The hand-book of the law of legacies / containing a statement of the nature of legacies, and the accidents to which they are subjects; together with the rights of legatees, and the causes and manner of the ademption, cumulation, and abatement of their bequests

by Anonymous

SPECIFIC LEGACIES.

Specific legacies are of two kinds; the first of which includes such chattels as are so described as to identify them from all others of any other kind, or of the same kind, as, “I give the silver candlesticks, left me by my late uncle, to such a person.” Here the meaning cannot be misunderstood, and the legatee can take the particular candlesticks in question, and none others; and, consequently, should it have happened that the candlesticks in question have either been lost or parted with by the testator during his life-time, or cannot be found after his death, the person to whom the bequest is made will lose his legacy. The second kind implies a particular chattel, as expressed in the will, but without distinguishing it from any other chattel of the same kind. Thus, the words, “I hereby give and bequeath a diamond ring to my nephew, J.,” would give to J. a diamond ring, even though the testator had not one in his possession at the time of his death, and he would obtain his legacy in full, even though those of the general legatees should abate of half their value in consequence of claims against the property of their benefactor. The gift, however, of a sum of money for the purchase of a specific legacy becomes a general legacy, and therefore liable to abatement.

Generally speaking, there is an indisposition in the courts to construe the terms of a will into a bequest of a specific legacy, but if the expression clearly indicate an intention to separate any particular thing from the general property, they will always readily allow the specificness of the legacy; and, hence, under some circumstances, even pecuniary legacies become specific. Thus, in the case of Lawson v. Stitch, a legacy was stated as consisting of, or conveying a certain sum of money, in a bag or chest, and the whole of that money became a specific legacy. Thus, also, in Hinton v. Pinke, a sum of money was left, which, at the death of the testator, was in the hands of a third party, and was stated in the will to be so, that money was esteemed a specific legacy. So, also, was a rent charge upon a lease; for it was evident that only one rent charge, or one lease, could be understood. In like manner, the bequest of a bond, and the amount of the testator’s stock, in a particular fund, as well as a legacy out of the profits of a farm, which the testator directed to be carried on, as was decided in the case of Mayott v. Mayott, the principle being fully developed, in the action of All Souls’ College against Coddington. Specific legacies may also be carved out of a specific chattel, as is partly shown in the case of Hinton v. Pinke, just cited; as, where the testator gives only part of a debt, instead of the whole, which is owing to him, at the time of his death, by a third party.

Yet, in order to insure the descent of a specific legacy, which is always ceteris paribus, more valuable than a general one, it is requisite that the testator should not nullify by any other expressions in his will the terms of a specific legacy; as was decided in the case of Parrot v. Worsfield where a testator, reciting that he had £1500 in the 5 per cents., gave it to one party, and then gave all other stock that he might be possessed of at his death to another, and, in consequence of the manner in which it was put, the latter of these two legacies was made subject to his debts, in preference to the former, when, in fact, there is little doubt but that the testator intended that both should in that respect stand on an equal footing. Much of the same kind of mischief arose in the case of Willox v. Rhodes, where the testator gave a number of legacies, and added:—“I guarantee my estates at D. for the payment of the above legacies;” while, in an after part of his will, he gave many other legacies, it was held, that if the estates at D. should prove insufficient to satisfy the claims of the first class of legatees, the legacies were not specific, and the whole of the personal estate was proportionably liable for them. But, in the case of Sayer v. Sayer, where the testator devised the whole of his personal estate, at a particular place, to his wife, the bequest was held to be as specific as if he had enumerated every particular of the property there.

In some instances mistakes have arisen, in consequence of the misapprehension of particular terms by the parties who use them; and not a little care is often required to come at the precise meaning of a bequest. Thus, in a general sense, the word money only implies either the coin of the realm, or the legal tender for it, bank notes; or else such equivalent as the state may have given in lieu of money, or that which is used to express the money lent to the state, and for the security of which, the faith of the state is pledged, or the public stocks; and, therefore, promissory notes, or bills of exchange, and other similar choses in action are not included in the meaning of the phrase, yet, in some instances, they will be construed as meaning such. This was shown in the case of Read v. Stewart, where the testatrix had bequeathed a cabinet, and all that it contained, “except money,” and part of the contents was a promissory note of value, and of a date payable anterior to her will, and, of course, to her death, it was held that the terms of the bequest did not pass the note.

Yet a liberal construction is put upon the terms of a bequest, and an evident mistake will be rectified, as in the case of Penticost v. Ley, where the testatrix made a bequest of £1,000, long annuities, standing in her name, or in trust for her, while, in fact, she had no long annuities whatever, but had really £1,000 in the 3 per cents. reduced, it was held, that this, and this only, could be the sum to which she alluded, and it was accordingly appropriated to the legatee. Still, it must be a mistake respecting which there can be no apprehension, or the legacy will fail; as in Humphreys v. Humphreys, where the testator was indebted on a mortgage, which he had paid off previously to his death, out of a fund of £5,000, which he had in the 3 per cents., neglecting to alter a provision in his will, by which he had left the whole of his stock in these 3 per cents. (which he specified as being about £5,000), except £500, which he left to another party, devising at the same time other specific parts of his property to be sold, and the produce to be applied in discharge of the mortgage; the circumstance of his having himself applied this fund to the discharge of the mortgage was held to have redeemed the legacy altogether, and the legatees could obtain no remedy against those other parts of the general estate which were directed to be applied to the redemption of this mortgage. This, however, was contrary to the general rule of equity, and it may be presumed that it would have been set aside on review. Lord Bathurst, it is true, held the same principle, at least to a certain extent, in the case of Carteret v. Carteret, where the testator gave to one of his connections “one thousand four hundred pounds, for which he had sold his estate that day,”—which sum he received, and paid into his bankers, but drew eleven hundred of it out the same day, leaving the other three hundred there still; his lordship decided it to be a legacy of quantity, and therefore general, and subject to the diminution occasioned by the draft of the testator; but Lord Thurlow disallowed the distinction set up by Lord Bathurst, and decided that a legacy of “the principal of A.’s bond for three thousand five hundred pounds,” was a specific legacy, although the sum was named.

Thus, the principle appears to be evolved, that a legacy, in order to be specific, and saved from any general abatement suffered by other legacies, must be stated precisely as a certain thing or fund, or a particular portion of a certain thing or fund, so that it may be whole in itself, though possibly a part, but a plainly indicated part, of something particularly described in the will.