We are of opinion that the testator intended by this clause to give a specific legacy. The dividends are to be paid to James P. Paulding. So ordered.

In re PEARCE.

CRUTCHLEY v. WELLS.

(Supreme Court of Judicature, Chancery Division. [1909] 1 Ch. 819.)

Adjourned summons.

The testator, Sir W. G. Pearce, Bart., bequeathed to his wife all his furniture and effects, horses, carriages, motor cars, yacht, and jewelry, and gave his residuary estate to the plaintiffs, his executors and trustees, upon trust to pay the income thereof to his wife during her life, and after her death upon trust, in the events which happened, for Trinity College, Cambridge, absolutely.

The testator died on November 2, 1907, and his will and codicils were proved by the plaintiffs on December 18, 1907; the gross value of his estate being sworn at the sum of £469,764 12s. 2d.

The testator's widow died on December 23, 1907, having by her will appointed the defendants, S. R. Wells and G. G. Vertue, her executors, who proved her will on March 28, 1908.

After the death of the testator the plaintiffs incurred considerable expense in retaining a large part of the staff of men and women servants in one of the testator's houses in order to maintain and keep in good order the furniture and effects thereof, and to look after the

8 Compare Snyder's Estate, 217 Pa. 71, 66 Atl. 157, 11 L. R. A. (N. S.) 49, 118 Am. St. Rep. 900 (1907); Jewell v. Appolonis (N. H.) 74 Atl. 250 (1909); Allen v. Allen (N. J. Ch.) 74 Atl. 274 (1909). In the latter case the important question was whether the legacy was specific or demonstrative. "A specific legacy, if of stock, carries with it the dividends which accrue from the death of the testator, while a demonstrative legacy does not carry interest from the testator's death." Kindersley, V. C., in Mullins v. Smith, 1 Drew. & S. 204 (1860). "In deciding whether a legacy is specific or general [or demonstrative], the intention of the testator must control, as it must the decision of every other question involving the construction of wills. There is no technical, arbitrary rule requiring the use of particular words or expressions to make a bequest specific. Such intention may be manifested either by clear words, or by the general scope and texture of the instrument; but in the latter case, in the language of Lord Eldon, the inference should rest upon a strong, solid, and rational interpretation of the will." Van Fleet, V. C., in Wyckoff v. Perrine's Ex'rs, 37 N. J. Eq. 118 (1883).

"We regard it as a well-settled canon of interpretation that a bequest of a stated number of shares of stock of a designated corporation, without any reference to the particular shares intended to be bequeathed, is not specific. but general." Savage, J., in Palmer v. Palmer's Estate (Me.) 75 Atl. 130, 132 (1909).

On whether a bequest of stocks, bonds, or notes, is general, specific, or demonstrative, see 11 L. R. A. (N. S.) 49, note.

On the right to dividends as between the executor and the specific legatee of stock, see 45 L. R. A. 393, 394, note.

On the necessity and effect of assent by the executor to a legacy, see 50 Am. Dec. 485, note.

horses and carriages specifically bequeathed by the testator to his wife, and in paying the wages and expenses of the captain of the yacht, and in repairs to the yacht.

The plaintiffs assented to the different specific bequests at various dates between March 23, 1908, and May 14, 1908.

Subsequently the plaintiffs took out this summons for the determination of the question whether the estate of the testator's widow should bear any, and what, part of the costs of the upkeep, care, and preservation of the furniture and effects, horses and carriages, and yacht.

EVE, J., stated the facts, and continued: The question which I have to decide is whether the moneys which have been expended ought to come out of the general estate or ought to be borne by the specific legatee. Now it seems to be settled law that when an executor gives his assent to a specific legacy the assent relates back to the death of the testator, and the specific legatee is entitled to the profits accrued due from the time of the testator's death. That being so, it seems to me to be right and fair that the specific legatee should be charged with the costs of the upkeep, care, and preservation of the specific legacy from the time of the death until the executor's assent, and I shall make a declaration to that effect, and direct an inquiry what expenses were properly incurred in and for such upkeep, care, and preservation.

SECTION 2.-THE ABATEMENT OF LEGACIES AND DEVISES

In re TUNNO.

RAIKES v. RAIKES.

(Supreme Court of Judicature, Chancery Division, 1886. 45 Ch. D. 66.)

Caroline Tunno by her will bequeathed her diamonds to her trustees upon trust for sale, and out of the proceeds to lay out £600 in repairing a certain parish church, and to lay out £700 in the building of six laborer's cottages. The will contained a residuary bequest. The diamonds realized a little over £900. The gift of £700 for laborer's cottages having been declared void, the residuary legatee claimed that the £600 legacy must abate with the £700, as the £900 proceeds would not pay both.

CHITTY, J. Then a further point is raised, which is this: It is said on behalf of the residuary legatee that as the gift of £700, to be paid out of the proceeds of sale of the diamonds, has failed, there is a lapse for the benefit of the residuary legatee. The diamonds did

The statement of facts is rewritten and abbreviated.

COST. WILLS-42

not produce £1,300, but only about £900, and the argument on behalf of the residuary legatee is that this £600 legacy must abate; the vicar and churchwardens thus taking six-thirteenths of the £900 only. It is plain that as between the legatee of the £700, had that legacy taken effect, and the legatees of this £600, there must have been an abatement in the proportions named; but it does not follow that the residuary legatee can therefore claim seven-thirteenths of the £900. It is clear that if a specific property is given in trust for A. and B. as tenants in common in equal shares, and B. dies in the testator's lifetime, A. takes only one-half of the property; and it is equally clear that the same result follows whatever be its fractions in which the property is divisible among the specific legatees. It is clear, too, that if property be given upon trust for sale, with a direction to divide the proceeds into aliquot portions, the gift intended in each case is that of a specific proportion only of the fund which the testator is disposing of, and the argument on behalf of the residuary legatee proceeds on the assumption that on the true construction of this will there is a gift to these two legatees of aliquot portions of the proceeds of sale of the diamonds. It is plain to my mind that that is not the true interpretation of his gift. It is not as if the testatrix had said: "I direct my diamonds to be sold for not less than a sum of £1,300, and I thereout give £600 to the church, and £700 to some one else." That would have amounted to a gift of the fund in specific proportions; but she has not done that.

The foundation of the argument for the residuary legatee is the well-known case of Page v. Leapingwell, 18 Ves. 463. In that case the sum of the gift, to put it quite shortly, was: I distribute £10,000 in aliquot proportions among certain named legatees, with a gift over of the overplus moneys arising from the sale, upon certain trusts; and on the question of construction as to the meaning of the word "overplus," Sir William Grant held that it was equivalent, in that case, to a sum of £2,200, being the fractional remainder of the sum of £10,000; for the testator in that case, having directed a sale for not less than £10,000, Sir William Grant held that there was in substance a division of that sum, in specific or aliquot portions, among named legatees, who were to take as tenants in common in the proportions named, and it followed that if any one of them died in the lifetime of the testator, or if for any other reason the gifts to any of them failed, such event did not increase the benefit intended to be given to the other tenants in common.* That decision has no application to the present case. To my mind, it is not open to argue on the construction of this will, that there is a gift here in fractions or aliquot proportions, of the proceeds of sale; it contains no statement of the amount of the fund to be disposed of, nor of the sum for which the diamonds are to be sold, nor is there, in terms, any gift of the over

Compare Van Nest v. Van Nest, 43 N. J. Eq. 126, 13 Atl. 179 (1887), where a gift of "the remaining $800" of $1,300 was held not to be residuary, but to abate equally with the $500 given before.

plus, in the event of the jewels realizing more than £1,300. Had the diamonds realized £2,000, no disposition is made in the will of the surplus, except in so far as such surplus would be swept up by the general residuary gift. It is clear that, if these jewels had sold for say £2,000, the legatees of this £600 would not have taken any more than £600. They could not have claimed six-thirteenths of the £2,000.

In the result, the gift here is, to take a simple illustration, the same as if a testator were to give all the consols he was possessed of at his death upon trust for sale, and thereout to pay a legacy of £600 to A., and another legacy of £700 to B., in which case, there being no priority between the two, if the consols turned out to be insufficient, abatement would be necessary; but in any case the charges on the consols would have to be paid before the residuary legatee could come in. The argument for the residuary legatee in this case appears to me to be an attempt to creep into the shoes of the legatee of the £700 as if that legacy had taken effect; but this legacy has failed, and the residuary legatee is entitled to claim, not the legacy of £700, but only so much of the proceeds of sale of the diamonds as is not required to satisfy the £600 legacy; in other words, the residuary legatee can take nothing until this specific charge of £600 has been satisfied.

It is not necessary for me further to consider the authorities. The result is, I hold that the contention of the residuary legatee fails, and that this £600 legacy must be paid in full.10

Appeal of ARMSTRONG.

(Supreme Court of Pennsylvania, 1869. 63 Pa. St. 312.)

SHARSWOOD, J. It was settled in England by Long v. Short, 1 P. Wms. 403, that specific devises of land and specific bequests of personalty must abate ratably in case of a deficiency of assets for the payment of the bond debts of the testator, because both lands and chattels were liable in law for those debts, and it was equally the intention of the testator that the legatee should have the chattel, and the devisee the land. 1 Roper on Legacies, 254. In this state, where lands have always been assets for the payment of debts by simple contract as well as by specialty, the rule is general-that wherever there

10 "I come to the conclusion when an estate has been so depleted by the devastavit of an executor or trustee that there are not funds enough to pay the specific legatees in full, whatever there is must be devoted to the pay. ment of such legatees to the exclusion of the residuary legatees. There is no residuary estate to be distributed." Clarke, J., in Farmers' Loan & Trust Co. v. McCarthy, 128 App. Div. 621, 625, 113 N. Y. Supp. 207, 209 (1908). See, also, Buffalo Co. v. Leonard, 154 N. Y. 141, 47 N. E. 966 (1897), where on a devastavit by the executor the residuary legatee was made to refund, so that pecuniary legatees might be paid. But see note to Anonymous, post, pp. 682, 683. 11 The statement of facts is omitted, and part only of the opinion is given.

is a deficiency of assets to pay both debts and legacies, specific devisees. and specific legatees shall contribute proportionably. What is termed a demonstrative legacy, partakes, in this respect, of the privilege of a specific legacy. A demonstrative legacy is the bequest of a certain sum of money, with a direction that it shall be paid out of a particular fund. It differs from a specific legacy in this respect: That if the fund out of which it is payable fails for any cause, it is nevertheless entitled to come on the estate as a general legacy. And it differs from a general legacy in this: That it does not abate in that class, but in the class of specific legacies. 1 Roper on Legacies, 153. It is settled by this court that, in the marshaling of assets for the payment of the debts of a testator, specific devises of land abate proportionably with specific and demonstrative legacies. Barklay's Estate, 10 Pa. 387; Hallowell's Estate, 23 Pa. 223.

The legacy to Mrs. Rea falls clearly within the class of demonstrative legacies. By the will the sum of $1,200 was to be paid to her out of the proceeds of the mill property, and by the codicil she was to have in addition, out of the proceeds of the sale of the mill, bank stock, and other personal property, a sum sufficient to make her equal to her sister Elizabeth, in the amount which the testator had loaned and paid to her husband. There is certainly nothing in the will to evince a different intention. On the contrary, the testator carefully provides that if the sale of his mill property should not produce sufficient to pay the sums bequeathed to his daughters respectively, they were to be paid out of his estate in general; which strongly implies a preference and priority to them, and that their legacies were to be paid to them at all events. Duncan v. Alt, 3 Pen. & W. 382. To apply any less favorable rule to Mrs. Rea than that which was adopted in this case would most clearly disappoint the intention of the testator, "and cut up his plan of distribution by the roots." While the other devisees and legatee would receive their bequests in full, the entire loss would fall on Mrs. Rea as effectually as if she had been a mere residuary legatee and postponed to them all.

*

*

Decree [confirming the auditor's report deciding that Mrs. Rea's legacy abated proportionately with specific devises and bequests] affirmed, and appeal dismissed, at the costs of the appellants.12

12 In Kelly v. Richardson, 100 Ala. 584, 599, 13 South. 785, 791 (1893), it is said: "It is the policy of our laws that both real and personal property are equally liable for the debts of decedent, and that realty devised and personalty bequeathed shall, where the devise and legacy are of the same character, abate ratably when there is a failure of assets undisposed of by the will to pay debts. It is in keeping with this policy that the rule by which specific legacies and specific devises are abated ratably by the necessities of contributions to the debts of the estate has come to be established. It follows logically from this policy and this rule in respect to specific dispositions of realty and personalty respectively that general devises shall contribute ratably with general legacies to debts and expenses of administration, and we so hold" (McClellan, J.). See, also, Estate of Woodworth, 31 Cal. 595 (1867).