Most of the cases before produced in this section were instances of totally erroneous descriptions of the things intended to be given, as where testators had no property whatever to bequeath in the funds they referred to. We shall now proceed to consider(ƒ) 3. The consequences of mistakes in the calculation of the specific fund of which the testator is possessed when it is wholly given to an individual or for a specific purpose, and when to several persons in fractional parts. As to the first it is settled, that when the intention is apparent from the will to give a particular fund, a wrong description or recital of its actual amount will not disappoint the bequest whether the fund be less or more than as described. Thus in the Attorney-General v. Pyle,(g) A. bequeathed as follows: "Whereas there is now owing to me from B. and company the sum of 1000l., I do hereby give the said sum to C." The debt due to A. at his death was no more than 3651. 17s. 6d. And Lord Hardwicke decreed that sum to C., observing, "that a wrong description and falling short would not defeat the legacy." But when the fund exceeds the sum at which it is estimated, and the form of bequest purports to give the estimated sum only, the excess will not pass to the specific legatee, unless it clearly appear, from the will's context, that the whole of the property was meant to be given, and the mentioning of the smaller sum was a mistake; because the words of the bequest comprehend no more than the latter sum.(h) This will appear from the case of Hotham v. Sutton:(i) In that case A. by her will recited that she was possessed of 12,700l. three per cent consols standing in her name, and gave the same or so much of such bank annuities as should be standing in her name at her death, to her executors upon several trusts. When A. died, and also when she made her will, she was possessed of 14,765l. 16s. 9d. three per cent consols; and it was a question whether the excess, beyond the 12,700l. three per cent consols, should pass to the executors under the above bequest? And Lord Eldon determined that the 12,7001. three per cent consols only passed from the uncertainty of the real intention of the testatrix; for his Lordship said that, considering the bequest not to be of 12,700l. three per cents, but of so much of such annuities as should be standing in her name at her death; such would be a very difficult construction,-first, as, if that were A.'s intention, though there should be ten times the amount, there was no reason for reciting she was possessed of the above sum of 12,700l.; and secondly, from the consequence that if A. had sold the whole of the stock, and remained for some time without any, and then bought other stock, the Court must have held that she had bequeathed not what she had at the date of her will, but what she had at her death. His Lordship also observed, that he could not suppose A. to be ignorant of the state of her property, unless the fact appeared upon her will; and that it did not follow from the recital that understanding she possessed no more than 12,700l., she intended to give all she possessed, whether more or less, which would (f) See Colpoys v. Colpoys, 1 Jac, 451. (h) See ante, p. 218, 219. (g) 1 Atk. 435. amount to this; that measuring her bounty and the extent of it (as she appeared to do by the recital,) she intended to give 200,000l. if she should have it. Between the two propositions that she meant to dispose of so much of such bank annuities as by the recital she said she had, or of such as she might have, though upon the latter construction, if she acquired stock to the amount of 200,000l. the whole must have passed to make good a bequest, the extent of which she measured by the recital as to 12,700l., his Lordship said the better legal opinion seemed to be that the last sum only passed. With respect to the consequences of a miscalculation of the specific fund where it is bequeathed in fractional parts. A general remark may be made as applicable to this subject: that when a particular fund is given in parcels, and the sums, or parts of stock are mentioned, but the property is taken to be more than its real amount or value, the fund must be divided amongst the legatees according to their proportions of it. But that if the last taker be named or described as residuary legatee of the specific subject, he will only be entitled to what (if any thing) shall remain after the prior specific legatees have been paid in full their several proportions, subject however to exceptions when a contrary intention appears from the context of the will. These observations will be illustrated by the following cases: In Danvers v. Manning,(k) A., after specifically bequeathing by will parts of his stock in the public funds, proceeded by codicil to the following effect: "I find that I have willed away only 5600l. in bank four per cents, and I find I have there at present 6000l.; I give the interest of the remaining 400l. to B. for life, and at her death, it must go with the rest to C." A. was mistaken in what he had given by his will, for the residue of his bank four per cents exceeded 400l. And it was contended for B. that the legacy was not particular, but residuary, so as not only to pass the 4007. but the surplus of the fund. And Lord Thurlow was of that opinion, although he observed that A. had miscalculated the particular residue, and probably did not mean B. to take so much, yet his Lordship thought that in declaring B. to be entitled to the whole of it, he was nearer the point of A.'s intention, than any of the constructions contended for against it. It is to be noticed, that in the last case, the amount of B.'s legacy was specified; yet, since it was given in the form of residue of the fund, and there was no expression or intention as to what should become of an excess beyond the 400l. Lord Thurlow gave it to B. in the character of residuary legatee of the specific property. But in an instance which will be next produced, although the legatee took, as in the last case, the remainder of the specific fund in the form of a residue; yet the Court decided upon the context of the will, that he was to be considered as much a particular legatee of his proportion, as the other specific legatees of their shares, upon the principle, that the testator had assumed the property he directed to be sold, would produce a certain sum, which he intended to be divided amongst the persons named in his will; it being supposed (k) 2 Bro. C. C. 19. 22. Ed. by Belt. 1 Cox, Rep. S. C. 203. that he computed the share of the last taker, although it was not named, but given to him as the residue of the fund. Thus in Page v. Leapingwell,(1) A. devised to trustees certain lands to sell, but not for less than 10,000l. A. under the belief that the property would produce at the least that sum, proceeded to dispose of it in fractional specified sums for the benefit of B. and other persons; and after payment of those legacies, he directed his trustees to invest the "overplus" monies arising from the sale in the public funds for the equal benefit of C. and D. A. afterwards made a general residuary disposition of his property. The lands were sold for less than 7000l. under a decree; and one of the questions was, as to the interest which C. and D. took? If they took in the character of residuary legatees of the fund, they would be entitled to nothing, as there was not any surplus; but if as particular specific legatees with the others, then they would be entitled to participate in the fund with such other legatees, in the proportions intended, if the property had produced 10,000l. (proportions intended, which amounted to 22001.) and to be paid what should appear to be owing on that sum, after abating with their specific co-legatees: and Sir William Grant, M. R. was of opinion, that C. and D. were so entitled, since the testator assumed that he had 10,000l. to distribute, and made distribution on that supposition; meaning, however, that if there had been an excess of the fund, C. and D. should have it. His Honour, therefore, upon intention, collected from the context of the will, restrained the general import of the word "overplus," to the meaning of a certain sum remaining of an ascertained fund, after taking out of it the other sums specifically given, and considered that all the legatees were intended to have certain defined parts or proportions of it, by whatever words they were given. We may remark, that of the last two cases, the first is an authority, that a legatee of part of a specific fund given to him in the form of residue, the supposed amount of which residue is named, will, nevertheless, take in a character of residue, whatever excess there may be beyond the specified sum; and the second, is an authority that whether the sum be mentioned or not, if the fund have been erroneously estimated, and is therefore unable to answer in full, all the specific dispositions made of it, a legatee in form residuary, will be considered particular, and entitled to a share of the property, (estimated at what would have been his proportion if the fund had been of the amount supposed,) after abating with his co-legatees. SECT. V. The rights of SPECIFIC LEGATEES against the EXECUTORS. If a legacy be of a silver cup or a jewel, and it be in pledge at the testator's death, the legatee has a right to call upon the executor to redeem it, and deliver it to him ;(m) and so it is by the civil law.(n) So also if the bequest were of specific stock, and it happen to be sold by the executor, when there was no necessity for the sale to pay debts, the equity of the legatee is to have the stock replaced according to its value at the end of a year next after the testator's (2) 18 Ves. 463, (m) 2 Bro. C, C. 113. (n) Swinb. pt. 7 sect. 20. p. 548. death, since the fund, if not sold, was then transferable to the legatee.(o) In Chaworth v. Beech,(p) a specific legacy of a note for 8000l. was given to B. The amount was paid into Court, pursuant to an order, in a cause then depending about six years before this suit; and the money was laid out in three per cent consols. In the first case the legacy was considered general, a mistake corrected in the present. The question was, whether B. was entitled to the sum due upon the note, or to the stock purchased with it? And Lord Alvanley, M. R. declared, that B. was entitled to the sum due upon the note at the time it was paid into Court, with interest at four per cent from that period. And in answer to what was insisted to the contrary, viz. that B. was only entitled to the stock purchased; "That," (said his Honour,) "would be the greatest injustice to B. for she had a right to the specific legacy; and if the assets did not want it, she had a right to have it delivered up. She was not bound to lay it out in the funds, but if she had so done she would have a right to the rise and be liable to the fall. Instead of that, the executors having insisted that it should not go out of Court, it was paid in and laid out in stock." The Court, therefore, decreed, as before stated; and that B. was not obliged to take the stock which had become depreciated in value. Upon the same principle, if a horse were specifically given, which the executor refused to deliver, lest there should be a deficiency of assets to pay debts, and having used and worked the horse a considerable time, he afterwards offered to deliver him to the legatee; the latter may insist upon the value. Or if the horse had been unnecessarily sold, and the proceeds applied in payment of debts, the legatee would be entitled to the value of the animal, with interest, from the moment it was so disposed of.(q) It may be considered as settled, that after a decree obtained in a suit for the administration of assets, the Court will not only restrain executors from selling(r) or applying specific legacies in discharge of debts, but enjoin creditors from proceeding at law against the executors,(s) upon the principle that the assets are to be administered in equity, and no delay or injury can arise, since the funds will be properly applied under the eye of the Court; and if the plaintiff neglect to prosecute the decree, a defendant or a creditor, who had proved his debt before the Master, will be permitted to do so.(t) So far the law and its principle are clear. But it may happen that specific legacies, if disposed of, may admit of no adequate compensation to the legatees, as of family pictures, &c.; and that an executor, from malicious motives, may be desirous and intend to apply a specific legacy to pay debts, although the general assets may be sufficient to satisfy all demands. And for the purpose of affording a pretext for such a procedure, he may in collusion with a creditor, induce such creditor to bring an action, and (1) 4 Ves. 556. 563. 567. (7) 4 Ves. 563, (8) Kenyon v. Worthington, 2 Dick. 668. Brooks v. Reynolds, 1 Bro. C. C. 183 Goate v. Fryer, 3 Bro. C.C. 23. Paxton v. Douglas, 8 Ves. 520. Perry v. Philips, 10 Ves. 39, 40. Gilpin v. Lady Southampton, 18 Ves. 469. Jackson v. Leaf, 1 Jac. & Walk. 229. Morley v. Bird, 3 Ves. 629. (2) See Moseley's Rep. p. 376. (t) Powell v. Wallworth, 2 Madd. 183. Sims v. Ridge, 3 Meriv. 458. then pretend that he was under the necessity of paying the debt with the specific funds as the only property in his possession with which he could discharge the demand. In the absence of authority, it may be presumed, that in the first case a court of equity will restrain the executor from acting contrary to his duty, and in opposition to the testator's intention; and that in the second, the Court will not only enjoin the executor from disposing of the specific legacies, but will also restrain the creditor, even before decree, from receiving satisfaction out of them, in consequence of legal proceedings begun and continued in fraudulent collusion with the executor.(u) It is however clear, that the Court will give such directions to the executor as may be necessary for preserving the specific property to the legatees; and which was done by Lord Eldon in the case below referred to.(x) SECT. VI. We shall lastly proceed to consider the Rights of Specific Legatees of Goods and Chattels in remainder, against those entitled to them for life. 1. When an inventory or security will be required. In instances where parts of a testator's personal estate are specifically bequeathed for life, with an executory limitation after the death of the tenant for life to another person; the first legatee must sign and deliver to the second an inventory of the chattels, expressing that they are in his custody for life only, and that afterwards they are to be delivered and remain to the use and for the benefit of the second legatee.(y) But it seems to have been the ancient practice of the Court of Chancery to require the person entitled to the partial interest, to give security to or for the benefit of the legatee appointed to succeed him.(z) The practice, however, became gradually altered as above stated, upon a conviction, that requiring from the first legatee only an inventory of the property specifically bequeathed, was attended with more equal justice to both legatees. Besides, as the testator had thought proper to entrust the first legatee with a personal use of the articles for life, it was not for the Court to destroy that confidence, except under special circumstances. But if such circumstances be shown and proved as would make it dangerous to trust the chattels in the hands of the first legatee, without taking a sufficient security, as in the instance of insolvency, such security will be required. In Foley v. Burnell, (a) Lord Thurlow thus expressed himself: "The cases as to tenant for life giving security for the goods, have been over-ruled, and the Court now demands only an inventory; which is more equal justice, since there ought to be danger in order to require security." 2. Effect of renewal of leases by specific devisees for life. It has occurred that devisees of partial interests in terms of years have renewed them, and questions have arisen between those devisees and the persons appointed by the will, to take them in remainder, upon the subject of the beneficial interests in the new leases. But the following rule appears to be firmly settled, viz. that (u) Alsager v. Rowley, 6 Ves. 750. 1821, since reported, 1 Jacob. 108. (x) Clarke v. Lord Ormonde, about April (y) 3 P. Will 336. 1 Atk. 471. 2 Atk. 82. (z) 9 Mod. 93. 2 Vern. 453. (a) 1 Bro.C.C. 279, & see Rous v. Noble, 2Vern.249. |