5000l. and an arrear of interest. The amount of this debt being diminished by receipts of the testator in his lifetime, the sum owing upon this security at his death was, 3,5831. 9s. 6d. The obligor proving insolvent, a question arose whether the above legacies, amounting to 5000l. given with a view to the money due upon the bond, should be made good out of the general residue of the testator's estate, which depended upon another question, whether they were to be considered specific or general legacies. And Lord Rosslyn, determined that the legacies were general, and said that the legacies were not given specifically, and that he could not apply any rule to them, which had been laid down as specific legacies; that the testator had not given the bond in form nor in substance, and that the legacies were charged upon the bond, but did not amount to a gift of it; that if the bond had been a good security, it was worth much more than the amount of the legacies with legal interest, from the death of the testator, and that, therefore, the benefit of the bond belonged to the residuary legatee, as a substantive part of the testator's estate, charged with the legacies,(t) that the Court would have laid hold of the bond, and not have permitted it to be applied to the prejudice of the legatees, except for the payment of debts; and that the legacies might be said to be specific, in the respect that they were not to abate. His Lordship concluded in observing, that there was no principle upon which he could say, that the legacies were not to be paid out of the residue, except by indulging in a strain of conjecture, which was too slight and too dangerous for the Court to act upon.

With the last case agrees the decision of Sir William Grant in Smith v. Fitzgerald.(u)

In that case A. after reciting in his will that the Nabob of Arcot was indebted to him in upwards of 10,000l. arrears of his annuity; and after directing, that bills, remitted on that account, should be lodged with his bankers, and the balance, after adjusting their account, paid to his attornies, made the following dispositions: should the whole of this sum be received at stated periods, I give and bequeath out of it 1000l. to B., 1000l. to C., 2000l. to D., 1000l., to E., my godson, 1000l. to F., my godson, 1000l. to G., my godson, to the daughter of H., by name Sarah, 2000l. of lawful money of Great Britain. I bequeath 1000l. of this debt to the use of the poor of the town of Woolwich in Kent, (as therein directed.) From this debt of his Highness, I give 500l. to the charity school of Madras, for, &c.; and 500l. to the different hospitals at Bath, to the relief, &c. I have here bequeathed 11,000l. to several purposes. The testator then said, "that should this just debt from the Nabob be paid," there would be coming to him 12,000l.; 1000l. of which he left for casualties; and he directed, that after payment of legacies (except those mentioned from the Nabob's debt, as they might require time,) the balance (exclusive of the Nabob's) should be divided among his trustees or survivors. It was one of the questions whether the legacies given out of the debt of the Nabob, were to be considered specific, or, in other words, whether that debt, whatever (t) See Lambert v. Lambert, 11 Ves. 607. stated ante, p. 171. (u) 3 Ves. & Bea. 2. 5,

its amount might be, was not intended to be divided among the legatees? And his Honour decided upon the principle before frequently mentioned, viz. the distinction between a gift of the fund itself, and a sum of money out of it, that the legacies were general and not of aliquot parts of the specific debt owing by the Nabob. He observed, that the testator had not directed the debt to be divided among the legatees in a given proportion, but on the contrary, gave to each a precise sum to be paid out of that debt, whenever it should be recovered; that it was clear the testator conceived that the legacies would exhaust, or nearly exhaust the whole debt, according to his computation of its amount, but that still a gift of a sum of money, though with ever so plain a reference to the amount of the fund, is very different from a gift of the fund itself, with all the chances of its actual amount.

In the following case the same Judge adhered to this distinction, and decided according to what has been stated, that when a legacy is given out of a fund, no other legatee can subject it to his demand until the first legacy has been satisfied. The authority alluded to is Acton v. Acton.(x)

In that case A. by a codicil bequeathed to his daughter B. a portion of 12,000l. and to his niece C. 4000l. directing that the latter sum should be paid out of the money in the hands of his bankers or agents in England. There was a sum exceeding 4000l. in the hands of A.'s agent when A. died, but his other personal estate was not sufficient to pay those two legacies and all the others given by the will. If the legacy of 4000l. were specific, there could be no question upon the right of the legatee to be fully paid out of the fund, and the question was, whether, as this legacy was in form general, but given out of a particular part of the personal estate, that circumstance constituted such a lien upon it as to entitle the legatee to have that fund appropriated in payment of her legacy, before any part of it should be applied in satisfying the other legacies; and Sir William Grant determined that she had such right.

Although the general rule of construction be such as before mentioned when legacies are given out of a debt or security; yet it is not so absolute as to admit of no exceptions, as we have seen in the fifth section when treating of bequests out of stocks or annuities in public funds.(y) If, therefore, it appear upon plain inference drawn from a strong, solid, and rational interpretation of the whole will, that the testator meant to give the indentical debt or security, then although the bequest be in form such as that according to the primâ facie rule of construction, it ought to be considered general, i. e. of so much money, and the debt or security a primary fund appropriated for its payment, still the intention so appearing will prevail and constitute the bequest specific, viz. of the debt or security itself. As an instance of this:

In Badrick v. Stevens,(z) A. bequeathed in the following manner: "I bequeath to B. and C. who formerly lived servants with me, the sum of 301. each, to be severally paid to them, within three months next after my death, out of 2001. due from D. to me upon bond. Also, I give to E. and F. the sum of 50l. each, to be severally paid

(x) 1 Meriv. 178. (y) Ante, p. 168. (z) 3 Bro. C. C. 431, ed. by Belt.

to them, within three months next after my death, out of the said sum of 2001. due to me from the said D. Also, I bequeath to the said D. the sum of 401. being the remainder of the said sum of 2001. due from him to me as aforesaid." And after giving other legacies, A. bequeathed the residue to G. and H. The money on the bond having been received by A. it became necessary to consider whether the legacies were given as specific parts of the bond debt, or as money legacies; that debt being pointed out as the primary fund for their payment. And Lord Thurlow determined that the legacies were specific, and consequently adeemed.

The similarity of the last case to that of Sleech v. Thorington (a) before stated, (b) will not have escaped observation. In both instances, the intention to bequeath specifically, plainly appeared from the disposition of the funds in fractional parts, and describing the gifts of the last portions as the remainder of the whole. That word clearly imported a reference to something that the testator had, and which he was disposing of specifically; the subject in the present case being the debt upon bond, and in the other South Sea stock. It is safer to ascribe Lord Thurlow's decision to the principle and authority of Sleech v. Thorington, than to the mere circumstance of the lagacies being equal in amount to the debt. For when there are no expressions, in reference to the fund, plainly manifesting that it alone was the subject of bequest, there appears to be no more reason for holding the legacies specific, because they happen, as a total, to equal in amount the fund referred to for their payment, than when there is only one legacy equal in value with the debt or fund; a circumstance which we have seen to be insufficient to render the legacy specific.(c)

SECT. VIII. Bequests of general personal Estate.

In the preceding pages have been considered what are and what are not specific legacies of chattels, sums of money, stocks, debts, &c. The next subject presenting itself is, when a bequest of general personal estate will and will not be specific. And,

1. When the bequest will be specific.

It was noticed in the beginning of the fourth section, (d) that to make a money legacy specific, the money must be so described by the testator, as to empower the legatee to say to the executor, deliver the sum bequeathed to me, which is in a particular chest, bag, or purse. In such a case, the thing given is distinguished and separated from the general estate, and specifically bequeathed, and capable of being delivered in specie.

The same tests must be applied in ascertaining whether legacies of general personal estate are or are not specific; for such bequests may be specific; yet the bequest of all a person's personal estate generally is not specific: the very terms of such a disposition demonstrate its generality. But if A. bequeath to B. all his personal estate at C., or in a particular house or country, the legacy will be specific; for it is confined in its extent, and falls within the description before given of such a legacy: B. can say to the executor, deliver to me all A.'s personal estate at C., or in the particular house or country, for I am entitled to receive it in specie.

(a) 2 Ves, sen. 561. (b) Ante, p. 164. (c) Ante, p. 158. (d) Supra, p. 176.

Accordingly, A. having personal property at B. and elsewhere, bequeathed to his wife C. all his personal estate at B. There were other legacies, and a deficiency of assets to pay all of them. The question was, whether the bequest to C. was specific; in which case she would not be obliged to abate with the other legatees? And the Court decided, that the legacy was specific.(e)

So also in Nisbett v. Murray, (f) the testator, after giving two specific legacies out of his property in the island of Jamaica, (having first charged all his property generally with the payment of debts,) bequeathed the rest and residue of his real and personal estates in the said island of Jamaica, to trustees, also his executors, to sell, and invest the proceeds, with all other monies belonging to his estate on security in England; and he then gave a variety of legacies, and the remainder of the monies, to his executors beneficially. Lord Alvanley determined, that this was a specific legacy of all the testator's property in Jamaica, from the effect of the controlling words "in the said island of Jamaica," to trustees, also his executors, to sell, and invest the proceeds, with all other monies belonging to his estate on security in England; and he then gave a variety of legacies, and the remainder of the monies to his executors beneficially. Lord Alvanley determined, that this was a specific legacy of all the testator's property in Jamaica, from the effect of the controlling words "in the said island of Jamaica."

The cases before referred to are authorities for the following bequests being specific: "of all the goods, &c. in a particular room"(g); or "of all goods and chattels in a described county"(h); or "of all plate, linen, and furniture in my house at A., or which shall be therein at the time of my decease."(i) The principle of decision is that which has been stated, viz. the severance of this particular property from the great body of the estate, and the specific gift of it to the legatee.

2. Since, then, a bequest of personal estate requires, as before mentioned, to be limited or controlled to some particular place, or to be referred to as in some person's hands,(k) in order to make it specific, it follows, that if there be no such restrictive expressions, a legacy of personal estate generally will be general, and not specific; so that if real and personal estates were given by will to A. for life, remainder to B., neither the circumstance of the bequest of the personal property being in the same sentence as the real, the devise of which was necessarily specific, nor the circumstance of the real and personal estates being dealt out together in portions, would be sufficient to constitute the disposition of the general personal property a specific legacy. This will appear from the following

case:

In Howe v. the Earl of Dartmouth,(1) A. devised to his wife B. all his personal estate whatsoever (with an exception) for life, subject to legacies, &c. He also left to her all his real estates for life, and

Sayer v. Sayer, 2 Vern. 688. Pre. Ch. 392. S. C.

(ƒ) 5 Ves. 150. 156, and see Sadler v. Turner, 8 Ves. 617. 623.

() Green v. Symonds, 1 Bro. C.C. 129, notes. (h) Moore v. Moore, ibid. 127. Gayre v. Gayre, 2 Vern. 538. Shaftesbury v. Shaftesbury, ibid. 747. Land v. Devaynes, 4 Bro. C. C. 537.

(k) Ante, p. 155.

VOL. I.

A a

(1) 7 Ves. 137.

afterwards all his personal and real estates to C. for life, and then to the first and other sons of D. in succession, subject to the payment of certain legacies and annuities. A considerable part of the personal estate consisted of bank stock and long and short annuities. B. died before A., and after the death of C. who survived A., a question arose between C.'s personal representative, and the person next entitled in succession, whether C. as tenant for life of such funds as bank stock, carrying a higher rate of interest, and long and short annuities wearing out rapidly, had not received a larger sum of money for interest and dividends than she would have been entitled to if the funds had been sold immediately after the testator's death, as they ought to have been, and the produce invested in the purchase of three per cent consols. That question necessarily depended upon a preliminary one, viz. whether the bequest of the personal estate was general or specific? If the former, C's receipts were too large, and could not be allowed to the prejudice of those persons intended to take after her. If the latter, C. was entitled to the enjoyment of the funds in specie from the death of the testator, and consequently to receive their full annual produce. And Lord Eldon determined that the legacy was a general one: and that C.'s estate should answer for the excess of her receipts as tenant for life; observing, that the legacy could only be specific upon one of two grounds, viz. either upon the words describing the personal estate, or upon the construction of those words, coupled with the devise of all the landed estates of A.; for every devise of land, however expressed, was of necessity specific. There being no description of the personal estate so as to render the bequest of it, even in this sense, specific; viz. expressive of A.'s intention, that the personal estate he left at his death, should be enjoyed by the successive legatees in its then state, his Lordship took the second ground, and said, that the intention to bequeath personal estate specifically, had never been considered manifest, from a disposition of the personal estate in the same clause with land, which must be taken to be specifically given: and that the cases did not go the length, that if the enjoyment of personal property were portioned out in life interests, with remainders over, it was specific.

Allusion was made in the last case, to legacies of general personal estate specific in this sense, that the legatee should take it discharged from debts and legacies. But this species of bequest does not regularly fall under present consideration, since its basis is an inference, not made in general cases, upon the bequest of all the testator's personal estate, but on the effect of that circumstance, connected with what arises out of other parts of the will, with regard to the intention to fix, upon other property, charges that would, in the first place, fall upon the personal estate bequeathed; so Lord Eldon expressed himself in the last case. The treating, therefore, upon this kind of specific legacy, will be postponed till we arrive at the chapter* in which it is proposed to consider the instances in which a testator's personal estate, instead of being the primary, will be only the secondary fund for the discharge of debts and legacies, viz. a fund in aid of the real estate.

* Chap. XII.