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v. Poyntz, 1 B. C. C. 471, as explained by Lord Eldon, 6
Ves. 400. Legacy It has been said that a specific legacy must be liable to specific yet ademption, and that therefore there could not be a specific not subject to adempo legacy of a thing which the testator had not at the date of tion.
the will. See Parrott v. Worsfold, 1 J. & W. 594.
But it is now clear that a testator may make a specific gift of a thing of which he contemplates the acquisition, as for instance of the stock he may die possessed of. Fountaine v. Tyler, 9 Pr. 94; Stewart v. Denton, 4 Dougl. 219; 2 Chitty, 456; Stephenson v. Dowson, 3 B. 342;
Queen's Coll. v. Sutton, 12 Sim. 521. Whether a Whether the gift of a sum “invested ” in a particular gift of a sum “in. way is specific or not, depends on the question whether vested” in the testator meant the legatee to have the sum however a particular way invested, or whether the actual investment is the imis specific.
portant part of the description.
Thus a gift of “the” 70001. out on mortgage is clearly specific. Gardner v. Hatton, 6 Sim. 93.
A bequest of a sum of money described as “now" invested in a certain way must probably be considered specific. Harrison v. Jackson, 7 Ch. D. 339, where Le Grice v. Finch, 3 Mer. 50, is disapproved. See Sparrow v. Josselyn, 16 B. 135.
A gift of “30001. invested in Indian security” has upon the general language of the will been held to be demonstrative. Mytton v. Mytton, 19 Eq. 30; see Bevan v. A.-G., 4 Giff. 361; 2 N. R. 52.
But if the gift is of 3001., or thereabouts, invested by the testatrix in a certain way, the words“ or thereabouts” show that the sum is immaterial, and that the investment is the important part of the gift. Kermode v. Macdonald, L. R. 1 Eq. 457; b. 3 Ch. 584.
The following gifts have been held to be specific: Examples A gift of a particular debt, or of the money due on a
particular security; as for instance of “my mortgage," or of specific
A gift of the interest of money on a particular security.
” is secured in a particular way. Chaworth v. Beech, 4 Ves. 556; Gillaume v. Adderley, 15 Ves. 384 ; Davies v. Morgan, 1 B. 405.
A gift of money described as “ being” on a particular security. Nelson v. Carter, 5 Sim. 530; Ford v. Fleming, 2 P. W. 469; S. C. 1 Eq. Cas. Ab. 302, pl. 3. See Sparrow v. Josselyn, 16 B. 135; Smith v. Pybus, 9 Ves. 566.
A legacy directed to be paid out of the amount of a debt due to the testator is a demonstrative legacy. Vickers
a v. Pound, 6 W. R. 580; 4 Jur. N. S. 543; 6 H. L. 885.
WHETHER A GIFT IS OF A SPECIFIC OR AN ALIQUOT
PART OF FUND.
A gift of a definite sum, part of a specific fund, is primâ Whether a
gift is of a facie a gift of that precise sum, whether the fund turns
specific or out more or less, and not of an aliquot part of the fund. aliquot
part of a Smith v. Fitzgerald, 3 V. & B. 2 ; Booth v. Alington, 6 D. fund. M. & G. 613. See Eales v. Drake, 1 Ch. D. 217.
The testator may, however, show an intention that the legatees were to take aliquot parts of the fund. See Chambers v. Chambers, Mos. 333; Cordell v. Noden, 2 Vern. 148.
Upon similar principles, where a fund subject to a special power is appointed to objects and non-objects, the objects take only the shares they would have taken supposing the whole appointment good, and the rest goes
as in default of appointment. In re Farncombe's Trusts, 9 Ch. D, 652.
LEGACIES CONNECTED WITH LAND. Devise of A devise of lands, whether by specific description or by land is specific residuary devise, is specific. Hensman v. Fryer, L. R. 3 whether residuary
Ch. 420; Lancefield v. Iggulden, 10 Ch. 136. or not.
A devise of land to be sold and divided among certain Devise on trust to persons makes them specific legatees. Page v. Leapingsell and
well, 18 Ves. 463; Newbold v. Roadknight, 1 R. & M. 677. divide. Gift of The gift of a rent-charge or annuity to be paid out of rentcharge.
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. Of annual But a mere gift of an annual sum or of a legacy to be sum to be paid out paid out of real estate, will not be specific. Mann v. Copof land.
land, 2 Mad. 223; Fowler v. Willoughby, 2 S. & St. 354;
Colville v. Middleton, 3 B. 570. Legacy Nor will a gift of a legacy or an annuity with a mere with mere charge on
charge on land be specific. Willox v. Rhodes, 2 Russ. 432; land.
Davies v. Ashford, 15 Sim. 42; Paget v. Huish, 1 H. & M.
663. Trust to But a trust to raise a sum of money out of land, which raise a sum out of sum is then given, is a specific legacy. Welby v. Rockcliffe, land.
1 R. & M. 571; Dickin v. Edwards, 4 Ha. 273.
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 in the
payment of legacies will not make the gift of a sum out of 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 be specific. Powell v. Riley, 12 Eq. 175; Roffey v. Early, specific or
gift is 42 L. J. Ch. 472. See the cases cited under the head of residuary. Exoneration of Personalty. A mere enumeration of specific things in a residuary Enumera
tion of bequest 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 tepant 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 Tootals Estate, 2 Ch. D. 628; Macdonald v. Irvine, 8 Ch. D. 101.
If the specific things enumerated in the residuary gift words as well as,"
are distinguished from the residue by such words as “as “ together with," &c. 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.
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
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
SPECIFIED FUND IS SPECIFIC.
Whether a When a testator disposes of parts of a specific fund, gift of the residue of which he estimates at a certain amount, and then disposes a fund is
of the residue, and the fund turns out to be less than the fpecific.
estimated amount, the question arises whether the gift of residue was intended to be specific or not. In the former case, 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.