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bility, to raise and remove latent ambiguities (of which examples have been before given ;) and of its not being admissible when offered to explain a patent ambiguity in the will, of which the Court of King's Bench proposed an instance in Edward Altham's case :(i) "If A. by deed, give goods to one of the sons of J. S. who has several sons; he shall not aver which son he intended; for by judgment in law upon this deed, the gift is void for the uncertainty, which cannot be supplied by averment." And there is no difference between a deed and a will, as to this matter.(k) We shall now proceed to consider

1. When a blank is left for the christian name of the legatee. That parol evidence is admissible to supply an omission of the christian name of a legatee, is proved by the case of Price v. Page,(l) in which the testator bequeathed "to Price, the son of Price, the sum of 100l." No person but the plaintiff claimed the legacy, and he produced evidence from which it appeared, that he was the son of a niece of the testator; that his father's and grandfather's names were Price, that the testator had no other relation of that name, that he lived on terms of affection with the plaintiff, contributed to his maintenance, placed him with an attorney, and paid the duty on that occasion, and that the testator said he had or would provide for the plaintiff, and that he had left him something by his will. Upon this evidence, Lord Alvanley determined in favour of the claim. But

2. When the omission consists of the entire name of the legatee, parol evidence cannot be admitted to supply the blank, for that would amount to a bequest by oral testimony.

Thus in Winne v. Littleton, (m) A. bequeathed all his personal estate to his executor, leaving a blank, and died without naming any person executor. The legacy was adjudged to be void.

So in Baylis v. The Attorney General,(n) the testator gave 2001. to the ward of Bread-street; according to Mr. his will. Lord Hardwicke would not allow the blank to be supplied by parol evidence.

And in Hunt v. Hort,(o) a woman devised her houses in town and at Richmond to her niece, Dame Margaret Hort, and Richard Baker, her attorney, in trust to sell. She then gave some pictures specifically, and thus proceeded: my other pictures to become the property of Lady (leaving a blank after the word lady.) The testatrix then made her niece, Harriet Hunt, residuary legatee, and appointed Lady Hort and Richard Baker her executors. Lord Thurlow was of opinion that he could not supply the blank by parol evidence, and observed, that where there was only a title given, it was the same as a total blank.

3. If, however, a legatee be described by initials of his name only, parol evidence may be given to prove his identity...

This was done in the case of Abbot v. Massie,(p) where the bequest was, "Pint silver mug, and all my china, to Mrs. G. and 101. for mourning," Mrs. Gregg claimed the legacies, and, the Master having refused testimony, offered to show that she was the person (k) 2 Vern. 624. (1) 4 Ves. 680. (0) 3 Bro. C. C. 311.

(1) 8 Rep. 155. a. (n) 2 Atk. 239.

(m) 2 Ch. Ca. 51. · (1) 3 Ves. 148.

intended; exception was taken to his report. Upon which the Court declared, that he ought to receive evidence, but legal evidence, to prove who Mrs. G. was.

4. And with respect to a patent ambiguity arising from an imperfect reference to one of two legatees correctly described in a prior part of the will, parol evidence is inadmissible to show which of them was intended, so that the additional legacy intended for the one will depend upon the removal of the obscurity by a sound interpretation of the whole will.

An instance of this kind occurred in a case of Castledon v. Turner.(q) The testator gave his real estates to his wife Alicia, for life, remainder to M. Dinton, niece to his said wife. Item, he gave "the use of 5001. stock, for and during her life, but after her death, he gave the 500l. among the brothers and sisters of the said wife." The question was, whether by the relative word, her, the niece or the wife was intended? And it seems that parol evidence was offered of the testator's intention, (r) but Lord Hardwicke, after rejecting that testimony, determined in favour of the wife, upon a sound and grammatical construction of the will.

The last case was followed by Fox v. Collins,(s) but differing from it in this particular, that no parol evidence was offered, and if any had been tendered, the case just stated would have been an authority for rejecting it. In Fox v. Collins the testator first provided for Sidney Collins, the second daughter of his deceased uncle, Thomas Collins, late of Huntingdon. He next made provision for the son of his said uncle Thomas, and then gave a legacy to the defendant, Ann Collins, of St. Ives, a daughter of his uncle Thomas; and also a legacy to Edward Collins, a grandson of Thomas; but if Edward died before the testator, the legacy was to go to his children, if he left any and if there were none, the money was to be applied as part of the testator's residuary estate. The next objects of the testator's bounty were the descendants of his deceased uncle, Robert Collins, one of whom was named Ann Collins, and resident at Bromyard in Huntingdon, and was so described. The testator, after giving some legacies, bequeathed his residuary personal estate, "to the said Sidney Collins, Ann Collins and Sarah Collins, in equal shares. The question was, which of the two Ann Collins was meant by the testator? And Lord Northington determined in favour of Ann Collins of St. Ives, the daughter of Thomas, the uncle. 1st, Because the descendants of Thomas appeared to be the primary objects of the testator's bounty, and as such first named in the will; and the direction for the legacy to Edward (grandson of Thomas) to fall into the residue upon the contingencies before mentioned, appeared to his Lordship material evidence of the testator's intention, that the residue should be divided among the descendants of Thomas. And, 2dly, because, in addition to those circumstances, the name "Ann Collins" in the residuary clause was placed between two of the descendants of Thomas, whence his Lordship was satisfied upon what appeared in the will, that Ann Collins, the daughter of Thomas, was the person designated by the description of "Ann Collins."

(g) 3 Atk. 257.

(r) 2 Ves, sen. 217.

(8) 2 Eden. 107.

CHAPTER III.

Of Specific Legacies.

It is proposed to consider in this Chapter, What are and what are not Specific Bequests of personal property. The subject will be discussed under the following arrangement:

SECT. I. What are Specific Legacies, and the privileges and disadvantages attending them.

SECT. II.

Specific Legacies of individual personal chattels. SECT. III. Specific Legacies of, and relating to real chattels and estates.

1.-Of real chattels.

2.-Of rents and annuities out of real chattels and

estates.

3. Of gross sums of money out of them and
4.-Of the produce from their sales.

SECT. IV. Specific Legacies of sums of money and personal

annuities.

1. Of money.
2.-Of annuities.

SECT. V. Specific Legacies of stock or annuities in public

funds.

1.-Effect of "my" preceding the word "stock." 2.-Bequests of stock generally.

3.-Construction when stock is bequeathed generally in a particular fund.

4:

5.

SECT. VI.

when expressly out of particular stock. when not expressly out of stock, but stock is mentioned as the fund in which the money bequeathed is, or is supposed to be invested. Colonial property.

Legacies of, when and when not specific.

SECT. VII. Legacies of debts.

1. When specific.

2.-When not.

SECT. VIII. Bequests of general personal estate.

1.-When specific.

2.-When not.

SECT. I. What are SPECIFIC LEGACIES, and of the privileges and disadvantages attending them.

A regular specific legacy may be defined, "the bequest of a particular thing or money specified and distinguished from all others of the same kind, as of a horse, a piece of plate, money in a purse, stock in the public funds, a security for money, which would immediately vest with the assent of the executor." It differs from a

general or * pecuniary legacy in this respect, that if there be a deficiency of assets, the specific legacy will not be liable to abate with the general legacies; and on the other hand, if such specific legacy be disappointed, as by failure of the specific fund, the legatee will not be entitled to any recompense or satisfaction out of the personal estate of the testator.(a)

But there are legacies of quantity in the nature of specific legacies, as of so much money with reference to a particular fund for their payment.(b) This kind of legacy is so far general, and differs so much in effect from that first described, that if the funds be called in or fail, the legatees will not be deprived of their legacies, but be permitted to receive them out of the general assets; yet the legacies are so far specific, that they will not be liable to abate with general legacies upon a deficiency of assets.(c)

It is true, that this anomalous kind of specific legacy was thought a refinement by Lord Thurlow in Ashburner v. McGuire; (d) yet, it will appear from the authorities after-mentioned, that a distinction has been established, in accordance with the civil law, (e) between the bequest of a sum of money, with reference to a security or debt for its payment, and the gift of the security itself, and that they are attended with the different consequences before stated. We shall proceed to consider,

SECT. II. What LEGACIES of individual personal

Chattels, are and are not specific.

The intention of testators upon this subject, as in every question on 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, to constitute the legacy specific. What is sufficient for that purpose, may be collected from the definition given of a specific legacy in the beginning of the chapter, and from which it is a consequence.

That if A. bequeath in this manner: "the brooch which I received as a present from A. B."; or, "my horse named Castor," &c.; such and the like bequests will be specific, for the object is

* In classing legacies, the words "general and specific" will, throughout the present work, be exclusively adopted, though there is highly respectable authority for using the word "pecuniary" synonimously with "general" It is not however strictly accurate, for every general legacy is not pecuniary (i. e.) relating to money; and one species of specific legacy is of a pecuniary nature, so that there may be either a general pecuniary legacy, or a specific pecuniary legacy. The terms general" and "specific” answer every purpose without involving any ambiguity.

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1 Vern. 31. 1 P. Will. 422, 540. 679. 3P. Will. 385. 3 Bro. C. C. 160, (b) Touchst. 433. Ambl. 310. 4 Ves. 565. 3 Ves. & Bea. 5.

(c) 2 Ves. jun. 640. 5 Ves, 206. Acton v. Acton, 1 Meriv. 178. (d) 2 Bro. C. C. 108.

Si testator scripserit aureos quadringentos Pamphile dari volo, ita ut infra scriptum est, ab Julio autore aureos tot, et in castris, quos habeo tot, et post multos demum annos decesserit cum jam omnes summæ in alios usus translatæ essent, responsum fuit; Pamphila quadringenta deberi; quia vero similius est patrem familias demonstrare potius hæredibus voluisse, unde aureos quadringentos sine incommodo rei familiaris contrahere possent, quam conditionem fidei commiso injecisse, quod ab initio pure datum esset. Voet on Pand. 35. tit. 1. sect. 5.

accurately referred to and described, and the legacy can only be satisfied by a delivery in specie.(ƒ)

Thus, a bequest of so many of the testator's horses as should amount to 8001. was held in Richards v. Richards, (g) to be specific. But if it be uncertain from the description whether any particular horse or brooch was intended, so that the bequest may be satisfied by delivery of something of the same species of that mentioned, the legacy will not be specific. Thus, if A. having many brooches or horses, bequeath "a brooch" or "a horse" to B.; in these and such cases the legacies will not be specific but general.(h)

So also if there be error in the description in the chattel intended to be specifically given, the mistake may be of such a nature as not to be permitted to disappoint 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 not of the colour described, for there can be no doubt of that being the horse intended for him, and the legacy will be specific.(i)

But 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.(k) It appears upon the face of the will, that one of the two horses was meant for B.; and the uncertainty respecting the one so intended, arises from the latent ambiguity developed by the comparison of the will with the testator's property: it seems, therefore, necessary to resort to such evidence in this case, upon the same principle which renders it admissible to determine which of two persons of the same christian name and surname is entitled to a legacy intended for one of them, but which is bequeathed by a description applicable to both legatees.(1)

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SECT. III. With respect to LEGACIES of, and relating to, real CHATTELS and ESTATES.

1. A lease or term for years is as capable of being made the subject of a specific bequest as freehold estates; bequests or devises of which are always specific.

Accordingly, if A. bequeath his term for years in an estate at B. or the lease of his farm there,(m) or "the lease which he then held,"(n) or "all his tithes payable out of C.,"(o) (he having a lease for years of such tithes), or if after bequeathing his leasehold estate to A. for life, he afterwards give it to B. by the words, "all my estate, term and interest therein," (expression which must be confined to his estate, term and interest in the then existing lease, and not be extended to any future lease ;(p) or if A. devise his leasehold estate

(ƒ) Touchst, 433.

(g) 9 Price, 219.

(h) 1 Atk. 417.

(i) Touchst. 433. and see chap. IV. sect. 4. (k) See Selwood v. Mildmay, 3 Ves. 306, and 2 Ves. sen. 28. 1 Bro. C. C. 477.

13 Ves. 174.

() 1 P. Will. 421. 425. 3 Ves. 148. 6 Ves. 42. (m) 1 P. Will. 403. 693.

(0) 2 Ves, sen. 419. 1 Bro. C. C. 263,

2 P. Will. 140. Ambl. 374.

(n) 2 Atk. 597.

(A) 16 Ves. 179.

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