8 N. E. 51; Matter of Fisher, 93 App. Div. 186, 87 N. Y. Supp. 567; Crawford V. McCarthy, 159 N. Y. 514, 54 N. E. 277.
9 Matter of King, 122 App. Div. (N. Y.) 354, 106 N. Y. Supp. 1073;
Martin, In re, 25 R. I. 1, 54 Atl. 589.
10 Nusly v. Curtis, 36 Colo. 464, 118 Am. St. Rep. 113, 10 Ann. Cas. 1134, 7 L. R. A. (N. S.) 592, 85 Pac. 846; School Dist. No. 1 v. International Trust Co., 59 Colo. 486, 149 Pac. 620; Asbury v. Shain, 191 Mo. App. 667, 177 S. W. 666.
11 Myers' Exrs. v. Myers, 33 Ala. 85; Gilmer's Legatees v. Gilmer's Exrs., 42 Ala. 9, 16.
12 Broadbent v. Barrow, 20 Ch. Div. 676; s. c., nom. Robertson v. Broadbent, 8 App. Cas. 812.
A bequest of all of the testator's