If there be an error in the description of the chattel intended to be specifically given, the mistake may be of such a nature as not to permit a failure of the specific bequest. If, therefore, A, having one horse only, which is white, bequeath it to B by the words “my black horse,” the mistake is obvious and easily remedied, and the legatee will be entitled to the specific horse, although it be not of the color described; for there can be no doubt of that being the horse intended for him, and the legacy will be specific.[111] If the testator had two white horses of different values, and, intending one of them in particular for B, bequeathed it to him by the words, “my white horse,” it is presumed that evidence is admissible to show which of the two horses was intended.[112]
As respects the doctrine of specific bequests, the intention of testators upon this subject, as in every question of the construction of wills, is the principal object to be ascertained; and it is, therefore, necessary that the intention be either expressed in reference to the thing bequeathed, or otherwise clearly appear from the will. The intention must be clear, and courts in general are averse to construing legacies to be specific.[113]
With respect to legacies for money, securities for money, debts, etc., under some circumstances even pecuniary legacies are held to be specific, as of a certain sum of money in a certain bag or chest;[114] or of £200, the balance due the testator from his partner on the last settlement between them;[115] but a legacy of “£400 to be paid to A,” in cash, is a general legacy.[116]
Stock or government securities, or shares in public companies, may be specifically bequeathed, where, to use the expression often applied, there is a clear reference to the “corpus” of the fund. Thus, the word “my,” preceding the word stock or annuities, has been several times adjudged sufficient to render the legacy specific; as where the bequest is of “my capital stock of £1,000 in the India Company’s stock.”[117] So a bequest of all the testator’s right, interest, and property in thirty shares of the Bank of the United States of America is a specific legacy.[118]
The distinction between these two sorts of legacies is of the greatest importance; for, in the settlement of an estate by executors or administrators, articles not specifically bequeathed are first to be sold to pay debts and other legacies; and, if there be a deficiency to pay debts, the general or pecuniary legatees have first to abate ratably, or contribute in proportion to the value of their individual legacies.[119] The principle on which this is done is, the presumed intention of the testator to give a preference to those legatees, by severing particular parts of his personal estate from the rest. But another distinction between them is, that, if the particular thing bequeathed happens, during the lifetime of the testator, to become extinguished, or in some way disposed of by him, which, in law, is called an ademption, the legacy fails, which cannot be the case with a general legacy; so that, though specific legacies have, in some respects, the advantage of those that are general, yet, in other respects, they are distinguished from them to their disadvantage.[120]
The bequest of all a man’s personal estate generally is not specific; the very terms of such a disposition demonstrate its generality.[121] But if a man, having personal property at A and elsewhere, bequeath all his personal estate at A to a particular person, the legacy is specific; and, if there is a deficiency of assets to pay other legacies, such a legatee shall not be obliged to abate with the other legatees.[122] So, where the testator bequeaths the residue of all his personal estate in the Island of Jamaica, this is a specific legacy.[123]
It has been held in Pennsylvania that a pecuniary legacy may be exempt from abatement, as in the case of a wife or child destitute of other provision, or where a legacy is given in lieu of dower.[124]
Section 2.—Legacies Vested or Contingent.
A legacy is said to be vested when the right to it, either in the present or in the future, is absolutely given to a person, and does not depend upon the happening of some event. It is contingent, if the payment of it is dependent upon the happening of some event; as, if a person shall marry, or attain a certain age. The cases establish the principle that contingent or executory interests, though they do not vest in possession, may vest in right, so as to be transmissible to the executors or the administrators of the party dying before the contingency on which they depend takes effect; but where that contingency is the endurance of life of the party till a particular period, the interest will obviously be altogether extinguished by his death before that period.[125]
The general principle as to the lapse of legacies by the death of the legatee may be stated to be, that if the legatee die before the testator’s decease, or before any other condition precedent to the vesting of the legacy is performed, the legacy lapses, and is not payable to the executors or the administrators of the legatee.[126] But this general rule may be controlled by the manifest intention of the testator appearing upon the face of the will, that the legacy shall not lapse, and by his distinctly providing a substitute for the legatee dying in his lifetime.