New Albany Trust Co. v. Powell

• Decision Date: 27 June 1902
• Citation: 29 Ind.App. 494,64 N.E. 640
• Parties: NEW ALBANY TRUST CO. et al. v. POWELL et al.
• Court: Indiana Appellate Court

29 Ind.App. 494

64 N.E. 640

NEW ALBANY TRUST CO. et al.

v.POWELL et al.

Appellate Court of Indiana, Division No. 1.

June 27, 1902.

Appeal from circuit court, Jefferson county; P. E. Bear, Judge.

Suit by William H. Powell, as executor of Harvey B. Foster, deceased, against the New Albany Trust Company, as guardian of Willie Trow Foster, and others. Special findings of facts were made, and conclusions of law stated, and the defendant trust company and Willie Trow Foster appeal. Affirmed.

C. L. Jewett and H. E. Jewett, for appellants. S. E. Leland, for appellees.

WILEY, C. J.

On petition of the parties, this cause was advanced. Appellee Powell, as executor, filed his petition in the court below, asking that the will of Harvey B. Foster, deceased, be construed. The New Albany Trust Company (as guardian of Willie Trow Foster), Genevieve Foster, and Willie Trow Foster were made parties. They each filed an answer to the petition. Upon proper request the court made a special finding of facts, and stated its conclusions of law thereon. The New Albany Trust Company, guardian, and Willie Trow Foster, each excepted to the conclusions of law. Under the assignment of errors, the exceptions to the conclusions of law present the only questions for decision. Briefly stated, the facts specially found are as follows: That on June 15, 1891, Harvey B. Foster executed his last will and testament: that he was then a resident of Jefferson county, Indiana, where he resided until the time of his death, which occurred February 2, 1901; that he left as his only heirs at law appellee Genevieve Foster, who was a childless second wife, and appellant Willie Trow Foster, a granddaughter; that said will was duly admitted to probate in the Jefferson circuit court February 7, 1901, and was in full force and effect. Omitting the formal parts, said will is as follows: “Item First. I will that all my just debts and funeral expenses be first paid. Item Second. I will and bequeath to my granddaughter, Willie Trow Foster, the sum of five thousand dollars in money and two hundred shares of the capital stock of the Madison Gaslight Company, of Madison, Indiana. But in the event that said Willie Trow Foster should die before I do, then I will and bequeath two thousand dollars of said money to said Willie's mother, Mary G. Foster; and the residue of said five thousand dollars and said two hundred shares of the capital stock of the Madison Gaslight Company I will to my beloved wife, Genevieve Foster. Item Third. I will, devise, and bequeath to my beloved wife, Genevieve Foster, all my real estate and personal property, in fee simple, of every kind and description, and wheresoever situated, after paying the above legacy mentioned in item second of this, my last will.” The court found that Powell was the duly appointed and qualified executor of said will; that Willie Trow Foster survived said testator; that she was an infant, and that appellant trust company was her guardian; that when said will was executed said testator was the owner of 259 shares of the capital stock of the Madison Gaslight Company, and was then acting as president and secretary of said company; that said Gaslight Company had a capital stock of seventy-five thousand dollars, divided into shares of $25 each, and that such shares are now of the value of $20 each; that said 259 shares of said stock owned by the testator at the time he executed his will were held by him until December 14, 1894, when he sold 159 shares, and that from that time to the date of his death be owned 100 shares, and no more; that said testator had a personal estate of the value of $23,000, consisting mostly of stock in various corporations; that the executor has paid to appellant trust company, as guardian of Willie Trow Foster, the sum of $5,000 in money, as provided in item 2 of the will; that on December 21, 1895, said testator conveyed to appellee Genevieve Foster real estate of the value of $10,000, which said conveyance was a gift; that said executor is ready and willing to deliver to said trust company, as guardian, 100 shares of the stock of the Madison Gaslight Company, which were owned by said testator at the time of his death; that said executor has refused to deliver to said trust company or to said Willie Trow Foster any stock in excess of said 100 shares; that said executor claims that under the provisions of said will, and from the fact that said testator only left 100 shares of such stock at his death, the executor is not bound to deliver to the guardian or its ward any shares of stock in excess of 100 shares. The court also found that said trust company and its ward are ready and willing to receive from said executor said 100 shares of stock, but only in partial settlement of the bequest of 200 shares as specified in the will, and insist that it is the duty of the executor to deliver to them 200 shares. The findings show that all legacies and demands against said estate have been paid, except the legacy to Willie Trow Foster of said 200 shares of stock; that there remains in the executor's hands more than $7,000 in cash, stocks, and notes; that 100 additional shares of the capital stock of the Madison Gaslight Company can be procured by the executor for $2,000; and that appellants are willing to accept the sum of $2,000 in cash in lieu of said additional shares of stock. The court found as a fact that there exists between the parties an actual controversy as to whether said bequest of 200 shares of the capital stock of the Madison Gaslight Company was a general or specific legacy to Willie Trow Foster. As conclusions of law, the court stated (1) that said bequest of 200 shares of stock was a specific bequest and legacy; (2) that the fact that the testator owned but 100 shares of said stock at the time of his death diminished said specific legacy to that number of shares, which the said Willie Trow Foster is entitled to receive, and no more; (3) that it is the duty of said executor to deliver to said trust company for its said ward 100 shares of the capital stock of the Madison Gaslight Company in his possession, and no more, and the same shall be in full of that portion of the bequest and legacy in controversy.

The controverted question presented by the record must be determined by construing that part of item 2 of the will in which the testator bequeathed to his granddaughter 200 shares of the capital stock of the Madison Gaslight Company. There is no controversy over any other provision of the will. If the bequest to appellant Willie Trow Foster of said shares of stock was a specific legacy, then she will be entitled to receive only that portion of said stock owned by the testator at the time of his death. It is important to first determine what constitutes a specific legacy. In 18 Am. & Eng. Enc. Law (2d Ed.) p. 714, the following definition is given: “A specific legacy or devise is a gift by will of a specific article or part of the testator's estate, which is identified and distinguished from all other things of the same kind, and which may be satisfied by the delivery of the particular thing.” This definition has been adopted by the courts both in this country and in England, as will appear by a reference to the numerous citations following the above quotation. See, also, Roquet v. Eldridge, 118 Ind. 147, 20 N. E. 733. A general legacy is one payable out of the general assets of the testator's estate; being a gift of money or other thing in quantity, and not in any way separated or distinguished from other things of a like kind. 18 Am. & Eng. Enc. Law (2d Ed.) p. 711. In other words, a general legacy is one of quality, merely. See Myers' Ex'rs v. Myers, 33 Ala. 85; Harper v. Bibb, 47 Ala. 547; Kelly v. Richardson, 100 Ala. 584, 13 South. 785;Balliet's Appeal, 14 Pa. 451; Gilmer's Legatees v. Gilmer's Ex'rs, 42 Ala. 9. The distinction between a specific and a general legacy is clearly defined. The shares of...