§ 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 applied to legacies.

683. Intention controls as to whether or not legacies are cumulative 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.

§ 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.1 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.2 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.

§ 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

1 In re Parson's Estate, 150 Iowa 230, 129 N. W. 955. See § 31.

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

It was said by Meredith, C. J., in Re Mackey, 6 Ont. Law Rep. 292: "It is difficult to determine what a specific legacy is, or to state the test for distinguishing such a legacy from a general bequest, and it has been said by a Lord

Chancellor that though various attempts have been made at definitions, there were objections to most of them; and it would, I think, serve no good purpose to go through the cases for the purpose of extracting from them such definitions as have been given."

3 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.

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.

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."

(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 a 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

§ 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

§ 648. The Same Subject: Illustrations.

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