uncertainty as distinguished from an ambiguity. For example, it cannot be used to fill a blank space with the name of a legatee nor with the property assumed to be intended. Nor could it be shown what individual member of a class of persons was intended, where the testator, in referring to the class, had not sufficiently identified the individual. Thus, a legacy to the "most worthy inhabitant" of a specified village, would present a case of incurable uncertainty.

Sub-rule 3. An error in description does not necessarily vitiate a legacy. There is a well-known maxim, -falsa demonstratio non nocet. This means that where there is a sufficient description of the person or thing intended, an erroneous addition will not vitiate it.1

As applied to a will, this means that, if a description be false in part, yet if there be existing circumstances absolutely identifying the subject intended, the clause is valid. The test of the maxim is, that the description so far as it is false, applies to no subject, and so far as it is true, it applies to one only. This doctrine cannot be pressed so far as to allow by oral evidence a different legacy to be substituted in the place of one which, through mistake, could not take effect, but only to correct the mistake, and then, after correction, carry the will into effect, if enough remains to indicate the testator's intention.2

Sub-rule 4. Words and clauses may be transposed, supplied, or rejected, where transposition or rejection is warranted by the context or general scheme of the will. This rule is not to be pressed to the extent of supplying by conjecture a sense which is in opposition to the plain and obvious meaning of the language used, no matter how reasonable that sense may be. The great object of interpretation is to find out the meaning of the testator, even though that may turn out to be unreasonable or silly; and when his meaning is plain, it must be followed at whatever cost to the will. So, too, words obviously miswritten may be corrected, as "with" for "without," and "or" for "and," or vice versa.

1 Doe v. Hubbard, 15 Q. B. 227, 241. 2 The correct principle is shown in the case of Selwood v. Mildmay, 3 Ves. 306. In that case a testator bequeathed the proceeds of £1,250, "part of his stock in the four per cent. annuities of the Bank of England." He had no annuities of this class when the will was made, though he had formerly owned some, which had, how ever, been sold, and the proceeds converted into "long annuities." Evidence of these facts was received, not to show that he intended to give the "long annuities," but

to show how the mistake arose, and thus give the legatee £1,250 out of the testator's general estate. This case, from misapprehension of its real scope, has sometimes received adverse criticism, as in Miller v. Travers, 8 Bing. 244, and Doe v. Hiscocks, 5 M. & W. 363. The theory of the decision was carefully and correctly' stated by Lord LANGDALE, M. R., in Lindgren v. Lindgren, 9 Beav. 358, and followed by him in a case presenting simi lar facts.

Sub-rule 5. The court will regard the circumstances under which the will was made, such as the state of the testator's property, or of his family, or, if material, of his friendships or acquaintanceships, with the view of placing itself as nearly as possible in the situation of the testator. This is not with the view of altering the will, but to place itself in the right position to understand his meaning. With all the light thus obtained, the testator's intention must be gathered from the will, and from that alone.

Sub-rule 6. A testator must be presumed to have calculated on his will taking effect rather than the contrary, and to have intended to dispose of his whole estate. The burden of proof is accordingly upon one who alleges the contrary.

Sub-rule 7. If the intention cannot operate to its full extent, it should operate as nearly as possible. This leads to the doctrine of cy pres,1- meaning the rule of approximating the intent, or getting as near to it as the rules of law will permit. It is peculiarly applicable to wills of real estate. Still, as wills of land and personal property are brought nearer together than formerly, there appears to be no good reason for excluding it, wherever it can reasonably be applied. It is resorted to frequently in the case of gifts to charitable uses.

Further and more detailed rules of interpretation will be found in treatises upon wills and upon construction and interpretation. VIII. Legacies.-The general name given to a disposition of personal property in a will is a legacy.

(1) Kinds of legacies. - Legacies may be generally classified as specific, demonstrative, and general.

1. Specific legacies. There has been much difference of opinion as to the true definition of a specific legacy. The correct view seems to be that it includes items, or a class of items, belonging to the testator, so described in the will as to be distinguished from all other items of property. It is not enough that the testator owns an article which answers the designation. Thus, a legacy of a gold watch would not be specific, even though the testator owned one, nor of ten shares in a designated bank, though he owned precisely ten shares. But if the words, the "gold watch I now wear," or "ten shares of stock now registered in my name," were used, the description would be so closely drawn as to exclude all others, and so make the gift specific. In other words, the test of a specific legacy is the language of the testator, and not the extrinsic fact that he owned, when the will was executed, a chattel which in its nature corresponded to the thing bequeathed.

Lord Chancellor SELBORNE, acting as a judge in the House of Lords, has framed two definitions of a specific legacy. One is as follows. It is a bequest by a description which identifies a particular subject then existing as intended to pass to the donee in specie. In a later case his definition is, something "which a testator, identifying it by a sufficient description, and manifesting an intention that it should be enjoyed or taken in the state and condition indicated by that description, separates in favor of a particular legatee from the general mass of his personal estate." This definition was approved by Lords BLACKBURN and FITZGERALD.3 Yet it seems doubtful whether the words, "to be enjoyed in the state and condition indicated," etc., are really a proper term in the definition. Suppose that the testator should bequeath one hundred shares of stock specifically described, and add the words, "if sold before my death, then the proceeds," would the last words deprive the bequest of its specific character? It would seem not. The great feature of a specific bequest is, that a particular thing then owned by the testator is sufficiently described or identified as the subject of his gift. A good illustration is such words as "all my stock in the Midland Railway Company," or, "my books and paintings.6 (a)

The case of Tifft v. Porter is important. The testator owned 360 shares of the stock of a bank. He bequeathed simply 240 shares of stock in the bank to A., and 120 shares to B., without any description showing that they were the shares then belonging to him. The legacy was held to be general and not specific.

A mere exemption by way of legacy of particular items from the general mass of the testator's estate does not make the bequest of the rest of his property to another person specific. Thus, if he should bequeath to A. all the personal estate of which he should die possessed not consisting of money or securities for money, and give to B. what he had not bequeathed to A., the legacy to the latter would not be specific. Specific words following general expressions will sometimes be regarded as simply

1 Giles v. Melsom, L. R. 6 Eng. & Ir. App. Cas. 24, 29 (1873).

6 Langdale v. Esmonde, 4 Ir. R. Eq. 576. 7 8 N. Y. 516. To the same effect, see

2 Robertson v. Broadbent, L. R. 8 App. Bronsdon v. Winter, Ambler, 57; Wilson Cas. 812, 815 (1883).

v. Brownsmith, 9 Ves. 180; Johnson v. Goss, 128 Mass. 433. Compare with Metcalf v. Framingham Parish, Id. 370.

8 Broadbent v. Barrow, L. R. 20 Ch. D. 676 (C. A.).

145 Mass. 346; Harvard Unitarian Society v. Tufts, 151 Mass. 76.

explanatory or confirmatory of the general words, and in such a case the legacy will not be specific.1 A specific legacy is defined by high authority to be "a bequest of a specified part of the testator's personal estate which is so distinguished."2 This definition was followed by one of the judges in Broadbent v. Barrow, cited in the note, though declared not to be exhaustive.3

2. Demonstrative legacies. By the term "demonstrative" is meant a designation of a particular fund from which the legacy is directed to be paid in such a way that if the fund should fail or be insufficient the legacy would still be payable, either in whole or in part, from the testator's general estate.

A testatrix directed a number of legacies to be paid from a fund of £6,000 which she assumed to belong to her. It turned out that she had only a life interest in the fund. The legacy was declared to be demonstrative. In other words, the testatrix had pointed out a fund from which the legacy was to be paid, but did not limit the legatee to that fund. The legacy must accordingly be paid from the general estate of the testatrix. (a)

Accordingly, a pecuniary legacy given with a particular security is demonstrative. And wherever there is a fixed, independent, separate, and distinct intent to give the legacy, it will stand, though the fund out of which it is directed to be paid does not exist. Thus, where a testator bequeathed certain annuities, and directed that they should be paid out of the rents of his real estate, and the latter proved to be insufficient, it was held that the gift was demonstrative, and the deficiency must be paid out of the capital of the residuary personal estate. If, however, the words are positive that the legacy must be taken from a designated fund, then the legacy is not "demonstrative," but must be confined to the fund so designated.9

Some of the leading practical distinctions between specific and demonstrative legacies should be noted. A specific legacy is not liable to "abate" in respect to other classes of legacies, a demonstrative one is. A specific legacy is liable to "ademption," a

1 Fairer v. Park, L. R. 3 Ch. D. 309. 2 Williams on Executors (8th Eng. ed.), 1163.

Per LINDLEY, L. J., p. 684. Cunliffe v. Cunliffe, 23 W. R. 724. 5 Fowler v. Willoughby, 4 L. J. (Ch.) 72, s. c. 2 Sim. & S. 354.

(a) See generally as to demonstrative legacies, Giddings v. Seward, 16 N. Y. 365; Pierrepont v. Edwards, 25 N. Y. 128; Delaney v. Van Aulen, 84 N. Y. 16;

6 See Willox v. Rhodes, 2 Russ. 452; Colville v. Middleton, 3 Beav. 570; Campbell v. Graham, 1 Russ. & M. 453.

7 Mann v. Copland, 2 Madd. 223. 8 Paget v. Hurst, 9 Jur. N. s. 906; Williams v. Hughes, 24 Beav. 474.

• Coard v. Holderness, 22 Beav. 391.

Armstrong's Appeal, 63 Pa. St. 312; Ives v. Canby, 48 Fed. R. 718; Additon v. Smith, 83 Me. 551; Hutchinson v. Fuller, 75 Ga. 88.

demonstrative one is not. A specific legacy vests immediately on the death of the testator, a demonstrative one does not.1 The topics of "abatement" and "ademption" will be hereafter considered.2

3. General legacies. This expression includes all legacies given in money simply, without any direction as to the fund from which payment is to be made, or in goods without definite description. Thus, a legacy of a gold watch is a general legacy, as well as one of a thousand dollars. A legacy of stock (government bonds) will accordingly be specific or general according to the circumstance whether the testator intended to confine it to stock that he then had. Accordingly, a legacy of all the stock that the testator may be possessed of at the time of his decease is not specific but general. In an English case a testator bequeathed as follows: £1,500 of my Egyptian 9 per cent. bonds to A.,” and, again, "£500 Egyptian 9 per cent. bonds to B." The bequest to A. was declared to be specific, and that to B., general, and this even though the testator had such last-mentioned bonds at the time.6

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One further distinction must now be noticed. This concerns a "residuary legacy." It is not uncommon for a testator, after naming certain legacies of a specific, demonstrative, or general nature, to add a clause to the effect that all the rest and residue of his personal property, or, it may be, both real and personal, shall go to specified persons. As to the personal property, the beneficiary is termed a "residuary legatee," and as to the real property, "a residuary devisee." A provision in a will for a residuary legacy, in its broadest meaning, is a species of omnibus clause, designed to sweep in everything that has not been otherwhere effectually disposed of.?

There may, however, be a "residue" of a portion of an estate, as well as a general residue covering the entire estate. Again, a clause framed in residuary terms may be a specific legacy. Such words as the following, "all my personal estate in Jamaica to be remitted to England," 8 "all my personal estate at W.,"9 or, “all other of my personal estate and effects which I can by law bequeath to such an institution," 10 are examples. So where in a residuary clause specific property is named, the bequest may be

1 Mullins v. Smith, 1 Dr. & Sm. 204; Kirby v. Potter, 4 Ves. 748.

2 See post, pp. 619-623.

3 Avelyn v. Ward, 1 Ves. Sr. 419, 425. 4 Parrott v. Worsfold, 1 Jac. & W. 594. But see Stephenson v. Dowson, 3 Beav. 342, where the contrary is held.

5 Macdonald v. Irvine, L. R. 8 Ch. D. 101 (C.A.).

6 See Tifft v. Porter, 8 N. Y. 516; Johnson v. Goss, 128 Mass. 433. 7 Taylor v. Taylor, 6 Sim. 246.

8 Nisbett v. Murray, 5 Ves. 149. 9 Sayer v. Sayer, 2 Vern. 688. 10 Shepheard v. Beetham, L. R. 6 Ch. D. 597.