Page images

vises of lands acquired after the will was made, are not regarded as specific.86 In England, however, although the early decisions under the Statute of Wills of 1 Victoria, ch. 26, which allowed after-acquired property to pass by will, held to the contrary,67 yet it is now well settled by later English decisions that a residuary devise of lands is as specific under the Wills Act as it was before.68

A devise of real property owned by the testator at the time of the making of his will may, of course, be specific as in the case of personal property ;69 and even a residuary clause may take on the same character when by which a party should devise all Floyd, 29 S. C. 102, 7 S. E. 42; lands of which he should die seized Lake v. Copeland, 82 Tex. 464, 17 or possessed, it is obvious, would S. W. 786. have none of the characteristics Compare: A devise to testator's before stated of a specific devise. wife during her life of the use and A party might sell and convey income of the land and buildings land owned at the date of the will, where he lived and a certain part and with the proceeds purchase of the Davis farm, so-called, is speothers, and repeat the operation cific. - Wallace Wallace, 23 continually, and those lands N. H. 149. owned at the moment he should 67 Dady v. Hartridge, 1 Drew, & happen to die, would pass by the Sm. 236; Rotheram v. Rotheram, will; would take the place of those 26 Beav. 465; Bethell v. Green, 34 conveyed. Personal and real es- Beav. 302. tate would stand upon the same 68 Hensman V. Fryer, L. R. 3 footing in this respect; a devise Ch. App. 420; Gibbins v. Eyden, of all one's personal and all of L. R. 7 Eq. Cas. 371; Lancefield one's real estate would be equally v. Iggulden, L. R. 10 Ch. App. 136, general, and operate precisely 44 L. J. Ch. 203; Pearman V. alike. The grounds upon which a Twiss, 2 Giff. 130, 29 L. J. Ch, 802. devise of real estate was held al- 69 Matter of De Bernal's Estate, Ways specific have ceased to 165 Cal. 223, Ann, Cas. 1914D, 26, exist."

131 Pac. 375; In re Sutton's Es66 Kelly v. Richardson, 100 Ala. tate, (Del.) 97 Atl. 624; Wilts v. 584, 13 So. 785; Blaney v. Blaney, Wilts, 151 Iowa 149, 130 N. W. 1 Cush. (Mass.) 107; Farnum v. 906; Wood v. Hammond, 16 R. I. Bascom, 122 Mass. 282; Floyd v. 98, 17 Atl. 324, 18 Atl. 198.


it is certain what property is to pass thereunder.70 But it has been held that even devises to the testator's children of defined tracts of land may be general where the real intent, as drawn from the will, shows that the descriptions were inserted only as a suggestion as to the manner of partitioning the estate.71

8 657. Distinction Between Specific and Demonstrative Lega


The distinction between specific and demonstrative legacies is well understood, but it is sometimes difficult to determine to which class a particular gift belongs. The cases present very nice distinctions.72 The distinction involves not merely a technical question depending for its solution solely upon the precise language of the bequest, but a substantive inquiry respecting the intention of the testator as shown by the terms of the particular legacy examined in connection with all other provisions of the will.73 In determining whether a legacy is specific or demonstrative, the question always is whether it is a gift out of a specified fund or security, or a gift of a specified sum with a specified fund as security.74 In other words, if the reference to a particular fund in connection with the legacy is made only for the purpose

70 For example, if a testator, 71 Gallagher v. Redmond, 64 owning tracts A, B, C, and D, Tex. 622. should specifically devise A and B

72 Wallace v. Wallace, 23 N. H. to X and make a residuary devise

149; Corbin V. Mills' Exrs., 19 to Y, the gift so made of C and D

Gratt. (Va.) 438. would be as specific as that of A and B, for presumably the tes

73 Stilphen, Appeal of, 100 Me. tator had in mind what property

146, 4 Ann, Cas. 158, 60 Atl. 888. he had and what would pass under 74 Georgia Infirmary v. Jones, 37 the residuary clause.-In re Sut. Fed. 750, ton's Estate, (Del.) 97 Atl. 624.

of pointing out a convenient mode of payment, it is considered demonstrative, and the legatee may be paid out of the general assets of the estate should the particular fund fail. But where the gift is of the fund itself, in whole or in part, or a gift so charged upon the object made subject to it as to show an intent to burden that object alone with its payment, it is specific.75

8 658. Demonstrative Legacies Defined.

Demonstrative legacies partake of the nature of both specific and general legacies.76 A legacy of a specified quantity of money or other property is ordinarily called a general legacy, but such legacy may partake of the nature of a specific legacy when reference is made to a particular fund for its payment, without, however, being limited to such fund. Such a legacy is called demonstrative.?? A demonstrative legacy may therefore be defined as a bequest of a certain sum of money, stock, or the like, payable out of a particular fund or security, partaking

75 Walls v. Stewart, 16 Pa. St. 54 N. J. Eq. 333, 35 Atl. 291; Craw275, 281.

ford v. McCarthy, 159 N. Y. 514, 76 School Dist. No. 1 v. Interna

54 N. E. 277; Balliet's Appeal, tional Trust Co., 59 Colo. 486, 149

14 Pa. St. 451; Armstrong's ApPac. 620; Harrison v. Denny, 113

peal, 63 Pa. St. 312; Darden v.

Orgain, 5 Cold. (45 Tenn.) 211; W. 509, 77 Atl. 837.

Morriss v. Garland's Admr., 78 Va. 77 Kenaday v. Sinnott, 179 U. S.

215. 606, 45 L. Ed. 339, 21 Sup. Ct. 233;

A demonstrative legacy has Kelly v. Richardson, 100 Ala. 584,

been defined as "a legacy in the 13 So. 785; Roquet v. Eldridge, 118

nature of a general legacy with a Ind. 147, 20 N. E. 733; Gelbach v.

certain fund pointed out for its Shively, 67 Md. 498, 10 Atl. 247; payment.”—Kunkel v. Macgill, 56 Matthews V. Targarona, 104 Md. Md. 120; Gardner v. McNeal, 117 442, 10 Ann. Cas. 153, 65 Atl. 60; Md. 27, Ann. Cas. 1914A, 119, 40 Merriam v. Merriam, 80 Minn, 254, L. R. A. (N. S.) 553, 82 Atl. 988; 83 N. W. 162;. Wallace v. Wallace, Giddings v. Seward, 16 N. Y. 365; 23 N. H 149: Johnson v. Conover. Appeal of Welch, 28 Pa. St. 363.

of the nature of a general legacy because of the amount being specified, and partaking of the nature of a specific legacy because of the pointing out of the fund from which the payment is to be made. It differs from a specific legacy, however, in that if the designated fund from which payment is to be made should fail, to make up

the deficiency resort may be had to the general assets of the estate.78

Although a demonstrative legacy is a bequest payable out of a particular fund named or demonstrated in the will itself,79 it is charged 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 a liability in case the fund fails.80 In order, therefore, that a legacy be demonstrative, two elements must appear: First, that the testator intended to make an unconditional gift in the nature of a general legacy, and second, that the bequest indicate the fund out of which it is payable. 81

78 Spinney v. Eaton, 111 Me. 1, queathed. - Watrous V. Smith, 7 46 L. R. A. (N. S.) 535, 87 Atl. 378; Hun (N. Y.) 544; Methodist EpisCrawford v. McCarthy, 159 N. Y. copal Church v. Hebard, 28 App. 514, 54 N. E. 277; Baptist Female Div. (N. Y.) 548, 51 N. Y. Supp. University V. Borden, 132 N. C. 546. 476, 44 S. E. 47, 1007.

79 Harper v. Bibb, 47 Ala. 547; A demonstrative legacy is so far Tanton v. Keller, 167 Ill. 129, 47 general that if the fund out of N. E. 376; Chester County Hoswhich it is to be paid proves in- pital v. Hayden, 83 Md. 104, 34 sufficient the legatee can proceed Atl. 877; Adair V. Adair, 11 N. D. against the general assets of the 175, 90 N. W. 804. estate for the balance.—Matthews 80 Nusly v. Curtis, 36 Colo. 464, v. Targarona, 104 Md. 442, 10 Ann. 118 Am, St. Rep. 113, 10 Ann, Cas, Cas. 153, 65 Atl. 60.

1134, 7 L. R. A. (N. S.) 592, 85 Pac. A legacy of money is demonstra- 846; School Dist. No. 1 v. Internative when the gift is so made as tional Trust Co., 59 Colo. 486, 149 to clearly show the testator's in- Pac. 620. tention that the legatee shall cer- 81 Stilphen, Appeal of, 100 Me. tainly receive the amount be- 146, 4 Ann, Cas. 158, 60 Atl. 888;

$ 659. The Same Subject: Illustrations.

A bequest of a certain sum of money "out of” or to be paid out of” a designated fund or note or bond, or a bequest of stock “out of” a greater amount of like stock, is called a demonstrative legacy. The particular fund is pledged as a collateral security, but the legacy does not depend for its value upon the sufficiency or existence of the fund thus specifically dedicated for its security.82 A demonstrative legacy is so far general that if the fund be called in or fail, the legatee will be permitted to receive an equal amount out of the general estate; and it is so far specific that it will not be liable to abate with general legacies upon a deficiency of assets. 88 For examCrawford v. McCarthy, 159 N. Y. Ves. Jun. 555; Walton v. Walton, 514, 54 N. E. 277.

7 Johns. Ch. (N. Y.) 258, 262, 82 Gilmer's Legatees v. Gilmer's 11 Am. Dec. 456. Exrs., 42 Ala. 9, 21; Smith V. A demonstrative legacy is one Lampton, 8 Dana (38 Ky.) 69; of a certain amount or quantity, Bouvier's Law Dict., "Legacy"; the particular fund or personal Williams' Exrs. (6th Am, ed.) 360. property being pointed out from

Where the testator, after mak. which it is to be paid or taken. ing a bequest of six hundred dol. It differs from a general legacy in lars to each of four legatees, that it does not in the first inwrote: “This amount is to be in stance abate upon the insuffi. notes, such as the executrix of ciency of the general assets, and my will may turn out to them," from a specific legacy in that the court decided that these words there is recourse for its payment only indicated the fund out of from the general estate in the which payment was to be made, event of ademption. — Thompson and did not constitute specific v. Stephens, 138 Ga. 205, 75 S. E. legacies of the notes, so that in 136. the event of the fund proving in- While a demonstrative legacy adequate, the legacies should be partakes of the nature of a spemade up out of the other property cific legacy by designating the of the estate.-Frank v. Frank, 71 fund from which the payment is Iowa 646, 33 N. W. 153.

to be made, there is a vital dis83 Coleman v. Coleman, 2 Ves. tinction respecting the result in Jun. 639; Chaworth v. Beech, 4 case of the failure of the particu

« PreviousContinue »