The subject next to be considered is,SECT. II. What will pass to a Specific Legatee under a general bequest of personal Estate in the Colonies. Since, as before observed, the effect of a bequest of personal property in a particular place is to pass that property only of the testator in the place described either at the date of his will or at his death, according to the terms of the disposition, (t) and it being a rule that the latter is to be considered the period, (except an intention to confine the operation of the bequest to the making of the will clearly appear, (u) it follows that if A. bequeath all his personal estate in Jamaica or in the East Indies to B., and remittances are afterwards made to England, and invested in the English funds, or are intended so to be, or upon some other security; the stock or money remitted, although consisting of colonial property, will not pass to the specific legatee; because it was not at the testator's death in the place mentioned in the will, and therefore does not answer the description of the bequest. To exemplify this by authorities. A. specifically bequeathed the residue of property in Jamaica to his executors to sell, and to remit to Great Britain, &c. the proceeds and all other monies belonging to his estate. It appeared that B. and C. were indebted to A. prior to his will, by judgments obtained in Jamaica. A. not being satisfied with those securities, authorized D. by letter of attorney, to sue for and receive all debts owing to him in England; under which D. took in England a bond from B. (who had left Jamaica and come to reside in this country), payable to A. by instalments, for what was owing on the judgments from B. and C. to A. D. also entered up judgment in the Court of King's Bench here, upon the warrant of attorney given by B. for that purpose, which last transactions took place three years before the date of the will. It was one of the questions, whether, under the above circumstances, the debt passed by the specific bequest? And Lord Alvanley, M. R. decided in the negative. 1st. Because it did not appear that the testator intended to include this debt; for, said his Honour, "the testator, at the time of making his will, must be supposed to have contemplated his affairs, and to have had a definite meaning as to the words he used. What then could he be supposed to mean by the direction to his executors to sell and dispose of his estate, and that the money to arise from such sale, with all other monies belonging to his estate, or that might belong thereto, should be remitted to Great Britain, &c.? Did he include this debt? If he were perfectly cognizant of this transaction, did he look to the payment in Jamaica by B.? He knew it was a debt payable by a debtor, who had removed from Jamaica, living in this country, who had given security for payment in this country, асcepted by his attorney, which is the same as by himself. At that time, therefore, it must be supposed he looked for payment in England, so that his debt could not be part of the property to be collected and remitted to England. My inclination is in favour of the legatees; but I do not see sufficient to prove that the debt formed (t) Supra, p. 188. et seq. VOL. 1. Ee (u) Ibid. part of that specific legacy." And, 2dly, because " if this debt were paid under the last engagement, the executors could not have received it under an administration in Jamaica, nor have given the debtor a discharge. If he had complied with the obligation they must have an administration here. It would then be a strong thing to say that the debt passed to them, when they could not by their administration in Jamaica have collected it."(x) So also in Sadler v. Turner, (y) A. bequeathed the residue of his fortune in India to his two children, and directed his executors there to remit to England, through the Company's treasury, all such property as he might be possessed of at his death. Between that event and the date of the will, 32371. were remitted to this country, and a bill for 500l. was in transitu when A. died. It was one of the questions, whether these two sums passed under the specific bequest of the residue of A's. India property to the two legatees? And Sir William Grant, M. R. declared, that so much of A's. property as was remitted after the will, and before A's death, and what was at that time in transitu were to be considered property not in India, and therefore not disposed of. His Honour observed, as the reason of the decree, that the will could operate only with regard to property in India at the death of the testator; and he continued, "Supposing the words to be taken as words of description, yet nothing can pass but what he has described. The expression of intention alone will not do; unless some words, actually disposing of the property, can be found." SECT. III. Of the title of a Specific Legatee to an excess of the fund, whether of capital or profits accrued between the date of the will and the death of the Testator. If With respect to the title of a specific legatee to an excess of the fund accrued or added to it between the date of the will and the death of the testator, that title must always depend upon the words of the bequest, viz. whether the words, consistently with the testator's intention, include within their import such excess. then A. bequeath to B. 5000l. bank stock standing in his name, and a bonus be given by the bank, under the statute 56 Geo. 3. chap. 96, sect. 3, in the interval between the date of the will and the testator's death, the additional capital will not pass to the specific legatee. It was so determined by Sir Thomas Plumer, V. C. in Norris v. Harrison.(z) In that case A. after reciting that he, by the will of B. was empowered to dispose of several capital sums of 1400l. &c. then standing in C's. name in the books of the Governor and Company of the bank of England, bequeathed the said several sums of 1400l. bank stock, &c. unto D. upon trust, &c. A. also bequeathed 11,000l. capital bank stock, then standing in his name in the same books, to E. and E.'s children, as therein mentioned. Subsequently to those bequests, and during A.'s life, the bank increased the capitals of each proprietor, by an addition of twenty-five per cent, by which the 1400l. stock was augmented to 1750l. and the 11,000l. to 13,750l. (y) 8 Ves. 617-623. (x) Nisbett v. Murray, 5 Ves. 149-157. which were standing in A.'s name at his decease. One of the questions was, whether these bonuses or additional capitals passed to the specific legatees with the original stocks? And it was determined in the negative, for the following reasons: "The specific legacy," said the Court, " is of 11,000l. bank stock, and it cannot be said that 13,750l. bank stock passes under a legacy of 11,000l. bank stock. There are no words in the will to pass the additional capital to the legatee. On the same principle the legatees of the 1400l. stock are entitled only to that stock.” It seems to be an inference from the principles of the last two cases, that if a specific bequest be made of all or the whole of a testator's bank stock, or three per cent consols, now standing in his name, subsequent bonuses given by the bank during his life, or after purchased or acquired three per cents, cannot pass, because the terms of the gift do not embrace them. But that if the bequest be of all the bank stock or three per cent consols, which shall be standing in the testator's name at the time of his death, such bonuses and after acquired annuities will pass to the legatee, as falling within the words and intention of the testator.(a) To apply these rules to the instance of a partnership. The last two cases prove that intention alone is insufficient to pass increased capital to the specific legatee; but that words disposing of it are necessary. If then A. bequeath to B. all that is now due to him (A.) in respect of his partnership with C. nothing would belong to B. but what was actually due to A. at the date of his will, since the words of gift confine the legacy to that period, and increased capital and profits between the date of the will and the testator's death would form parts of his general personal estate. But if the bequest were of all A.'s interest in the concern, or of his moiety or share in the capital and profits of the partnership, (terms not confining the legacy to the date of the will, but sufficiently comprehensive to include whatever A. might be entitled to on the above accounts at his death, (b) the whole then due to him would pass to the specific legatee. SECT. IV. Of Mistakes in regard to the Subject specifically bequeathed. And, 1. Of mistakes in the description of the fund, and the admissibility of extrinsic evidence. It was noticed in the last chapter,(c) that a mistake in describing a chattel specifically bequeathed, would not be fatal to the legacy; and an instance was produced of a horse bequeathed as white, when the only one the testator had was black. The principle was, that the testator meant to give his horse; which clearly appearing, the Court, in support of the bequest, rejected the word white as a mere error of description, so that the clause standing thus, "I give my horse to B.," was sufficient to pass the black horse. But it must be observed, that the state of the testator's property when he made his will was necessary to be considered; which, when compared with the description of the horse bequeathed, showed that there was no white horse to be delivered to the legatee. Hence a (a) See 15 Ves. 327. (b) See ante, p. 188. (c) Supra, p. 151. latent ambiguity arose from the above comparison in regard to the testator's intention, viz. whether he did not intend for the legatee the horse he was possessed of when he made his will, whatever might be its colour; yet, without taking into consideration the testator's property, it is obvious, that the black horse could not be claimed by the legatee under the description of a white one. It however being settled, that in such a case the bequest of the horse will take place upon the inference drawn from a comparison of the state of the testator's property when he made his will with the terms of the bequest, we shall consider the application of the principle to instances of stock.(d) Suppose, then, a testator being possessed of three per cent consols, but having nothing in three per cent reduced, bequeathed to B. all his stock in three per cent reduced: if the state of his property could not be admitted, to show error in the description of the fund, the legacy would be void; but since, as in the former case, it was taken into consideration, consistency of principle requires that it should be so in the present, and consequently the error being made to appear, the bequest will pass the stock in three per cent consols. In Selwood v. Mildmay, (e) Lord Alvanley expressed himself on this subject to the following effect: "If the testator had the stock at the time, it would be considered specific, and that he meant that identical stock, and any act of his destroying that subject would be a proof of animus revocandi; but if it be a denomination, not the identical corpus, in that case, if the thing itself cannot be found, and there is a mistake as to the subject out of which it is to arise, that will be rectified." We shall now consider the cases. In Door v. Geary, (f) A. bequeathed to his wife B. 700l. capital East India stock, in which he was then interested, possessed of, or entitled to. He had not at that time any East India stock, but there was 700l. bank stock, to which his wife was entitled under the will of C. (whose executrix she was,) after payment of debts, and which A. afterwards transferred into his name and made his own.. The question was, whether this 700l. bank stock should pass, although described as East India stock? And Lord Hardwicke decided in the affirmative, observing that the mistake was error demonstrationis, and that the words East India should be rejected. In addition to the above authorities, is that of Lord Kenyon, M. R. in Dodson v. Waterman, (g) in which A. bequeathed to B. the sum of 700l. capital stock in the three per cent consols, part of his then stock in that fund. He was not possessed of any stock whatever at the bank when he made his will, or at the time of his death; but he had 1800l. three per cent South Sea annuities. A. was blind at the date of his will, and had been so for many years. And the only question was, whether B. was entitled to 700l. part of the South Sea annuities, A. never having had any such stock as was specified in his will to answer the bequest? The Master was directed to report to the Court the state of the testator's property at the date of his will, who certified as above. Upon which Lord Kenyon ordered a transfer of 7001. South Sea annuities to B. The principle of the last decision is the same with that of the case (d) See Evans v. Tripp, 6 Mad. 91. (f) 1 Ves. sen. 255. (e) 3 Ves. 310. preceding it, viz. that error demonstrationis non nocet, and that, to enable the Court to correct the mistake, the state of the testator's personal estate when he made his will, may be resorted to. His Honour accordingly observed, that the state of the testator's property made it manifest he was under a mistake as to the particular stock belonging to him; but that, whatever stock it was, he certainly intended to give the sum of 700l., part of it, to B. So in Gallini v. Noble, (h) the testator bequeathed all his money in the Bank of England to his daughters. It appeared that he never had money in the bank, but that he was entitled to some three per cents and five per cents bank annuities. Sir William Grant, M. R. held that those annuities passed, notwithstanding the inaccuracy with which the testator expressed himself. And in Hewson v. Reed, (i) the testator gave legacies of stock, "being part of stock standing in his name in the books of the Bank of England," when all the stock to which he was entitled, was standing in the names of trustees. Parol evidence of mistake was admitted to show and rectify the error in describing the fund. Upon similar principle, if a testator evince an intention to bequeath sums of money owing to him by B. on bond and other securities, and in describing the subject, as a whole, he mentions the sum total correctly, but incorrectly states it as owing upon B.'s bond only; the whole debt owing by B. on all the securities will nevertheless pass. For when the state of the testator's property is consulted, which shows that a part only of what was intended to be given, was secured by the bond of B., but that B. was indebted to the testator in the sum total mentioned in the will upon the bond and other securities; the latent ambiguity of mistake arising from comparison of the terms of the bequest with the property, enables a court of justice to supply the defect in description by aid of the context; the intention clearly appearing from the context to bequeath the whole of the debt due from B. in whatever manner secured.(k) Thus in Williams v. Williams, (1) a case in which A. made the following disposition : "Whereas my brother B. stands indebted to me by bond in the sum of 300l. and upwards, now I dispose of the same as follows: one-third thereof to the said B.; one-third to C., and one-third to D.;" the three being brothers of A. 'The debt owing by B. was as executor of E., who was indebted to A. in 2001. only by bond; in 100l. by covenant; and who had also given him a legacy of 50l. which remained unpaid. Upon a question whether the whole debt owing by B., or the 200l. only secured by the bond passed? Lord Kenyon, M. R. said, he had no difficulty in declaring what A. meant to give, although the expression did not describe the situation of the money. His Honour conceived that A. thought of the quantity of the property; for having three relations, B., C. and D., he meant to give them the 300l. owing to him from B., and consequently to include all B.'s debt. The decree was, that the debts by bond and covenant, and the legacy, passed under the bequest. (h) 3 Meriv. 692. and see Penticost v. Ley, 2 Jac. & Walk. 207. (i) 5 Mad. 451. (k) See ante, p. 213. (1) 2 Bro. C. C. 87. ed. by Belt, and see Milner v. Milner, 1 Ves. sen. 106. infra, vol. 2. ch. 21. |