Devise of land is specific whether residuary or not. Devise on trust to sell and divide. Gift of rentcharge. Of annual sum to be paid out of land. Legacy with mere as in default of appointment. In re Farncombe's Trusts, 9 Ch. D. 652. LEGACIES CONNECTED WITH LAND. A devise of lands, whether by specific description or by residuary devise, is specific. Hensman v. Fryer, L. R. 3 Ch. 420; Lancefield v. Iggulden, 10 Ch. 136. A devise of land to be sold and divided among certain persons makes them specific legatees. Page v. Leapingwell, 18 Ves. 463; Newbold v. Roadknight, 1 R. & M. 677. The gift of a rent-charge or annuity to be paid out of land with powers of distress is specific. Long v. Short, 1 P. W. 403; Davenhill v. Fletcher, Amb. 244; Creed v. Creed, 11 C. & F. 491. See Poole v. Heron, 42 L. J. Ch. 348. But a mere gift of an annual sum or of a legacy to be paid out of real estate, will not be specific. Mann v. Copland, 2 Mad. 223; Fowler v. Willoughby, 2 S. & St. 354; Colville v. Middleton, 3 B. 570. Nor will a gift of a legacy or an annuity with a mere charge on charge on land be specific. Willox v. Rhodes, 2 Russ. 452; Davies v. Ashford, 15 Sim. 42; Paget v. Huish, 1 H. & M. 663. land. Trust to raise a But a trust to raise a sum of money out of land, which sum out of sum is then given, is a specific legacy. Welby v. Rockcliffe, 1 R. & M. 571; Dickin v. Edwards, 4 Ha. 273. land. So, too, a direction to pay a sum out of land, the only gift being in the direction to pay, is specific. Spurway v. Glyn, 9 Ves. 483. Effect of In such a case the fact that the personalty is given after directions payment of legacies will not make the gift of a sum out of in the will on the proceeds of sale of realty demonstrative. Rickets v. legacies in themselves Ladley, 3 Russ. 418. specific. Though, on the other hand, where a testatrix gave her real and personal estate on trust to pay the legacies there inafter given, a subsequent gift out of the proceeds of sale of realty was held demonstrative. Hodges v. Grant, 4 Eq. 140. And where a legacy was given out of a fund which was not available till the death of A., but there was a direction that it was to be paid with the other legacies, it was held demonstrative. Williams v. Hughes, 24 B. 474. WHETHER A GIFT IS SPECIFIC OR RESIDUARY. A gift of the whole of the testator's personal estate may Whether a gift is be specific. Powell v. Riley, 12 Eq. 175; Roffey v. Early, specific or 42 L. J. Ch. 472. See the cases cited under the head of residuary. Exoneration of Personalty. tion of A mere enumeration of specific things in a residuary Enumerabequest will not make the gift of those things specific. specific Taylor v. Taylor, 6 Sim. 246; Sutherland v. Cooke, 1 Coll. things. 498; Fielding v. Preston, 1 De G. & J. 438. The cases in which it has been held that as between tenant for life and remainderman of a residue the fact of specific enumeration of certain things is a strong argument in favour of specific enjoyment by the former, are no authorities on the question whether the gift of those things is specific in the sense here discussed, though where the tenant for life has not been held entitled to specific enjoyment, the things specifically mentioned are à fortiori not specific legacies. See this distinction well illustrated in Fielding v. Preston, 1 De G. & J. 438; see post, p. 199. A direction that certain funds are in certain events to fall into the residue will not make the gift of those funds specific. Lynes' Estate, 8 Eq. 482. A gift of residue including certain specified property will not make the gift of that property specific. In re Tootal's Estate, 2 Ch. D. 628; Macdonald v. Irvine, 8 Ch. D. 101. Effect of words "as well as," with," &c. If the specific things enumerated in the residuary gift are distinguished from the residue by such words as as "together well as," or "together with," or " and also," the gift of them is specific. Clarke v. Butler, 1 Mer. 304; Hill v. Hill, 11 Jur. N. S. 806; Langdale v. Esmonde, I. R. 4 Eq. 576; Fitzwilliam v. Kelly, 10 Ha. 266. Whether a gift of the a fund is specific. Possibly if the enumeration of specific things comes after the gift of the residue, the same result may follow. Bethune v. Kennedy, 1 M. & Cr. 114; Mills v. Brown, 21 B. 1. On the other hand a residue given "together with" certain specified property will not make the gift of that property specific, if its mention can be accounted for on the ground that the testator wished to except it from another gift in the will. Fairer v. Park, 3 Ch. D. 309. The subject of residuary gifts will be found discussed post, Ch. XX., p. 182. WHETHER A GIFT OF THE REST OR RESIDUE OF A When a testator disposes of parts of a specific fund, residue of which he estimates at a certain amount, and then disposes of the residue, and the fund turns out to be less than the estimated amount, the question arises whether the gift of residue was intended to be specific or not. In the former casc, all the beneficiaries abate proportionately; in the latter, the loss must, in the first instance, be borne by the residuary legatee. Where a testator gives the residue of a specific fund and estimates that residue in money, the gift of the residue is specific. Haslewood v. Green, 28 B. 1; Walpole v. Apthorp, 4 Eq. 37. So, too, where a testator estimates a specific fund in money and gives definite portions of it, a gift of the rest is as specific as if he had stated it in figures. Page v. Leapingwell, 18 Ves. 463; Walpole v. Apthorp, 4 Eq. 37; Miller v. Huddlestone, 6 Eq. 65; Elwes v. Causton, 30 B. 554; Wright v. Weston, 26 B. 429. But if the fund is given subject to debts, the gift of the residue will not be specific. Harley v. Moon, 1 Dr. & S. 623; Baker v. Farmer, 3 Ch. 537. So, too, though the testator estimates the fund in money, if the residue is given subject to or after payment of specific gifts, the gift of the residue is not specific, but will carry everything undisposed of, by reason of lapse or otherwise. Carter v. Taggart, 16 Sim. 423; Harries' Trust, Jo. 199; but see Miller v. Huddlestone, 6 Eq. 65. So, if the fund is estimated in figures, but the testator shows that he considers it fluctuating in amount by adding " or other the stock, funds, or securities of which the same may for the time being consist," the gift of the residue is not specific. De Lisle v. Hodges, 17 Eq. 440. And though the fund is in fact definite in amount, if the testator merely describes it generally, without estimating it in figures, the gift of the residue is not specific. Petre v. Petre, 14 B. 197; Vivian v. Mortlock, 21 B. 252. See the chapter on Residuary Bequests, p. 187. Legacies by same of equal CHAPTER XVI. CUMULATIVE AND SUBSTITUTIONAL LEGACIES. I. LEGACIES of equal amount given by the same instruinstrument ment are merely repetitions. Holford v. Wood, 4 Ves. 75; Manning v. Thesiger, 3 M. & K. 29; Brine v. Ferrier, 7 Sim. 549; Early v. Benbow, 2 Coll. 342; Early v. Middleton, 14 B. 453. amount; of unequal amount. Legacies by dif ferent in struments. But there may be an intention to give both. Barkenshaw v. Hodge, 22 W. R. 484, where the gift was to trustees, and the legacies were introduced by the words "upon trust to pay," and "upon further trust to pay," &c. Parol evidence would be admissible to show that the testator meant the legatee to have both legacies, such evidence being in support of the prima facie meaning of the instrument. See Hurst v. Beach, 5 Mad. 351; Hall v. Hill, 1 Dr. & War. 94. If the legacies are not equal the legatee is entitled to both. Yockney v. Hansard, 3 Ha. 622; Curry v. Pile, 2 B. C. C. 225; Baylee v. Quin, 2 Dr. & War. 116; Adnam v. Cole, 6 B. 353. The rules with regard to cumulative legacies do not apply to the case of a pecuniary gift and a residue given to the same person. In such a case the legatee is entitled to both. Kirkpatrick v. Bedford, 4 App. C. 96. II. Legacies of equal, less, or greater amount, given by different instruments, as by will and codicil to the same person, are primâ facie cumulative. Hooley v. Hatton, 1 B. C. C. 390 n.; Lee v. Pain, 4 Ha. 201, 216; Roch v. |