Walls v. Stewart
| Decision Date | 12 June 1851 |
| Citation | 16 Pa. 275 |
| Parties | Walls <I>versus</I> Stewart. |
| Court | Pennsylvania Supreme Court |
The question in this case is, whether the legacy of $600 given by John Walls to the children of Joseph Walls is specific or demonstrative. If specific, it is adeemed by the sale made by the testator in his lifetime of the land or fund upon which it was charged. If demonstrative, it is payable out of his general estate; 1 Rop. 150.
A specific legacy is the bequest of a particular thing, so described by the testator in his will as to distinguish it from all other things in his possession. In this case there is no specific money or thing given to Joseph's children; but simply a general legacy of six hundred dollars, with the property devised to Eli charged with its payment. If specific at all, it must be so in consequence of a specified property being appropriated to bear that burden, and that in such way as to manifest an intention to give the very property, or part of the very property itself, or the proceeds, under a direction to sell. Here no specified part of the farm devised to Eli was given as these children's legacy, or in lieu of it; neither were the proceeds of a sale of it, nor a rent issuing out of it, nor a term of which it was the subject, — which have been held to be specific. It is merely a bequest of $600, charged upon the land as a security for its payment, without any intention manifested to give the security itself, or any part of it. There is no adjudged case in which a legacy, considered one of quantity, with a fund, either real or personal, upon which its payment is merely charged, has been held to be specific; but such cases have been universally held to be in the nature of specific or demonstrative: 1 Roper 192-3. The land was to be merely subject to the payment, and it is not directed in the will that Eli shall pay it.
A demonstrative legacy is one of mere quantity, with a specific fund appropriated for its payment; the mention of the fund being considered rather by way of demonstration than of condition; rather showing how or by what means the legacy may be paid, than whether it shall be paid at all: Ward on Legacies 21, (margin;) 1 Roper 150.
A gross sum given out of a term or estate, considered demonstrative: 1 Roper 153-4; Ram on Assets 121, (marginal page.) A legacy charged upon land is demonstrative: Saville v. Blacket, 1 Peere Williams 778-9; Hoover v. Hoover, 5 Barr 351-56; Fowler v. Willoughby, cited in 1 Roper 154. Courts are desirous of constructing the bequests to be general: Walton v. Walton, 7 Johns. C. Rep. 263; Blackstone v. Blackstone, 3 Watts 339.
In the ninth item of the will, the testator directs, after the death of his wife, all his personal property to be sold, and after all the legacies thereinbefore bequeathed, &c. shall be paid, then disposes of the residue, which is an indication that the legacy in question is a general one.
A legacy to be paid by the devisee of a farm was held not specific: Ward on Legacies 29, (margin;) Cotterell v. Chamberlain, Bunbury's Rep. 32.
The opinion of the court was delivered June 12, by BELL, J.
As is truly said in Walton v. Walton, 7 Johns. Ch. Rep. 258, and elsewhere, in applying the doctrine of ademption, it is sometimes extremely difficult to perceive the distinction attempted to be kept up between specific, demonstrative, and general pecuniary legacies. Many of the English cases rest upon points of difference so refined as often to baffle the most microscopic examination; a subtlety referable to an anxious desire to treat bequests as general or demonstrative, wherever the slightest pretext can be found for such a construction. This is particularly observable where a bequest is charged on or refers to a personal fund as the source of payment; of which the English books offer a large variety of perplexing instances, owing to the very general practice which there obtains of investing in stocks and other public securities. The courts are disinclined to recognise specific legacies, because of their liability to sink with the destruction of the thing bequeathed or the fund charged. But as it was obviously impossible to esteem as purely pecuniary many of the testamentary gifts which judges inclined to withdraw from the class of specific legacies, they were driven to borrow from the civilians a term thought to be descriptive of a species of donation holding a middle place between specific and pecuniary, the only kinds distinctly recognised when Swinburne wrote. They are called demonstrative, and, like general legacies, are gifts of mere quantity, but differ from these by being referred to a particular fund for payment. They are so far general, that if the particular fund be called in or fail, the legatees will be permitted to receive their legacies out of the general assets; yet so far specific as not to be subject to abatement, with general legacies, on a deficiency of assets. They are thus specific in one sense, and pecuniary in another; specific, as given out of a particular fund, and not out of the estate at large; pecuniary, as consisting only of definite sums of money, and not amounting to a gift of the fund itself, or any aliquot part of it, the mention of the fund being considered rather by way of demonstration than of condition — rather as showing how or by what means the legacy may be paid, than whether it shall be paid at all: Smith v. Fitzgerald, 3 Vesey & B. 2; Ward on Legacies 21. A familiar instance, given in the last book cited, is of a bequest of £10, which J. S. owes to the testator: when in truth J. S. does not owe any such money, the gift fails; but if he gives £10, and wills that the same be paid out of the money he has in a certain place, or out of a particular debt due to him, the devise is good, notwithstanding there should appear to be no money in the place or no such debt owing. The distinction seems to be this: — If a legacy be given with reference to a particular fund, only as pointing out a convenient mode of payment, it is considered demonstrative, and the legatee will not be disappointed though the fund totally fail. But where the gift is of the fund itself, in whole or in part, or so charged upon the object made subject to it as to show an intent to burden that object alone with the payment, it is esteemed specific, and consequently liable to be adeemed by the alienation or destruction of the object. In this, as in other questions springing from the construction of wills, the intention of the testator is principally to be ascertained, and it is said to be necessary that the intention be either expressed in reference to the thing bequeathed, or otherwise clearly appear from the will, to constitute a legacy specific. If it be manifest there was a fixed and independent intent to give the legacy, separate and distinct from the property designated as the source of payment, the legacy will be deemed general or demonstrative, though accompanied by a direction to pay it out of a particular estate or fund specially named. Of the application of this principle, Mann v. Copland, 2 Mad. 223, is a pregnant example. There a testator bequeathed to his servant an annuity of £10 during life, to be paid out of the rents of a certain freehold, if the testator's brother would cancel a conveyance theretofore made of the freehold; if not, he directed £200 to be secured out of £2000, 5 per cent. Navy, in trust for the servant during life. The question was, whether the bequest was general or specific, for, if the latter, it could not take effect. Sir THOMAS PLUMER, V. C., determined, on the construction of the will, the legacy was not specific, for he thought the intention was clearly marked to give the legacy in every event: that it was not so connected with the fund as to fail if there was no such fund, it appearing there was a fixed, independent, separate, and distinct intent to give the legacy, the particular property out of which it was to be paid being a secondary thought. The determination was evidently influenced by the direction consequent upon the anticipated refusal of the testator's brother to cancel the prior conveyance of the freehold. In Long v. Short, 1 P. Wms. 403, where, excepting the feature just noticed, the disposition was similar, the determination was different. It was a bequest of £40 a year to B for life, out of the testator's chattel estate at R. and £10 a year to C for life, out of the same estate which he devised to D. And Lord Chancellor COWPER decreed these bequests to be specific, remarking that the devise of a rent-charge out of a term is as much a specific devise as...
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