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or of “all my real and personal estate not hereinbefore specifically devised."'18 So, also, bequests, such as of a hundred dollars;14 of a sum of money “to be kept in gold and silver," and paid to the legatee on his arriving at age ;15 of a certain sum to be paid “in good notes” at the option of the legatee ;16 of shares of stock in a bank, with power to the executors to change the investment;17 of a certain sum “or the value thereof in property”;18 of “one year's provisions,” 19 have all been held to be general legacies.
A gift of “$10,000 in such cash, stocks, notes or bonds” as the testator may die possessed of, is a general legpersonal estate with certain Estate, 154 Mich. 353, 117 N. W. named exceptions, is general. 906. Kelly v. Richardson, 100 Ala. 584, A bequest of “$20,000 or such 13 So. 785.
part thereof as I may receive from A bequest and devise of all the S, for land hereafter to be sold testator's estate of every kind is to him by me, situate in the city a general legacy. – Broadwell v. of New Castle, Pennsylvania, less, Broadwell's Admr., 61 Ky. (4 however, all costs and expenses Metc.) 290; In re Snyder's Estate, which I may incur,” etc., was held 217 Pa. St. 71, 118 Am. St. Rep. to be in the alternative, and was 900, 10 Ann. Cas. 488, 11 L. R. A. general.-Ranney v. Byers, 242 Pa. (N. S.) 49, 66 Atl. 157.
St. 450, 89 Atl. 570. 13 Chamberlain v. Taylor, 105 15 Mathis v. Mathis, 18 N.J.L. 59. N. Y. 185, 630, 11 N. E. 625, 630. 16 Perry V. Maxwell, 17 N. C. A devise of "all my property
488. real and personal of every descrip- A direction that ten thousand tion," except certain specified por- dollars be paid to a legatee in tions, "unto my wife during her cash, stocks, notes, bonds natural life," is a general legacy. which the testator might leave at - Mayo v. Bland, 4 Md. Ch. 484. his death, is not a specific legacy
14 McDowell v. Burton, 4 Bibb of the stocks, but a general legacy (7 Ky.) 326.
of ten thousand dollars.--Martin v. Legacies to nephews and nieces Osborne, 85 Tenn. 420, 3 S. W. 647. each of a specified sum, if the 17 Ladd v. Ladd, 2 Cranch C. C. testatrix possessed sufficient per- 505, Fed. Cas. No. 7972. sonal property at her death, are 18 Fagan v. Jones, 22 N. C. 69. general legacies. — In re Corby's 19 Everitt v. Lane, 37 N. C. 548.
acy.20 Gifts to each of several legatees in general terms of a certain amount of stock, without identifying any particular shares or distinguishing those given from all other stock of the same kind, are general.21 A mere bequest of corporate stock without any attempt at definite description is a general legacy, but where certain shares are described or particular descriptive language is used to refer to them, it will be treated as specific.22 However, where the contents of a safe deposit box, consisting of stocks, bonds, mortgages, and insurance policies, were bequeathed to eleven persons in such proportions as to make it impossible to divide them as directed, the legacies were held to be general.28
8 649. Specific Legacies Defined.
A specific legacy is a gift by will of a specified part of the testator's estate, distinguished from all other property of the same kind, and which may be satisfied only by the delivery of the particular thing bequeathed, and not by a corresponding value.24 It must be part only of
20 Martin V. Osborne, 85 Tenn. 21 In re Snyder's Estate, 217 Pa. 420, 3 S. W. 647.
St. 71, 118 Am. St. Rep. 900, 10 A legacy of a certain amount of Ann. Cas. 488, 11 L. R. A. (N. S.) money "out of the portion or 49, 66 Atl. 157. share of my father's estate that 22 Matter of Bergen, 56 Misc. may come to me," has been said Rep. 92, 106 N. Y. Supp. 1038; to be a general legacy and to fail affirmed, Bergen v. Wyckoff (In re to the extent of the deficiency of Snedecker), 125 App. Div. 929, 110 the fund specified. - Gelbach v. N. Y. Supp. 1146; Tifft v. Porter, Shively, 67 Md. 498, 10 Atl. 247. 8 N. Y. 516; Brundage v. Brun
Annuities directed to be paid dage, 60 N. Y. 544; Davis v. Cain's out of a trust fund to be created Exr., 36 N. C. 304, 309. out of the personal estate, are gen- 23 Matter of Fisher, 93 App. Div. eral.—Turner v. Mather, 86 App. 186, 87 N. Y. Supp. 567. Div. 172, 83 N. Y. Supp 1013; 24 Kramer v. Kramer, 201 Fed. affirmed, 179 N. Y. 581, 72 N. E. 248, 119 C. C. A. 482; Kenaday v. 1152.
Sinnott, 179 U. S. 606, 45 L. Ed.
the testator's estate, as distinguished from the whole; it must be a severed or distinguished part, and it can not be the whole of the estate either in the meaning of all of the testator's property or all of the general residue of his property out of which legacies are given.25 A legacy is specific when it is of a particular specified thing which may be separated from the general property of the estate, such as a horse of a certain color, a certain piece of furniture, or a quantity of chattels described collectively, as a gift of all the testator's pictures.28
In making a specific bequest it is absolutely necessary that the subject matter be designated27 or identified ;28 that is, there must be a segregation of the particular property from the mass of the estate, and a specific gift of the separated portion.29 To sustain the claim that a bequest is specific, there must be established both the existence and identity of the property as stated in the will.30 339, 21 Sup. Ct. 233; Gilmer's Pa. St. 71, 118 Am. St. Rep. 900, Legatees v. Gilmer's Exrs., 42 Ala. 10 Ann. Cas. 488, 11 L, R, A. 9, 16; Nusly V. Curtis, 36 Colo, (N. S.) 49, 66 Atl. 157; Dean v. 464, 118 Am, St. Rep. 113, 10 Ann. Rounds, 18 R. I. 436, 27 Atl. 515, Cas. 1134, 7 L. R. A. (N. S.) 592, 28 Atl, 802; Martin, In re, 25 R. I. 85 Pac. 846; School Dist. No. 1 v. 1, 54 Atl. 589; In re Campbell's International Trust Co., 59 Colo. Estate, 27 Utah 361, 75 Pac. 851. 486, 149 Pac. 620; Smith v. McKit
25 Bothamley V. Sherson, L. R. terick, 51 Iowa 548, 2 N. W. 390;
20 Eq. 304. Wilts v. Wilts, 151 Iowa 149, 130
26 Asbury v. Shain, 191 Mo. App. N. W. 906; Broadwell v. Broad
667, 177 S. W. 666; Morriss v. Garwell, 61 Ky. (4 Metc.) 290; Hill
land's Admr., 78 Va. 215, 222. v. Harding, 92 Ky. 76, 17 S. W.
27 United States Fidelity 199, 437; Stilphen, Appeal of, 100
Guaranty Co. v. Douglas' Trustee, Me. 146, 4 Ann, Cas. 158, 60 Atl.
134 Ky. 374, 20 Ann, Cas. 993, 120 888; Tomlinson v. Bury, 145 Mass.
S. W. 328. 346, 1 Am. St. Rep. 464, 14 N. E. 137; Kearns v. Kearns, 77 N. J.
28 Dryden v. Owings, 49 Md. 356. Eq. 453, 140 Am. St. Rep. 575, 76
29 Mayo v. Bland, 4 Md. Ch. 484. Atl. 1042; Starbuck v. Starbuck, 30 Barber V. Davidson, 73 Ill. 93 N. C. 183; Snyder's Estate, 217 App. 441.
It must be pointed out and individualized so as to enable it to be delivered to the legatee as a thing sui generis. It must be labeled and marked for delivery,81 and this must be effected by the language of the will ;32 but it is sufficient if the property bequeathed can be specified and distinguished at the time of the testator's death.38
8 650. The Same Subject: As of the Date of the Will.
It has been said that a specific legacy must be construed in the light of the situation existing at the time the will was made.34 Thus, where a legacy is specific, there is the presumption that it could have been identified at the time of the execution of the will, and the burden of proof lies with the legatee to show that a legacy specific in form is in fact general because of facts existing at the date of the will. But a bequest of a specific sum out of a particular fund will be considered a general legacy if the fund was not then in such form as to be identified and traced.35 It seems settled, however, that a testator may make a specific gift of property which he intends to acquire and which he owns at his death.36
31 Innes V. Johnson, 4 Ves. Jun. In re Campbell's Estate, 27 Utah 568; Harper v. Bibb, 47 Ala. 547; 361, 75 Pac. 851. Palmer V. Palmer's Estate, 106
34 Matter of Delaney, 133 App. Me. 25, 19 Ann. Cas. 1184, 75 Atl.
Div. 409, 117 N. Y. Supp. 838;
affirmed, 196 N. Y. 530, 89 N. E. 130; Johnson v. Goss, 128 Mass.
1098; Matter of Brann, 219 N. Y. 433; Noon's Estate, 49 Ore. 286,
263, 114 N. E. 404. 88 Pac. 673, 90 Pac. 673; In re
35 Matter of Getman, 128 App. Campbell's Estate, 27 Utah 361, 75
Div. (N. Y.) 767, 113 N. Y. Supp. Pac. 851.
67. 32 Harper v. Bibb, 47 Ala. 547,
36 Fontaine v. Tyler, 9 Price 94; 553; In re Campbell's Estate, 27
Queen's College v. Sutton, 12 Sim. Utah 361, 75 Pac. 851.
521; Gordon v. Duff, 28 Beav. 519. 33 Stephenson v. Dowson, 3 The common law English and Beav. 342; Fidelity Ins. etc. Co.'s American rule as to the time from Appeal, 108 Pa. St. 492, 1 Atl, 233; which a will speaks, see $$ 235-239.
$ 651. The Same Subject: Descriptive Words.
Any words which clearly manifest an intention on the part of the testator to give a specific thing constituting part of his estate, as distinguished from all other things of the same kind, and which it appears he did not use to designate quantity, or to describe the special character of the thing he wanted to give, will make the legacy specific.37 Thus legacies are specific where the subject matter has been described as, in the case of a gift to a wife of “the whole of the property she brought me”; “my East Haddam bank stock”;39 a balance due upon a settlement;4o all the money due on a bond against certain persons;41 a certain sum "in notes to be taken out of my notes as soon after my death as it can be done”;42 "one carriage,” where the testator had but one ;48 a certain number of horses and oxen to be of her choice":44 the money which shall be received under the decree in a certain suit;45 five hundred dollars in personal property "such as she may select”:46 “all my property, house and lot, and store, and all my personal property therein."47
37 Moore's Exr. V. Moore, 50 46 Wallace v. Wallace, 23 N. H. N. J. Eq. 554, 25 Atl. 403.
149. 38 Warren v. Wigfall, 3 Desaus. 47 Lynch's Estate, 13 Phila. (Pa.) (S. C.) 47. See, also, Pell v. Ball, 322, Speers' Eq. (S. C.) 48.
A gift of "all my stock-in-trade 39 Brainerd Cowdrey, 16 of wines and spirituous liquors Conn. 1.
which I shall be possessed of at 40 Ellis v. Walker, Amb. 309. the time of my death,” is specific. 41 Stout v. Hart, 7 N. J, L. 414. - Stewart V. Denton, 4 Doug. 42 Perry V. Maxwell, 17 N. C. (Eng.) 219. 488.
Bequests of all wheat of which 43 Everitt v. Lane, 37 N. C. 548. the testator was the owner, stored 44 Everitt v. Lane, 37 N. C. 548. on his lands, and one-half of all 45 Chase v. Lockerman, 11 Gill grain that might be raised on such & J. (Md.) 185, 35 Am. Dec. 277; lands during a specified year, are Every gift of land: Wallace v. Wal. specific. - Rock v. Zimmermann, lace, 23 N. H. 149.
25 S. D. 237, 126 N. W. 265. II Com. on Wills-8