Page images
PDF
EPUB

§ 652. Money May Be Specifically Bequeathed.

Money may be the subject of a specific bequest, as in the case of a gift of a sum of money in a bag, or a certain amount deposited in a designated place or with a particular person.48 Thus, a testator may, if he sees fit, be

48 Pulsford v. Hunter, 3 Bro. C. C. 416; Lawson v. Stitch, 1 Atk. 507.

[ocr errors]

A direction to the executors "to proceed to obtain the sum of five thousand dollars from" the testatrix's share of the estate of her deceased father "and place it in the care of the Methodist Episcopal Conference . . said conference being pledged never to use said five thousand dollars except as a part of an endowment fund for a school for Methodist ministers," constitutes a specific legacy. --Estate of Goodfellow, 166 Cal. 409, 137 Pac. 12.

A bequest of "$2000 received from the estate of my father," is specific.-Smith v. McKitterick, 51 Iowa 548, 551, 2 N. W. 390.

A bequest of moneys to be received from a decree in chancery, is specific.-Chase v. Lockerman, 11 Gill & J. (Md.) 185, 35 Am. Dec. 277, 280.

A gift of whatever sum the testator may have on deposit in a bank at the time of his death, is a specific legacy.-Barber v. Davidson, 73 Ill. App. 441; Towle v. Swasey, 106 Mass. 100.

"If there had been no deposit at the time of the testator's death, the son would have had no claim

upon the estate."-Towle v. Swasey, 106 Mass. 100.

A gift of the money in several banks at the time the will was made, which should not be otherwise disposed of, even though the money was withdrawn from those banks and deposited in another bank, where it remained until the testator's death, is a specific legacy. Prendergast v. Walsh, 58 N. J. Eq. 149, 42 Atl. 1049.

Ten legacies to be paid "only out of the moneys now deposited in" three designated banks, are specific. Bullard v. Leach, 213 Mass. 117, 100 N. E. 57.

A bequest of the amount due on a named mortgage, is specific.Matter of Bouk's Estate, 80 Misc. Rep. (N. Y.) 196, 141 N. Y. Supp. 922.

A clause, "I direct my daughter, out of the moneys belonging to me on deposit in her name, to pay my said son the sum of fifteen hundred dollars," without any general bequest to the son, constitutes a specific and not a demonstrative legacy.-Crawford v. McCarthy, 159 N. Y. 514, 54 N. E. 277, reversing 21 App. Div. 484, 47 N. Y. Supp. 436.

A bequest of money afterward described by the testator as prop

queath all of a particular fund in a purse or a bank, which is separate from other funds, employing such language as will show that he creates a specific legacy of that particular fund, rather than a legacy of a definite amount to be paid from a specific fund. He may undoubtedly so charge a money legacy upon a particular fund as to make the legacy follow the fund." But a legacy of money is not rendered specific by directing it to be expended for some particular use, as for rings,50 for government securities, or for lands.52

§ 653. Stocks, Bonds, and Securities.

In case of a bequest generally of stocks, bonds, securities, or of a sum of money in stocks, bonds or securities, erty "specifically disposed of," is a specific legacy.-Witherspoon v. Watts, 18 S. C. 396.

49 Tennille v. Phelps, 49 Ga. 532; Hart v. Brown, 145 Ga. 140, 88 S. E. 670; Towle v. Swasey, 106 Mass. 100; Smith's Appeal, 103 Pa. St. 559.

The courts are averse to considering legacies specific when they may be fairly construed otherwise.-Ellis v. Walker, Amb.

309.

A fund of twenty thousand dollars, created in a certain manner out of the estate, was directed to be held by trustees to pay the income to the testatrix's mother during her life; then was bequeathed to the testatrix's two brothers, ten thousand dollars each, "out of my estate after my said mother's decease"; it was then further provided that the in

crease of the fund over twenty thousand dollars should be applied to certain other purposes. The court decided that the bequests to the brothers were specific, and that as a part of the fund had been stolen, they could not go upon the estate to make them whole.Stevens v. Fisher, 144 Mass. 114, 10 N. E. 803.

Where a testatrix ordered the sale of her real estate and, after payment of debts and legacies from the proceeds, the income of the remainder to be paid to a certain legatee, it was held to be a specific devise, and not subject to contribute to the payment of pe cuniary legacies. In re Wilson's Estate, 15 Phila. (Pa.) 528.

50 Apreece v. Apreece, 1 Ves. & B. 364.

51 Lawson v. Stitch, 1 Atk. 507. 52 Hinton v. Pinke, 1 P. Wms. 539.

without further explanation and without more particularly referring to or designating the corpus of the identical stocks, bonds or securities, the court will not construe such a legacy to be specific, even though the testator possessed the particular property referred to at the time of the execution of his will.54 However, where words are used with reference to the corpus of the fund which qualify and distinguish it, such as "my" or "standing in my name," they show an intent on the

53 Wilson v. Brownsmith, 9 Ves. Jun. 180; In re Gillins, 1 L. R. Ch. Div. 1909, 345, 100 L. T. N. S. 226; Ladd v. Ladd, 2 Cranch C. C. 505, 14 Fed. Cas. No. 7972; Douglass v. Douglass, 13 App. Cas. (D. C.) 21; Gilmer's Legatees v. Gilmer's Exrs., 42 Ala. 9; Evans v. Hunter, 86 Iowa 413, 41 Am. St. Rep. 503, 17 L. R. A. 308, 53 N. W. 277; Palmer v. Palmer's Estate, 106 Me. 25, 19 Ann. Cas. 1184, 75 Atl. 130; Dryden v. Owings, 49 Md. 356; Johnson v. Goss, 128 Mass. 433; Matter of King, 122 App. Div. (N. Y.) 354, 106 N. Y. Supp. 1073; Matter of Bergen, 56 Misc. Rep. (N. Y.) 92, 106 N. Y. Supp. 1038; McGuire v. Evans, 40 N. C. 269; Appeal of Sponsler, 107 Pa. St. 95; Estate of Snyder, 217 Pa. St. 71, 118 Am. St. Rep. 900, 10 Ann. Cas. 488, 11 L. R. A. (N. S.) 49, 66 Atl. 157; Pearce v. Billings, 10 R. I. 102.

54 Dryden v. Owings, 49 Md. 356; Evans v. Hunter, 86 Iowa 413, 41 Am. St. Rep. 503, 17 L. R. A. 308, 53 N. W. 277; Matter

of Van Vliet, 5 Misc. Rep. (N. Y.) 169, 25 N. Y. Supp. 722; Davis v. Cain's Exr., 36 N. C. 304, 309; Appeal of Sponsler, 107 Pa. St. 95.

Contra: Jewell v. Appolonio, 75 N. H. 317, 74 Atl. 250.

"The fact that the testator has at the making of his will of that which is given a quantity equal to or greater than the bequest, is ground of an argument, and combined with other circumstances, may lead to the conclusion that a specific legacy was intended, but under the authorities, and the established inclination of the courts to regard legacies as general rather than specific, it can not of itself change the class of legacies from general to specific." — Gilmer's Legatees v. Gilmer's Exrs., 42 Ala. 9.

"The cases cited from other jurisdictions, holding as a matter of law that legacies of stock to the exact amount owned by the testator are general rather than specific are in conflict with the New Hampshire rule."-Jewett v. Appolonio, 75 N. H. 317, 74 Atl. 250.

part of the testator that a legacy of the particular stocks, bonds or securities mentioned was intended to be specified.55

§ 654. Insurance Policies.

A bequest of a specified insurance policy, or of a policy amounting to a certain named sum,57 or of the amount of money which may become due under named policies,58 must be deemed to be specific. A legacy of "my life insurance" is specific,59 but a bequest of "the sum of ten thousand dollars to be realized out of the proceeds of such life insurance as may be in force on my life at the time of my death," is demonstrative.60 § 655. Proceeds From Sales.

Where the testator orders the sale of specified bonds, mortgages, furniture, or other personal property, or the sale of any designated real estate, and directs that the proceeds thereof be paid to certain persons, such bequests are deemed to be specific. If the beneficiaries named

61

55 In re M'Afee, 1 Ir. R. 124; Gardner v. McNeal, 117 Md. 27, Ann. Cas. 1914A, 119, 40 L. R. A. (N. S.) 553, 82 Atl. 988; Allen v. Allen, 76 N. J. Eq. 245, 139 Am. St. Rep. 758, 74 Atl. 274; Kearns v. Kearns, 77 N. J. Eq. 453, 140 Am. St. Rep. 575, 76 Atl. 1042; Mecum v. Stoughton, 81 N. J. Eq. 319, 86 Atl. 52.

56 Barker v. Rayner, 5 Madd. 208; affirmed 3 Eng. Ch. 126; Matter of Gans' Estate, 60 Misc. Rep. (N. Y.) 282, 112 N. Y. Supp. 259; In re Pruner, 222 Pa. St. 179, 40 L. R. A. (N. S.) 561, 70 Atl. 1000. 57 Platt v. Moore, 1 Dem. (N. Y. Surr.) 191.

58 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.

59 Kearns v. Kearns, 77 N. J. Eq. 453, 140 Am. St. Rep. 575, 76 Atl. 1042.

60 Kramer v. Kramer, 201 Fed. 248, 119 C. C. A. 482.

61 Page v. Leapingwell, 18 Ves. Jun. 463; Kaiser v. Brandenburg, 16 App. Cas. (D. C.) 310; Weed v. Hoge, 85 Conn. 490, Ann. Cas. 1913C, 543, 83 Atl. 636; Hutchinson v. Fuller, 75 Ga. 88; Heslet v. Heslet, 8 Ill. App. 22; Miller's Exr. v. Malone, 109 Ky. 133, 95 Am. St. Rep. 338, 58 S. W. 708; Boston

[ocr errors]

are to receive their legacies only out of the proceeds of sale of specified property devised to a trustee, their rights are limited to the proceeds from such a sale, and if the property in question had been disposed of by the testator prior to his death, the bequests fail.62

§ 656. Real Estate.

At common law all devises of real estate were regarded as specific. This fact seems to have been the real reason for placing lands devised after lands descended in the order of charging them with the debts of the estate. The early common law rule, however, was that a testator could devise only such real property as he owned at the time he executed his will.63 This rule has long since been changed, and a testator may make a testamentary disposition of all real property owned by him at the time of his death, although acquired subsequent to the execution of his will, if such is his intent.64 The reason, therefore, for holding all devises of realty to be specific, no longer exists; and in the United States generally, de

Safe Deposit & Trust Co. v. Plummer, 142 Mass. 257, 8 N. E. 51; Gardner v. Printup, 2 Barb. (N. Y.) 83; Matter of Matthews, 122 App. Div. (N. Y.) 605, 107 N. Y. Supp. 301; Starbuck v. Starbuck, 93 N. C. 183; Gilbreath v. Alban, 10 Ohio 64; In re Black's Estate, 223 Pa. St. 382, 72 Atl. 631; In re Martin, 25 R. I. 1, 54 Atl. 589; Bailey v. Wagner, 2 Strobh. Eq. (S. C.) 1; Manlove v. Gaut, 2 Tenn. Ch. App. 410. See § 288.

62 Meily v. Knox, 269 Ill. 463, 110 N. E. 56.

63 See §§ 26-29, 229.
"Other devises of land, whether

[merged small][ocr errors][merged small]
« PreviousContinue »