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"which appeared to be due to the testator on the last settlement in trust, &c." would not have been a sufficiently clear manifestation of an intent to make the legacy depend upon the existence of such a fund, as well from the nature of the fund, as the manner in which the legacy was given, viz. of a sum of money; for the clause that immediately followed the gift was merely descriptive of the property out of which the legacy was to be paid, (i. e.) what, if any thing might be due to the testator in respect to his share of the partnership stock, a fund quite contingent, as depending upon the result of the partnership accounts, and not a substantive independent bequest of such share itself. Such was the reasoning of Lord Hardwicke, and who expressed his opinion, that the legacy of 2000l. would have been general, except from the marked words, "if I do not draw it out in trade."

But the case of Philips v. Carey(x) must be noticed, which decided that a bequest was specific, upon intention inferred from words not affording that plain unequivocal evidence of intent, which, as we have seen, (y) is required to render a legacy specific which in form is general.

In that case the testator gave a legacy of 1000l. to B., payable at the age of twenty-one, or marriage, to be retained in the hands of A. (who had money of the testator in his hands as his banker.) And it was held by the Master of the Rolls, that this legacy, if pecuniary, would only carry interest from the time of payment; but that by the manner of bequeathing it, the 1000l. was severed from the rest of the estate, and especially appropriated for the benefit of the legatee, so that it, being specific, should immediately carry interest.

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The reader should be apprised that the last case was said by Lord Thurlow, in Ashburner v. M'Guire,(z) to be nonsense, and to have been frequently denied; it was, however, referred to with approbation, by Lord Hardwicke in Heath v. Perry, (a) who thus notices it: "It was a sum of 1000l., and part of it out of a specific debt due to the testator; therefore, this was a specific legacy; and whether the whole or part of a debt due to the estate be given as a legacy, it is equally specific, and therefore a distinct tree and distinct fruit." When two such great Judges, so diametrically differ, reference must be had to principle and authority, to discover which of the two is right. It is settled, as before observed,(b) that strong, solid, and rational interpretation put upon, and plain inference drawn from, the will are necessary to repel the prima facie construction of a bequest being general when given in that form. Lord Eldon has decided, that inference arising upon equivocal expressions is insufficient for that purpose.(c) Then, to apply this test to the present case-the balance in the hands of the testator's banker was fluctuating; it was not likely, therefore, that he intended to make the legacy depend upon that contingency.(d) In addition to this consideration, he bequeathed to B. a sum of 1000l. in its form general, with a direction

Stated in the argument of the case of Lawson v. Stitch, 1 Atk. 507.
Ante, p. 168.
(z) 2 Bro. C. C. 113.
(b) Ante, p. 168.

3 Atk. 103.

Sibley v. Perry, 7 Ves. 529. and see his Lordship's observations, 9 Ves. 152.

Ambl. 309.

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to A., his banker, to retain the sum in his hands. By that direction, he might mean no more than that A. should preserve a sufficient fund in his possession, to answer the legacy when B. should marry, or attain the age of twenty-one, referring to the money in A.'s hands as the primary fund out of which the legacy should be paid, and not as an original specific disposition of any part of it; or he might mean (though less probably) to give of his specific money in A.'s hands to the amount of 1000l., with orders to retain that sum till it became payable. The intention, then, being equivocal, and the interpretation or inference not coming up to the rule before stated, it is presumed that the sentence passed upon this case by Lord Thurlow, is just, and that if a similar one were to occur, the decision in Philips v. Carey would not be followed.

2. Having produced various instances of forms of bequests which have been adjudged to be specific, we shall next proceed to the consideration of those forms of dispositions which have been held insufficient to create specific bequests of the debts or securities to which they alluded. Questions upon this subject, as on those which have been previously discussed, depend upon the testator's intention; that being the test by which they are to be tried and determined. A court of equity leans to the consideration, that all bequests are general it therefore requires expressions actually bequeathing the identical debt, (examples of which have been given,) or such a reference to it appearing upon a strong, solid, and rational interpretation of the will, as to raise a plain inference that the debt was the exclusive subject intended to be given by the testator to the legatee; for the bequest of a sum of money, with ever so plain a reference to the amount of a debt or fund out of which it is given, is very different from a gift of the fund itself, with all the chances of fluctuation in its amount ;(e) so that when a legacy of a debt is in its form general, and it is endeavoured, from the context of the will, to construe such bequest specific, it can only be accomplished by such strong, solid, and rational interpretation to be put upon, and plain inference to be drawn from the will, as have been before mentioned.(f) Mere private opinion or conjecture will be insufficient for the purpose. In considering the cases in confirmation of the above remarks, we shall commence with an instance where the security belonging to the testator was neither given nor referred to, but the bequest was merely of securities of a similar description:

In Sleech v. Thorington,(g) A. bequeathed as follows: "I give and bequeath unto B. 4001. East India bonds, on trust to pay the interest thereof from time to time to my niece C. until her age of twenty-one, or marriage; and afterwards to pay the said 4001. East India bonds to her." Sir Thomas Clarke, M. R. decided, that this form of bequest was not specific, but of quantity, and to be made good out of the personal estate of A.

The instance just given has none of the essentials of a specific legacy. There is no reference to any East India bonds in A.'s possession, nor are there any expressions or inference from the will, that A. intended to bequeath any such securities specifically. The le

(e) 3 Ves. & Bea. 5. Ambl. 309.

(g) 2 Ves. sen. 560, 563.

(f) Ante, p. 168.

gacy is of East India bonds generally; a bequest which the executor can literally satisfy by the purchase of any bonds of that description. This, then, seems to be the first step towards rendering a legacy specific.

The next advance towards the specific legacy of a debt or security, is where the form of bequest being general, allusion is made to the debt or security; but in such a manner as to render it equivocal whether the debt or security was or was not intended to be specifically bequeathed. Under such circumstances, the prima facie construction of the bequest being general, cannot, as before observed, (h) be repelled by inference arising from such a reference or allusion to the particular fund. This may happen, first, when a sum of money is distinctly bequeathed, and a debt or security is previously or subsequently mentioned, but without any declaration or plain inference appearing that such fund was itself the identical fund solely intended for the legatee. Or, secondly, this may happen when the legacy is given in the form of a general, but out of or directed to be paid out of a particular debt or security. In these instances the legacies are general, because the bequests being distinctly made in that form, viz. of a sum of money, the prior or subsequent description of a particular fund, or the gift of the sum out of it, raises no higher inference than this: that the testator might intend to bequeath the debt or security specifically, or he might only mean to point to that fund as the primary one out of which the legacy should be paid; so that there is wanting that plain and certain inference of intention arising from a strong, solid, and rational interpretation of the will, which is necessary to repel the prima facie construction that the legacy is general.

Of the first proposition, the opinion of Lord Hardwicke, in Ellis v. Walker, (i) is confirmatory.

So also in Gillaume v. Adderley,(k) A. bequeathed to Elizabeth, his natural daughter, then in England, for her education, the sum of 5000l. sterling, or 50,000 current rupees, to be paid at twentyone, or upon her marriage, if with the consent of such of his trustees as might be then in England; but in case his daughter were in Jamaica when she married, he directed the said sum of 5000l. sterling to be paid to her at twenty-one, if then in Jamaica, or on her marriage there. And he further directed, that the said sum of 5000l. sterling, or 50,000 current rupees, which he expressed to be "now vested in the Company's bonds," should be remitted to England as opportunity offered; and that the said sum of 5000l. sterling should be vested in the bank, or upon government security, in trust for his said daughter, and the interest applied for her support and education during minority, until she should be entitled to the said sum of 5000l. sterling, or 50,000 current rupees, in manner aforesaid; but that if she died before twenty-one, without having married in Jamaica, or if she married in Europe without consent of the trustees as aforesaid, he bequeathed the aforesaid sum of 50001. sterling, or 50,000 current rupees, and accumulated interest, equally between his brother (1) Ambl. 309. stated supra, p. 155.

(h) Ante, p. 169. (k) 15 Ves. 385, 389. and see the case of the Earl of Thomond v. The Earl of Suffolk, 1 P. Will. 462.

and sister B. and C. The question was, whether this legacy was specific or general? And Lord Eldon expressed his opinion, that it was of the latter kind; observing, that it was originally a legacy of money, 5000l. or 50,000 current rupees considered as of the same value, and that the bequest was no more than of a sum of money, pointing out a particular mode of payment by a fund provided in the first instance.

Yet, as the reader will observe, there is no gift of the last legacy out of any particular India bonds of the testator at the date of his will, nor a direction for its payment out of any such securities. The principle of the decision appears to be, that the legacy being originally given as general, the mere subsequent notice that the sum was then vested in India bonds was insufficient, for the reasons before mentioned, to change the nature of the bequest, and make it specific; and that although it was not expressed that the legacy should be paid out of the bonds in the possession of the testator, yet his mentioning them was sufficient evidence of his intention to make them the primary fund for paying such legacy.(l)

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To the last determination may be added the case of Le Grice v. Finch;(m) in which A. reciting, "that it was the wish and desire of her mother and herself that the 500l. they had then out upon mortgage, should be given to B. and her family in manner thereinafter mentioned," gave to her executors, immediately after her mother's death, the said 500l. with all interest due thereon, upon trust for B. &c. as therein mentioned. This money having been called in by the testatrix, the question was, whether the bequest of it was not specific, and consequently adeemed? And Sir William Grant held the bequest to be general; it being made of a sum of money, and the security being only mentioned as descriptive of the then situation of the money money, not the security, being the subject of gift. The principle is the same as that of the decree in Gillaume v. Adderley. His Honour thus expressed himself: "The essential characteristic of the legacy is, that it consists of a sum in which the testatrix admits that her mother and herself had some sort of joint interest, and which they were both desirous of giving to B. This characteristic was not at all dependant on the particular security on which the money might be placed. The testatrix considers the circumstance of its being at that time out on mortgage as merely accidental. She speaks of the 500l. we have now out upon mortgage. That is descriptive of the present situation of the money. The next day it might not be out upon mortgage, but it would still be the 500l. in which the mother and the daughter had a joint interest, and which at the time of the will they had out upon mortgage. The thing given is not the mortgage, but the money. It is the said sum of 500l. that she gives to her executors. What is the said sum? That sum of 500l. which belonged to her mother, and which at a given time was out upon mortgage. Whether it remained out upon mortgage at the time of the testator's death, appears to me a matter of indifference. That circumstance is no ingredient in the gift, either by way of condition or of inherent description. I am therefore of opinion, that the legacy is due."

(1) See ante, sect. 5. p. 169. and 1 Meriv. 178.

(m) 3 Meriv. 50.

It is observable, that the two last cases differ from Ashburner v. M'Guire, and the other authorities of that class, and before stated, in which the forms of bequest were not general, with a subsequent allusion to, or specification of securities, but primary gifts of the securities themselves.(n)

As to the second proposition, that although a legacy be bequeathed out of a debt, it will not, generally speaking, be a regular specific bequest of the debt itself, whether the bequest be of a sum of money, and therefore, in terms general, or whether it appear to have been given as a general legacy, upon clear inference arising from the whole will; which was the principle of the cases of Savile v. Blacket,(o) and Mann v. Copland,(p) before stated.(q) Such legacies are in one sense only specific, that against all other general legatees they have a precedency of payment out of the debt or security,(r) but in another sense the legacies are general, since if the debt be not in existence at the testator's death, or if it be insufficient to pay the legacies, the legatees will be entitled to satisfaction out of the general estate of the testator. A few cases will illustrate these observations :

In Roberts v. Pocock,(s) A. bequeathed to his nieces B. and C. the sum of 4000l. with benefit of survivorship, if either died under twenty-one, and if both died under that age, he directed the whole of the said 4000l. to fall into his residuary estate. He then gave to D. the sum of 500l. at twenty-one, with the like direction as to its falling into the residue, if she died under age. He also bequeathed to E. the sum of 500l. for the trouble he heretofore had in the management of his, (the testator's) affairs, and would have in the execution of the trusts of his will. The will then proceeded in this manner, -"And I direct that all the aforesaid legacies shall be paid, by and out of the monies which are now due and owing from A. Davidson of Madras, Esquire, upon bond; but my will is, that in case I shall receive the said monies, or alter the said securities, such receipt or alteration shall not be deemed or construed a revocation of any or either of the said legacies, but the same shall in such case be paid by and out of some other part of my estate and effects; and that all such legacies shall bear interest after the rate of five per cent per annum, from the time of my decease; and that the interest of the several legacies intended for the said B. and D. and E. shall be paid to them respectively, or be applied by my executors hereinafter named, for or towards the maintenance and education of them the said legatees; according to their several provisions so intended for them respectively, until the said principal legacies shall be paid and payable. And as to all the rest, residue and remainder of my estate and effects, of what nature or kind soever, and whether in settlement or not, I give, devise, and bequeath the same unto my dear and loving wife F. for her own use and benefit absolutely." And he appointed his wife and the said E., executor and executrix of his will. The bond was dated the 5th of May 1783, to secure

See ante, p. 173. (0) 1 P. Will. 778. stated supra, p. 154. (p) 2 Mad. 223. (9) Ante, p. 153. and vide supra, p. 166. et seq. as to legacies given out of stock. (r) 1 Meriv. 178.

(s) 4 Ves. 150, and see Earl of Thomond v. Earl of Suffolk, 1 P. Will. 461.

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