vises of lands acquired after the will was made, are not regarded as specific. 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, 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 67 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; and even a residuary clause may take on the same character when by which a party should devise all lands of which he should die seized or possessed, it is obvious, would have none of the characteristics before stated of a specific devise. A party might sell and convey land owned at the date of the will, and with the proceeds purchase others, and repeat the operation continually, and those lands owned at the moment he should happen to die, would pass by the will; would take the place of those conveyed. Personal and real estate would stand upon the same footing in this respect; a devise of all one's personal and all of one's real estate would be equally general, and operate precisely alike. The grounds upon which a devise of real estate was held always specific have ceased to exist." 66 Kelly v. Richardson, 100 Ala. 584, 13 So. 785; Blaney v. Blaney, 1 Cush. (Mass.) 107; Farnum v. Bascom, 122 Mass. 282; Floyd v. Floyd, 29 S. C. 102, 7 S. E. 42; Compare: A devise to testator's wife during her life of the use and income of the land and buildings where he lived and a certain part of the Davis farm, so-called, is specific. - Wallace V. Wallace, 23 N. H. 149. 67 Dady v. Hartridge, 1 Drew. & Sm. 236; Rotheram v. Rotheram, 26 Beav. 465; Bethell v. Green, 34 Beav. 302. 68 Hensman v. Fryer, L. R. 3 Ch. App. 420; Gibbins v. Eyden, L. R. 7 Eq. Cas. 371; Lancefield v. Iggulden, L. R. 10 Ch. App. 136, 44 L. J. Ch. 203; Pearman V. Twiss, 2 Giff. 130, 29 L. J. Ch. 802. 69 Matter of De Bernal's Estate, 165 Cal. 223, Ann. Cas. 1914D, 26, 131 Pac. 375; In re Sutton's Estate, (Del.) 97 Atl. 624; Wilts v. Wilts, 151 Iowa 149, 130 N. W. 906; Wood v. Hammond, 16 R. I. 98, 17 Atl. 324, 18 Atl. 198. it is certain what property is to pass thereunder. 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 § 657. Distinction Between Specific and Demonstrative Legacies. 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." 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, owning tracts A, B, C, and D, should specifically devise A and B to X and make a residuary devise to Y, the gift so made of C and D would be as specific as that of A and B, for presumably the testator had in mind what property he had and what would pass under the residuary clause.-In re Sutton's Estate, (Del.) 97 Atl. 624. 71 Gallagher V. Redmond, 64 Tex. 622. 72 Wallace v. Wallace, 23 N. H. 149; Corbin v. Mills' Exrs., 19 Gratt. (Va.) 438. 73 Stilphen, Appeal of, 100 Me. 146, 4 Ann. Cas. 158, 60 Atl. 888. 74 Georgia Infirmary v. Jones, 37 Fed. 750. 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 8658. 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. 275, 281. 76 School Dist. No. 1 v. International Trust Co., 59 Colo. 486, 149 Pac. 620; Harrison v. Denny, 113 MJ. 509, 77 Atl. 837. 77 Kenaday v. Sinnott, 179 U. S. 606, 45 L. Ed. 339, 21 Sup. Ct. 233; Kelly v. Richardson, 100 Ala. 584, 13 So. 785; Roquet v. Eldridge, 118 Ind. 147, 20 N. E. 733; Gelbach v. Shively, 67 Md. 498, 10 Atl. 247; Matthews v. Targarona, 104 Md. 442, 10 Ann. Cas. 153, 65 Atl. 60; Merriam v. Merriam, 80 Minn. 254, 83 N. W. 162;.Wallace v. Wallace, 23 N. H. 149: Johnson v. Conover. 54 N. J. Eq. 333, 35 Atl. 291; Crawford v. McCarthy, 159 N. Y. 514, 54 N. E. 277; Balliet's Appeal, 14 Pa. St. 451; Armstrong's Appeal, 63 Pa. St. 312; Darden v. Orgain, 5 Cold. (45 Tenn.) 211; Morriss v. Garland's Admr., 78 Va. 215. A demonstrative legacy has been defined as "a legacy in the nature of a general legacy with a certain fund pointed out for its payment."-Kunkel v. Macgill, 56 Md. 120; Gardner v. McNeal, 117 Md. 27, Ann. Cas. 1914A, 119, 40 L. R. A. (N. S.) 553, 82 Atl. 988; Giddings v. Seward, 16 N. Y. 365; 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 79 Although a demonstrative legacy is a bequest payable out of a particular fund named or demonstrated in the will itself, 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. 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, 46 L. R. A. (N. S.) 535, 87 Atl. 378; Crawford v. McCarthy, 159 N. Y. 514, 54 N. E. 277; Baptist Female University v. Borden, 132 N. C. 476, 44 S. E. 47, 1007. A demonstrative legacy is so far general that if the fund out of which it is to be paid proves insufficient the legatee can proceed against the general assets of the estate for the balance.-Matthews v. Targarona, 104 Md. 442, 10 Ann. Cas. 153, 65 Atl. 60. A legacy of money is demonstrative when the gift is so made as to clearly show the testator's intention that the legatee shall certainly receive the amount be queathed. Watrous v. Smith, 7 Hun (N. Y.) 544; Methodist Episcopal Church v. Hebard, 28 App. Div. (N. Y.) 548, 51 N. Y. Supp. 546. 79 Harper v. Bibb, 47 Ala. 547; Tanton v. Keller, 167 III. 129, 47 N. E. 376; Chester County Hospital v. Hayden, 83 Md. 104, 34 Atl. 877; Adair v. Adair, 11 N. D. 175, 90 N. W. 804. 80 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. 81 Stilphen, Appeal of, 100 Me. 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. For exam Crawford v. McCarthy, 159 N. Y. 514, 54 N. E. 277. 82 Gilmer's Legatees v. Gilmer's Exrs., 42 Ala. 9, 21; Smith v. Lampton, 8 Dana (38 Ky.) 69; Bouvier's Law Dict., "Legacy"; Williams' Exrs. (6th Am. ed.) 360. Where the testator, after making a bequest of six hundred dollars to each of four legatees, wrote: "This amount is to be in notes, such as the executrix of my will may turn out to them," the court decided that these words only indicated the fund out of which payment was to be made, and did not constitute specific legacies of the notes, so that in the event of the fund proving inadequate, the legacies should be made up out of the other property of the estate.-Frank v. Frank, 71 Iowa 646, 33 N. W. 153. 83 Coleman v. Coleman, 2 Ves. Jun. 639; Chaworth v. Beech, 4 Ves. Jun. 555; Walton v. Walton, 7 Johns. Ch. (N. Y.) 258, 262, 11 Am. Dec. 456. A demonstrative legacy is one of a certain amount or quantity, the particular fund or personal property being pointed out from which it is to be paid or taken. It differs from a general legacy in that it does not in the first instance abate upon the insufficiency of the general assets, and from a specific legacy in that there is recourse for its payment from the general estate in the event of ademption. - Thompson v. Stephens, 138 Ga. 205, 75 S. E. 136. While a demonstrative legacy partakes of the nature of a specific legacy by designating the fund from which the payment is to be made, there is a vital distinction respecting the result in case of the failure of the particu |