Mecum v. Stoughton

• Decision Date: 27 February 1913
• Citation: 86 A. 52,81 N.J.Eq. 319
• Parties: MECUM v. STOUGHTON et al.
• Court: New Jersey Court of Chancery

86 A. 52

81 N.J.Eq. 319

MECUM

v. STOUGHTON et al.

Court of Chancery of New Jersey.

Feb. 27, 1913.

Bill by Charles Mecum, executor, etc., against H. Clay Stoughton and others for the construction of a joint will. Will construed, and decree advised.

The bill is filed for the construction of a joint will made by two sisters. The will provides that, in the event of either dying before the other, the survivor shall take for life the entire estate of the one dying first, with power to dispose of it. It then provides that, after the death of the survivor, the property not then disposed of shall be disposed of in the manner therein stated. Both testatrices are now deceased. The will contains a number of bequests of money to charities and to relatives, and a number of bequests of stocks of corporations to various legatees, and also bequests of household goods, and concludes with a residuary bequest and devise to certain persons therein named.

At the hearing all questions were disposed of, except the single question whether certain bequests of capital stock of the Lehigh Valley Railroad Company are general or specific legacies. There are several bequests of stock of that company, but all are in substantially the following form: "We give and bequeath unto—, forty shares of the capital stock of the Lehigh Valley Railroad Co."

The doubts which are suggested touching these bequests of stock of the Lehigh Valley Railroad Company arise from the circumstance that at the date of the will testatrices owned in the aggregate exactly the number of shares of stock of that company which are given by the will; but at the death of the surviving testatrix some of that stock had been sold.

Lewis Starr, of Camden, for complainant.

J. Forman Sinnickson, of Salem, and John G. Horner, of Camden, for defendants.

LEAMING, V. C. (after stating the facts as above). It will be observed that the legacies in question are in form general. The single inquiry is whether they must be regarded as specific, and subject to ademption, from the circumstance that at the date of the will testatrices owned the exact number of shares of stock of the Lehigh Valley Railroad Company that are in the aggregate bequeathed by the will.

There are a few adjudicated cases to the effect that the circumstance named is a sufficient indication of a testator's intent to bequeath the very shares owned by him at the date of the will to justify a court in treating such a bequest as specific, notwithstanding the fact that the bequest is, in form, general; but the great preponderance of authority is undoubtedly to the contrary.

The rule, as stated by Prof. Pomeroy in 3 Pomeroy's Eq. Jur. § 1132, is as follows: "A gift of any chattel or chattels—as a white horse, or furniture, or goods, or of any kind of securities, such as shares in any stock, or government bonds, and the like—may be general, and will be general, even though the testator owns at the time articles of the same kind, or even owns an article precisely answering to the description, unless the language of the bequest describes and certainly points out as the thing given some identical article, horse, furniture, goods, or some identical shares of stocks, bonds, or fund, existing as a part of testator's estate." In note 2 to section 1130 touching corporate stock, the same author says: "Where the bequest is merely descriptive generally of the stock, shares, etc., given, the legacy is not specific, although the testator may at the time own stock answering the description, and even may own the exact number of shares given; e. g., as where he gives so much stock, or so many shares, or the like, not using additional words pointing to any identical shares, as 'my' stock, or the stock which T now possess,' etc." This rule, as stated in 18 Am. & Eng. Enc. of Law (2d Ed.) p. 713, is as follows: "When bonds or other securities are disposed of by will, but it does not designate them as comprising a part of the testator's estate, and the legacy may be satisfied by delivery to the legatee any securities of the kind and the value or amount specified, it is a general legacy, though the testator owned securities of the kind specified, and corresponding exactly to the number of shares or amounts bequeathed." The same rule is defined in 40 Cyc. p. 1875, as follows: "Where a testator makes bequests of stocks, bonds, or other securities, but the will does

not designate them as composing part of testator's estate, and the legacy may be satisfied by delivering to the legatee any securities of the kind and value or amount specified, the legacy should, according to a preponderance of authority, be regarded as general, even though the testator owned securities of the kind specified, corresponding to the number of shares or amount bequeathed."

The rule is defined in Roper on Legacies, *p. 205, as follows: "But it seems to be settled that mere possession by the testator at the date of his will of stock or securities of equal or larger amount than the bequest will not (without words of reference, or an intention appearing upon the will that he meant the identical stock of which he was possessed) make such bequest specific."

See, also, to the same effect note to Ashburner v. Magguire in 2 White & Tudor's Leading Cases in Equity, *pp. 258, 259. Note to Snyder's Estate in 10 Ann. Cas. 492.

There are, however, as already suggested, a few reported cases which are not in harmony with the generally accepted rule above stated. In these cases, which I regard as exceptional, it has been held that, where at the date of the will testator owned stock of the kind and of the exact amount specified in the bequest, that circumstance should be regarded as sufficient to establish an intent upon the part of testator to bequeath that specific stock, and thus render the legacy specific and subject to ademption in the event of testator subsequently disposing of a part or all of such stock. That view is adopted in Jeffreys v. Jeffreys, 3 Aik. 120. That was a decision rendered by the Master of the Rolls in the year 1743, and the decree appears to have been subsequently affirmed by Lord Hardwicke. That decision is based upon the following distinction which I have not seen elsewhere recognized: "Corn or sheep are in their nature perishable, but, when a man buys stock, he buys it to have continuance as long as he lives, and therefore when he devises any quantity of corn or sheep, though he has such quantity at the time of making the will, yet he cannot, from the nature of the thing, be taken to intend that the individual...