Thayer v. Paulding

• Decision Date: 22 October 1908
• Citation: 200 Mass. 98,85 N.E. 868
• Parties: THAYER v. PAULDING et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

200 Mass. 98

85 N.E. 868

THAYER v. PAULDING et al.

Supreme Judicial Court of Massachusetts, Worcester.

October 22, 1908

COUNSEL

J. Otis Sibley, for plaintiff.

Dodge & Taft, for defendants.

OPINION

KNOWLTON C.J.

In the will of Edward Greene there is a legacy to James P. Paulding of '125 shares of the capital stock of the Rand Drill Company of New York, a corporation, * * * together with all the rights and privileges which may now or hereafter appertain to the same.' Within less than one year after the death of the testator, dividends on this stock, amounting to $825.16, were paid to the petitioner as executor, and the question presented is whether these dividends should be paid to the legatee, or used as a part of the general funds of the estate. This involves the question whether the gift of this amount of stock is a specific legacy or a general legacy. If it is a specific legacy it covers this number of shares of stock held by the testator at the time of making his will together with all their accretions from the time of his death to the time when the legacy should be turned over by the executor to the legatee, namely, to the expiration of one year from the time of the testator's death. If it is a specific legacy there would have been an ademption of it which would have left the legatee with nothing, if the particular property had ceased to exist, or been disposed of by the testator in his lifetime. On the other hand, if it is a general legacy it gave the legatee a right which vested on the death of the testator to have this number of shares delivered to him by the executor at the expiration of a year from the death of the testator, and this right had no reference to any particular shares. If a testator making such a gift had no such shares at the time of his death, or if he had them and for any reason the executor saw fit to sell them soon afterward, in the settlement of the estate, it would be the executor's duty to procure them by purchase before the expiration of a year from the time of the testator's death and then to deliver them to the legatee. Such procurement and delivery would satisfy the requirements of the will. Johnson v. Goss, 128 Mass. 433-436.

It is agreed by the parties that at the time of the execution of his will the testator owned 375 shares of this stock and continued to own them to the time of his death. If we consider that part of the language which purports only to give the stock, disregarding the words 'together with,' etc., we think it plain on the authorities that they did not create a specific legacy. The number given was only a part of a large number of shares that the testator owned. See White v. Winchester, 6 Pick, 48-52. There was no specification of what part, otherwise than by the quantity. There is no designation, such as the use of the word 'my,' to confine the gift to any particular shares. Johnson v. Goss, 128 Mass. 433-436; Slade v. Talbot, 182 Mass. 256, 65 N.E. 374, 94 Am St. Rep. 653; Harvard v. Tufts, 151 Mass. 76, 23 N.E. 1006, 7 L. R. A. 390; Foote, Appellant, 22 Pick. 299; Tomlinson v. Bury, 145 Mass. 346, 14 N.E. 137, 1 Am. St. Rep. 464. There is no bequest to the same legatee of both stock and money, such as sometimes has been much relied upon as showing an intention to make the legacy specific. See Metcalf v. Parrish, 128 Mass. 370. See, upon the general subject, Tifft v. Porter, 8 N. Y. 516; Sponsler's Appeal, 107 Pa. 95. See Snyder, 217 Pa. 71, 66 A. 157, 11 L. R. A. (N. S.) 49, 118 Am. St. Rep. 900; Dryden v. Owings, 49 Md. 356; Davis v. Cain, 36 N.C. 304.

If this is to be treated as a general legacy, the question arises whether the words, 'together with all the rights and privileges which may now or hereafter appertain to...