Chapter XII: Section 1: As to Their Quality

Of legacies, there are two kinds--a general legacy, and a specific legacy; with the former is classed what is termed a pecuniary legacy. A legacy is general when it is so given as not to amount to the giving of some particular thing, or money, belonging to the testator. A legacy is specific when it is a bequest of a specified part of the testator's personal estate, which may be distinguished from all others of the same kind. Thus, for example, "I give a diamond ring" is a general legacy, which may be satisfied by the delivery of any ring of that kind; while "I give the diamond ring presented to me by A" is a specific legacy, which can only be fulfilled by the delivery of the identical ring mentioned; for the object is accurately referred to and described, and the legacy can only be satisfied by a delivery in _specie_.[108]

Again, if the testator have many brooches and horses, and bequeath "a brooch" or "a horse" to B, in these cases it is a general legacy; for it is uncertain, from the description, whether any _particular_ brooch or horse was intended; so that the bequest may be satisfied by the delivery of something of the same species as that mentioned.[109] But a bequest "of such part of my stock of horses as A shall select, to be fairly appraised, to the value of $800," or "of all the horses which I may have in my stable at the time of my death," is specific.[110]

A bequest to a wife in the following words: "I give and bequeath to my wife, A, the annual sum of £300 sterling each and every year during her natural life, in order that she may live in quiet and easy circumstances," and which, with other legacies afterwards given to her, was expressed to be in lieu of dower, was held to be specific.

If there be an error in the description of the chattel intended to be specifically given, the mistake may be of such a nature as not to permit a failure of the specific bequest. If, therefore, A, having _one_ horse only, which is white, bequeath it to B by the words "my _black_ horse," the mistake is obvious and easily remedied, and the legatee will be entitled to the specific horse, although it be not of the color described; for there can be no doubt of that being the horse _intended_ for him, and the legacy will be specific.[111] If the testator had _two_ white horses of different values, and, intending one of them in particular for B, bequeathed it to him by the words, "my white horse," it is presumed that evidence is admissible to show which of the two horses was intended.[112]

As respects the doctrine of specific bequests, the intention of testators upon this subject, as in every question of the construction of wills, is the principal object to be ascertained; and it is, therefore, necessary that the intention be either expressed in reference to the thing bequeathed, or otherwise clearly appear from the will. The intention must be clear, and courts in general are averse to construing legacies to be specific.[113]

With respect to legacies for money, securities for money, debts, etc., under some circumstances even pecuniary legacies are held to be specific, as of a certain sum of money in a certain bag or chest;[114] or of £200, the balance due the testator from his partner on the last settlement between them;[115] but a legacy of "£400 to be paid to A," in cash, is a general legacy.[116]

Stock or government securities, or shares in public companies, may be specifically bequeathed, where, to use the expression often applied, there is a clear reference to the "corpus" of the fund. Thus, the word "my," preceding the word stock or annuities, has been several times adjudged sufficient to render the legacy specific; as where the bequest is of "_my_ capital stock of £1,000 in the India Company's stock."[117] So a bequest of all the testator's right, interest, and property in thirty shares of the Bank of the United States of America is a specific legacy.[118]

The distinction between these two sorts of legacies is of the greatest importance; for, in the settlement of an estate by executors or administrators, articles not specifically bequeathed are first to be sold to pay debts and other legacies; and, if there be a deficiency to pay debts, the general or pecuniary legatees have first to abate ratably, or contribute in proportion to the value of their individual legacies.[119] The principle on which this is done is, the presumed intention of the testator to give a preference to those legatees, by severing particular parts of his personal estate from the rest. But another distinction between them is, that, if the particular thing bequeathed happens, during the lifetime of the testator, to become extinguished, or in some way disposed of by him, which, in law, is called an _ademption_, the legacy fails, which cannot be the case with a general legacy; so that, though specific legacies have, in some respects, the advantage of those that are general, yet, in other respects, they are distinguished from them to their disadvantage.[120]

The bequest of all a man's personal estate generally is not specific; the very terms of such a disposition demonstrate its generality.[121] But if a man, having personal property at A and elsewhere, bequeath all his personal estate _at_ A to a particular person, the legacy is specific; and, if there is a deficiency of assets to pay other legacies, such a legatee shall not be obliged to abate with the other legatees.[122] So, where the testator bequeaths the residue of all his personal estate _in the Island of Jamaica_, this is a specific legacy.[123]

It has been held in Pennsylvania that a pecuniary legacy may be exempt from abatement, as in the case of a wife or child destitute of other provision, or where a legacy is given in lieu of dower.[124]