LEGACIES—GENERAL, SPECIFIC, LAPSED,
VESTED, DEMONSTRATIVE.
Legacies are gifts of the property of a deceased person to his surviving friends or relatives, expressed in the deed or will by which his disposable property is governed after death. They are styled general when a certain amount of property is bequeathed to a particular person, without any certain fund being appropriated for its payment. They are specific when the particular things are named, as well as the particular persons to whom those things are bequeathed. Legacies lapse, or are lost to the party or his representatives, or friends, when some particular condition is annexed to the bequest, which condition has not, or cannot be, either through negligence or impossibility, complied with. They are, on the contrary, vested, or made the property de jure of the party to whom they are left, when, through his own act or without it, certain conditions, which were predicated by the terms of the will, have been fulfilled; although the legatee may not come into possession of his rights for years perhaps after the death of the testator. Farther, legacies are demonstrative when it is evident that, under a certain set of circumstances, certain persons are intended to inherit certain portions of property, and those certain circumstances arise by which the demonstrative legatees acquire their rights. These several terms will be clearer when they are farther explained and illustrated by examples, to which we will immediately proceed.
GENERAL LEGACIES.
General legacies are such as are specified in a mere statement of quantity; as, A leaves to B £500, to be paid out of his personal estate, without specifying any particular portion of property out of which the sum is to be paid. Nor does it matter whether it be of money or stock; and where the testator has not the stock stated in his will, but has the wherewithal to purchase it at his death, the executor is bound to procure so much stock for the legatee. But if the terms of the will be specific, as “so much stock, standing in his name,” and he has no stock whatever, the legacy would share the fate of a specific legacy, and fail. The purpose, however, to which a general legacy is directed to be applied, will not alter its nature, however specific the object may be. Personal annuities, given by will, are also general legacies.
Legacies may be specific in one sense and pecuniary in another—being specific when they are given out of a particular fund, and not out of the estate at large; and pecuniary, as consisting only of definite sums of money, and not amounting to the gift of the fund itself, or any portion of it.
In the case of the Attorney General v. Parkin, Lord Camden recognized the distinction between a legacy of a certain sum due from a particular person, and a legacy of such debt generally; considering the former as a legacy of quantity, while the latter he deemed to be specific.
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.