Nusly v. Curtiss

• Decision Date: 07 May 1906
• Citation: 36 Colo. 464,85 P. 846
• Parties: NUSLY et al. v. CURTISS et al.
• Court: Colorado Supreme Court

85 P. 846

36 Colo. 464

NUSLY et al. v. CURTISS et al.

Supreme Court of Colorado

May 7, 1906

Error to County Court, City and County of Denver; Ben B. Lindsey Judge.

Action by Rose C. Nusly and another against Clarence Church Curtiss and others, for the construction of a will. From an adverse decree, plaintiffs bring error. Affirmed.

F. A. Williams, for plaintiffs in error.

Wolcott Vaile & Waterman and H. H. Dunham (Wm. W. Field, of counsel) for defendants in error.

CAMPBELL, J.

In this proceeding the plaintiffs in error asked for an interpretation of the second clause of the last will of Eliza C. Gallup, deceased, under which they claim as legatees. It reads: 'Second. Any and all sums of money which may at any time hereafter become due and payable to me or my estate by or under any insurance policy upon the life of my husband, Francis Gallup, which may heretofore have been insured, payable to me or in my favor, I will and bequeath to the five sisters of my said husband or to such of them as may be living at the time any such insurance moneys shall be actually collected, and received by my executors to be divided equally among said sisters or the survivors of them as hereinbefore provided.' The facts pertinent to the only question argued on this review are that before the execution of the will an insurance policy for $5,000 upon the life of Francis Gallup was issued. About a year after its execution he died, and the amount of the policy on his life ($5,000) was received by the testatrix herself in her lifetime, which she commingled with her other funds, and afterwards reinvested. Not only was this amount not actually collected or received by the executors, but it was not traceable or identified in their hands. At the time of the death of the testatrix, which was more than 11 years after the will was executed, the plaintiffs in error, the five sisters of Francis Gallup who were mentioned in the will, were all living.

The only question raised and decided below, and the only one presented here, is as to the nature of this legacy. The plaintiffs in error say that it is a demonstrative legacy, and therefore it was not adeemed by the testatrix in her lifetime. The defendants in error say that it was a specific legacy, and was subject to be, and as a matter of fact was, adeemed by the testatrix in her lifetime by collecting and commingling it with her other funds. It is sufficiently exact for our present purpose to say that a general legacy is one which is payable out of the general assets of a testator's estate, such as a gift of money or other thing in quantity, and not in any way separated or distinguished from other things of like kind. A specific legacy is a gift by will of a specific article, or a particular part of the testator's estate, which is identified and distinguished from all others of the same nature, and which is to be satisfied only by the delivery and receipt of the particular thing given. A demonstrative legacy partakes both of the nature of a general and specific legacy. It is a gift of money or other property charged on a particular fund in such a way as not to amount to a gift of the corpus of the fund, or to evince an intent to relieve the general estate from liability in case the fund fails. A specific bequest is subject to ademption, but such is not true of a general, or a demonstrative, legacy. The trial court held that this was a specific legacy, and was adeemed by the testatrix in her lifetime. Hence it construed the will as passing nothing to the plaintiffs in error as legatees. We are of opinion that the county court was right in its decision. Courts are not inclined to favor a specific bequest. If compatible with the language employed, they are disposed to interpret gifts as general, or demonstrative, legacies, but if the language is clear and unequivocal, and plainly evidences an intent of the testator to create a specific legacy, such effect must be given to that language. In ascertaining the nature of a given legacy, some, but not much, aid is to be derived from the adjudicated cases. The question is one of intent, to be gathered from the language used in creating it, in the light of the circumstances of the testator and the property which he is disposing of in his will. It will be observed that no particular or designated sum of money is mentioned in the clause of the will under consideration. It is a gift of 'any and all sums of money which may at any time hereafter become due and payable to me or my estate, by or under any insurance policy upon the life of my husband, Francis Gallup, which may heretofore have been insured.' It is only such sums of money that she bequeaths to the five sisters of her husband, or to such of them as may be living when the moneys shall be actually collected and received by her executors to be equally divided among them. This language plainly evidences an intent to bequeath not any particular sum of money to be payable primarily out of the proceeds of the insurance policies, and if the fund, for any reason, should fail, then out of the general assets of the estate; but, on the contrary, the testatrix thereby intended to give to the legatees named only such sums of money as her executors after her death actually collect and receive on certain insurance policies. The language employed negatives an intention to give them anything whatever if the moneys on the policies are received by her in her lifetime, or if the fund, for any other reason, fails or ceases to exist, as such, at her death.

Not only does the language of this will compel this interpretation, but the application of the appropriate principles of law, and the definition of the different kinds of legacies, lead to the same result. It will further be observed that this is not a gift of money 'out of' or 'from the proceeds of' any insurance policy, but it is a gift of the entire fund itself. It is just the same as if the policy itself had been bequeathed. The authorities clearly sustain the conclusion which we have reached. Many of them are collected in 18 Am. & Eng. Enc. of Law (2d Ed.) 711 et seq. It has been held that a gift of all the money due on a particular bond is as much a specific legacy as a gift of the bond itself. The same principle is applicable to an insurance policy. A gift of an insurance policy is no more specific than is a gift of all the money due thereon. Ashburner v. Macguire, 2 Bro. C. C. 108; Stout v. Hart, 7 N. J. Law, 414; McMahon's Estate, 132 Pa. 175, 19 A. 68. So a bequest of all or part of a specific fund or money which shall be received under decree in a certain suit, or a gift of 'all the amount of moneys and interest that may be recovered of and from K. for the sums due me on the purchase of the (described) estate,' each was held to be specific. Gilbreath v. Alban, 10 Ohio...