and dependant upon their being sufficient property in that country at the testator's death.

It is observable, that the legacies are simply of sums of money. There are no words nor plain intention to give to the legatees any particular parts of the India property in preference to other portions of it. The testator meant no more in the direction of payment than to consult the convenience of his estate. The Court, therefore, justly observed, that in the absence of any thing to make the legacies specific, they must be general, and entitle the legatees to satisfaction, although all the property in India belonging to the testator should have been transmitted to England during his life.

And although a testator, having property in England and India, give legacies to the persons resident in each place, with a direction that they should be paid out of the assets in the respective countries yet such a direction will not constitute the legacies specific; i. e. confine each class of legatees to the funds in the country where they reside; but the whole of the assets, after payment of debts, whether in England or India, will be liable to their demand: the direction of payment by the testator being nothing more than what the law would have done if he had been silent on the subject. Such were the opinion and decree of Lord Kenyon, M. R. in Kirkpatrick v. Kirkpatrick (x).

But legacies of India property will be specific in all cases, where such legacies would be so, if of English personal estate; and consequently, the same observations apply to them, as are made in regard to English legacies in this chapter under its several sections. It shall therefore suffice to produce in this place but one instance of specific legacies of property in the West Indies.

In Nisbett v. Murray, (y) A. after bequeathing three specific dispositions of lands and slaves in the Island of Jamaica, gave the residue of his real and personal estates in the said island, to trustees to sell, and remit and lodge the proceeds and all other monies belonging to his estate in safety in England; which proceeds and monies he bequeathed in sums currency to several persons. It was determined, that the Jamaica property was specifically bequeathed. And according to Page v. Leapingwell,(z) before stated,)(a) the several legatees would be entitled to the whole fund, in exclusion of other legatees, who could only resort to the testator's assets in England.

Having considered what forms of bequest will and will not have the effect of passing to the legatee, the specific stock or annuities which the testator was possessed of at the date of his will, the subject next proposed to be treated upon, is—

SECT. VII. What will amount to Specific Legacies of Debts, by Simple Contract, or secured upon Mortgages, Bonds, &c.

The distinctions which have been made in the last section equally apply to the present subject, and especially the difference between a regularly specific legacy of a debt itself, and a bequest of a sum of money with reference only to the debt, for payment of the lega(x) Cited, 4 Ves. 158. and see 5 Ves. 156. (y) 5 Ves. 150, (z) 18 Ves. 463.

(a) Ante, p. 154.

cy; this being a bequest in nature of a specific legacy, of which instances have been before given. (b) The distinction between the two kinds of specific legacies is thus expressed by Sir William Grant: "The same legacies may be specific in one sense, and pecuniary in another; specific, as given out of a particular fund, and not out of the estate at large; pecuniary, as consisting only of definite sums of money, and not amounting to a gift of the fund itself, or any aliquot part of it."(c) The intention of testators expressed or inferred from their wills, is the only requisite in these cases; so that whether a bequest is to be adjudged a specific disposition of an identical debt, or the debt is to be considered merely as the fund out of which it is to be first satisfied, and the legacy to be paid at all events, although such fund fail, is a question resolving itself into the testator's intention. When the intention is not expressly declared, but to be inferred from the context of the will, the inference must, as we have seen,(d) be found upon a strong, solid and rational interpretation put upon, and a plain inference drawn from such will. Minute criticisms, grounded upon consequences drawn from minor circumstances or conjectures, or plausible arguments, will not have the effect of making the bequest specific, when the form in which the legacy is given is general.(e) These observations are not only supported by the authorities stated in the last section, but by those which follow. And,

1. What will be a specific bequest of a debt or security.

Upon this subject the following rule of construction will, it is presumed, be found correct; that when the gift of the legacy is so connected with the debt or security, as that the gift of the legacy and of the debt or security are the same, the intention to give nothing more than the identical debt or money due on the security is apparent, and consequently, the legacy will be specific. First, then, if I bequeath to B. "the money now owing to me from A.," or "in the hands of A. ;"(f) or, secondly, if A. be indebted to me on bond, and I bequeath to B. "the money due to me on the bond of A.,” or "the interest arising from or upon the bond of A. to B. for life, and to C. the principal of the said bond;" or, thirdly, if I bequeath to B. "my mortgage," or "my East India bonds or bond,"(g) or "my note owing from D.," or "my note in the hands of E.;"(h) these several bequests will be specific, because in the first class nothing is given distinct from the debt owing by A., nor in the second, from the identical money and interest secured on the bond of A.; and in the third, the securities themselves are specifically given.

In Ashburner v. M'Guire,(i) the testator bequeathed to his sister B. "the interest arising from her husband C.'s bond, to him for principal, 3500l. sterling," for life, to her separate use," amounting to 1751. sterling per annum. Item, he bequeathed the principal of the said bond on the decease of B. to her four daughters, &c. to be equally divided amongst them." And Lord Thurlow, after great consideration, determined, that the bond was specifically given; that

(b) Ante, p. 166.

(e) 7 Ves. 523, 529.

(f) See ante, sect. 4. p. 155. and Ellis v. Walker, Ambl. 309.

(g) 2 Ves, sen, 563.

(h) Ibid. 623.

(i) 2 Bro. C. C. 108.

it was legatum debiti; his Lordship observing, that when the testator made his will, 3500l. were due to him from C. by bond; that he meant to relinquish it for the benefit of the family, not by way of release to the husband, but by way of settlement; and that this debt, whether it turned out well or ill, should go to the family; the in. terest to his sister for life, the principal among her daughters; and consequently the legacy must be considered specific.

Upon the authority of the last case, Lord Alvanley, M. R. decided that of Chaworth v. Beech.(k) There A. by codicil bequeathed to B. in the following manner: "Whereas I am entitled to 8000l. vested in the bank of, &c. for which sum, payable with interest at three per cent one month after sight at N., I have the promissory note of the said bankers, now I give and bequeath to my friend B. who lives with me, the before-mentioned sum of 8000l." Before the codicil was made, A. thus indorsed the note: "I give this note to B. which is along with me, for the love and regard I have for her." Upon a question whether this bequest was general or specific, it was dertermined that the legacy was specific, in consequence of the indorsement made upon the note; his Honour observing, "that when he read that and the codicil, the latter was nothing more than a recognition of the indorsement (testamentary) made upon the note; and with all the anxiety he felt not to hold a legacy specific, unless it were demonstrably so, it was impossible not to say that this testator meant to give the note itself, with all the interest due upon it. But if there had been no indorsement on the note, then even upon the will itself, and the case of Ashburner v. M'Guire, (which is the true rule upon the point,) he must hold that the legacy was that note, and nothing else."

The last case was immediately followed by Innes v. Johnson,(l) which was to the following effect: A. bequeathed to his sister C. the interest of 300l. upon bond for life, and after her death, he gave to her daughter D. the interest then due upon the said bond, together with the principal, to be at her disposal at twenty-one. The testator was possessed of two bonds; one for securing 3001. and the other 2001. And Lord Alvanley was of opinion, that the gift was a specific legacy of the bond for 300l.; the words " said bond" fixing the bequest to that identical security which the testator was possessed of at the date of his will. Again,

In Pitt v. Camelford, (m) the form of bequest was thus: A. by codicil, reciting that he was possessed of about 7000l. navy bills, gave the same to his executor, to receive the interest, and to lay the same out in the funds to such uses as his daughter B. should appoint. Lord Thurlow said, that if ever there was a specific legacy, this was so, and decreed accordingly.

So also in Stanley v. Potter,(n) A. after reciting in his will that he had lent B. 2000l. who had executed to him a heritable bond, charging certain lands, &c. with the payment of it and interest, or an annual rent of 100l. for the same, gave and devised that all the said annual rent, of 100l. sterling, or such annual rent, less or more, as by the law for the time being should correspond to the said prin

(k) 4 Ves. 555.
(m) 3 Bro. C. C. 160.

(1) 4 Ves. 568.
(n) 2 Cox, 180, 4 Ves. 559.

cipal sum of 2000l. and all the said lands, &c. in security to trustees for ninety-nine years, in case his daughter B. so long lived, upon trust to pay to her, or her appointee, for life, an annuity of 60l.; and after the end of the term, and in the meantime subject thereto to the use of C. for life, &c. The testator directed his trustees, if the debt should be discharged, to invest it in the purchase of lands to be settled upon the trust and uses before mentioned and referred to as to the yearly rent, and to place the 2000l. till such purchase could be made, on government securities, and pay the dividends to the persons who would have been entitled to the rents. The testator received the debt himself, and delivered up all securities; and the question was, whether the bequest was specific, and consequently adeemed. And Lord Thurlow decided in the affirmative, referring to the case of Ashburner v. M'Guire.

The cases which have been cited are instances of bequests of the securities with the money due upon them. They are strict forms of specific legacies, and the intention to bequeath specifically could not be more clearly expressed.

So also in Gillaume v. Adderly, (o) the testator bequeathed "the sum of 33481. 3s. 4d. sterling," to his father and mother for their joint lives, and during the life of the survivor, "which said sum" he expressed "to be in two bills drawn by the presidency of Fort William, Bengal; one for the sum of 1125l., the other for 22231. 3s. 4d., being the account of money paid into the treasury of Fort William, on account of the investment of 1782 and 3, which bills are now laying for acceptance at the India house, in London." Lord Eldon said, there was no doubt that the legacy was specific; for, continued his Lordship, the testator, taking notice that the bills, in which that legacy was invested, then lay for acceptance at the India house, and adverted to the fact that the identical sum would be received, it was impossible to say that it was not legatum debiti.

It appears impossible to reconcile the case of Coleman v. Cole man(p) (a decision of Lord Rosslyn,) with the authorities before stated.

In that case, A. reciting in his will that he was possessed of a bill of exchange drawn in his favour upon the East India Company, and accepted by their order, and entered in their books for the sum of 1500l., bearing interest at three per cent, gave the interest of the bill to his wife for life, and directed that after her death the same should be sold, and the money equally divided among several nephews and nieces, with survivorship among them if any died before his wife. And Lord Rosslyn determined that this was not a specific legacy.

That decree was founded upon an inference, which his Lordship drew from the manner in which the bill of exchange was settled by the will, viz. that the testator did not mean so to give it, that receipt by him of its amount, during his life, should disappoint the bequest. But this inferential argument was equally applicable to the case of Pitt v. Camelford, before stated, (q) and yet Lord Thurlow said, that if ever there was a specific legacy, that was so; an observation which may be transferred to the present case. Besides, Lord Rosslyn's inference was drawn in opposition to the express form of the bequest, (0) 15 Ves. 384. 389. (^) 2 Ves. jun. 639. (9) See preceding page.

which was strictly specific; and if the testator's language be to have any effect, then it appears from his own expressions that his intention was to give the bill specifically, an intention which being so plainly declared ought not (as it is presumed) to have been controlled by mere inference drawn from the settlement of the property. Under these circumstances it is conceived that Coleman v. Coleman ought to be considered at the utmost but of very doubtful authority.(r)

In the next case, the objection raised to the legacy's being specific was its being a bequest of the money to be received on the security; to which Sir William Grant answered, that "such was the case of every bequest of a debt." It is not, therefore, necessary to render the legacy of a debt specific that the security itself should be given, but it is sufficient if it clearly appear that the money due upon such security was intended to be the sole subject of the gift.

Thus in Fryer v. Morris,(s) the form of the bequest was as follows: "I bequeath to B. all such sum and sums of money as my executors may, after my death, receive on the interest note of 400l. given to me by Messrs. Cross & Co., bankrupts, Bath, either as a dividend under their commission in part thereof, or which they, my executors, may receive from the representatives of the late J. C. or otherwise in respect of such note, in trust for all the children of D. who shall attain the age of twenty-one, equally." Sir William Grant determined that this amounted to a specific legacy of the money due upon the

note.

When the question is, whether a testator intended specifically to dispose of part of a debt owing to him, the same observations apply, as when the point for decision is, whether he intended specifically to bequeath the whole of a debt due to him. He must either express that the legacy is part of the debt, or he must use language sufficiently clear to show, that the subject bequeathed was meant to be parcel of the identical sum due to him. With respect to the first of these remarks,

A. bequeathed in the following manner: " to my grand-daughter B. the sum of 401. being part of a debt due and owing to me for rent from C., she allowing what charges shall be expended in getting the same. Item, I bequeath to my grandsons, D. and E. the rest and residue of what is due and owing to me from the said C., which is about 401. more, in equal shares, and they allowing charges as aforesaid." These were held to be specific bequests of the debt due from C.(t)

And in relation to the second remark, the case of Ellis v. Walker, (u) proves, that unless the testator had clearly shown that he intended to bequeath the identical sum due to him upon the last settlement of partnership accounts by the explanatory words "if I do not draw it out of trade," the form of bequest to B. of 2000l.

($) 9 Ves. 360.

(r) And see Bronsdon v. Winter, Ambl. 57. (t) Ford v. Fleming, 1 Eq. Ca. Ábr. 302, pl. 3. not so correctly reported in 2 P. Will. 469. and see Rider v. Wager, 2 P. Will. 329.

(u) Ambl. 309. and stated supra, p. 155. As to what expression, short of plain declaration will be sufficient to make the legacy specific, see 2 Ves. sen. 561, 564. Forrest. 152. 2 Bro. C. C. 18. 3 Bro. C. C. 431.