be specific whether the legatee be a stranger or the wife or child of the testator; for whatever may be the intention imputable to a testator, when such a bequest is made in favour of a wife or child, it rests in probability only, and is defective in not being apparent in his will. Besides it is not (as before observed) the purpose or object to which a legacy is applicable that makes it specific, but the intention properly expressed or fairly and clearly to be collected from the will, to give a part of the testator's personal estate that can be distinguished and identified from the remainder.

In Hume v. Edwards,(l) an annuity charged upon the testator's personal estate was bequeathed to A. for life. And Lord Hardwicke determined upon the authority of Alton v. Medlicot, that the bequest was not specific.

In the case of Alton v. Medlicot, (m) there was a direction by will to lay out a portion of the personal assets in the purchase of an annuity. That direction was held to be a general, and not a specific legacy. Lord Hardwicke appears to have ascribed the decision to the form of bequest being merely a direction to lay out, &c. and not a gift of the annuity; but he observed, that the Court afterwards considered such a distinction too subtle, and had therefore decided(n) that an annuity by will out of personal estate by direct devise or legacy, should abate with general legacies. But it was observed by his Lordship, that such only was the general rule, for the intent of the testator on the construction of the will must be followed, if he prefer such annuitant before other legatees; and his Lordship thought that such intention appeared in the case of Lewin v. Lewin.(o) But since these bequests bear no similitude to specific legacies, and are admitted to be general, (p) and since the claims of the wife and children arose upon questions of their being obliged to abate, pari passu, with general legatees, the consideration of the cases upon this subject is postponed till we arrive at the seventh chapter, which treats of the abatement of general legacies.

SECT. V. Of Stock or Annuities in public funds.

From the definition of a regular specific legacy in the beginning of the chapter, it is obvious that stock or government annuities may be specifically bequeathed; but in order to make the bequests specific, the intention that they should be so, must be clear, otherwise the bequests will be general.

1. The word "my" preceding the word "stock" or "annuities" has frequently been adjudged sufficient to render the legacy specific. If, therefore, I were to bequeath to B. my capital stock, suppose 1000l. in that of the India Company,(q) or "1000l. in my stock," or "part of my stock",(r) the legacies would be specific.

2. But it seems to be settled that mere possession by the testator, at the date of his will, of stock or annuities of equal or larger amount than the bequest, will not (without words of reference, or an intention appearing upon the will that he meant the identical stock of

(1) 3 Atk. 693. (m) Cited 2 Ves. sen. 417. (n) Hume v. Edwards, above.

(t) Ibid. 421.

2 Ves, sen. 415. Ashburner v. M'Guire, 2 Bro, C. C. 108. Barton v. Cooke, 5 Ves. 461. Norris v. Harrison, 2 Madd. 280. Choat v. Yeats, 1 Jac. & Walk. 102. (r) 4 Ves. 750. 1 Eq. Ca. Abr. 302.

which he was possessed) make such bequest specific. In proof of this,

A. bequeathed 1000l. capital South Sea stock to his wife for life for her separate use, with a power of disposition among her children. A. was possessed of 1800l. of that kind of stock when he made his will, which he afterwards reduced to 2001. and again increased by purchase to 1600l. It was one of the questions, whether the reduction was not an ademption, which depended upon a prior inquiry, whether the legacy was specific? And Lord Talbot was of opinion that the legacy was not specific, remarking that it was not the particular stock the testator was possessed of which he gave, but the bequest was merely descriptive of the nature of the thing given, of which he had sufficient to answer the legacy at the time of his death.(s) Again,—

In Simmons v. Vallance,(t) B. bequeathed as follows: he gave to C. the interest of 100l. new South Sea annuities, for life, and after his death to be equally divided among his children; and he also gave to C.'s children living at B.'s death, "the sum of 50l. each new South Sea annuities," with interest from his death, and the principal at twenty-one. B. further gave to D. the interest of 100l. new South Sea annuities for life, and after his death to devolve to E. When B. died he had 8001. new South Sea annuities standing in his name, which he was presumed to have had at the date of his will, although it was not stated. The only question was, whether these legacies were general or specific? And the Master of the Rolls was of opinion that they were general legacies, and therefore liable to abate with the other general legacies.

So also in Wilson v. Brownsmith,(u) A. bequeathed to B. and C. "2001. four per cent consolidated bank annuities." And it was one of the questions, whether the form of bequest was specific? And Sir William Grant decided that it was general, and not specific.

The three last cases are authorities that where a bequest is general of stock or annuities, the mere circumstance of the testator having the same, or a greater quantity of stock or annuities answer-. ing the description of those given, will not convert the bequest into a specific legacy. But the case of Ashton v. Ashton should be adverted to, which although it may, on the first impression, appear to militate against the last decisions, is yet capable of being reconciled.

In that case, (x) A. bequeathed to trustees 6000l. South Sea annuities, in trust to sell and lay out in the purchase of lands to be settled, &c.;, and he afterwards by a codicil gave them a further sum of 1200l. to the same uses. A. having only 53601. South Sea annuities at the date of his will, Lord Talbot determined the bequest of annuities to be specific; and, that therefore, the deficiency of the fund should not be supplied out of A.'s general personal estate.

It will have been noticed that in the last case, there were no

(8) Partridge v. Partridge, Forrest, 226.

(t) 4 Bro. C. C. 345, and see Webster v. Hale, 8 Ves. 411. S. P.

(u) 9 Ves. 180.

(x) Reported in Forrest, 152. and 3 P. Will. 384. Approved of in Sleech v. Thorington, 2 Ves. sen. 564. and adopted in principle by Lord Thurlow in Danvers v. Manning, 2 Bro, C. C. 18.

words of reference to any particular annuities which the testator had at the date of his will; hence, the inference that he intended the identical South Sea annuities he was then possessed of, must have arisen from some other circumstance, namely, the gift of them to the trustees in the form of a present legacy in trust to sell; and which it is presumed distinguishes this case, and reconciles it with the authorities before stated. So explained, there does not appear to be any case with which the present is inconsistent, or by which it has been either expressly or necessarily over-ruled, as has been supposed;(y) but it seems to remain an authority to this extent: that if a person, having 1000l. three per cent consols, bequeath 1000l. three per cent consols to trustees, in trust to sell, &c. the bequest will be specific; the intention being manifest, not conjectural, that from the direction to sell three per cent consuls the testator referred to the stock he then had; such direction being equivalent to an express gift of the fund. The principle appears to be sound, for it is more reasonable to impute to the testator an intention that his trustees should sell the annuities which he had when his will was made, than that they should, after his death, buy similar annuities for the mere purpose of immediate sale, which they must do if they acted according to the letter of the will.(z) This appears to distinguish the case of Ashton v. Ashton from Sibly v. Perry, after mentioned. (a)

3. We shall now proceed to consider the effect of a testator (who possesses stock or annuities in a particular fund) bequeathing a given sum of money, stock or annuities in that fund, without more particularly referring to, or marking the corpus of the identical stock which he actually had in that fund at the date of his will. It has been observed that clear intention is necessary to make a legacy specific; but it does not exist in the present instance, for the testatator might only mean to direct his executor to purchase with his general estate so much stock in the fund described: such is the legal effect of the bequest; and that it is not specific, but general, (b) will appear from the majority of the following cases:

A. bequeathed to B. "5000l. in the old annuity stock of the South Sea company," and after two or three intervening legacies of stocks of different kinds, he "gave to C. 5000l. in the old annuity stock of the South Sea company." When the testator made his will, and also at his death, he had only 5000l. in old South Sea annuity stock, which B. claimed as legatee. The question was, whether B. and C. were entitled to 5000l. each South Sea annuity stock, in which case it was necessary to resort to the general assets, or whether the legacies were specific; for if specific, then there being only one 5000l. South Sea annuity stock, the two legatees would be under the necessity of abating inter se, and dividing the fund between them. The question having been submitted to the Master of the Rolls, he declared that as there was only one 5000l. old South Sea annuity, one only could pass by the will, which with the interest accrued since the testator's death, was devisible between the two legatees. But that decision being unsatisfactory, the legatees appealed to Lord Hardwicke, who reversed the decree, deciding that the legacies were

9 Ves. 181.

See infra, p. 163.

(z) See 2 Ves. sen. 564. 1 Atk. 418.

(7) See 1 Atk. 416.

general, and not specific; and he ordered the deficiency to be made good out of the general assets. (c)

The case of Avelyn v. Ward, (d) afterwards determined by his Lordship, appears to be not only contrary in principle to the last, but to the authorities after stated. In that case, one of the bequests was, "of 20001. in the stock of South Sea annuities, to trustees in trust to pay the produce to A. for life, and to retain after her death 10001. part of the 2000l. in trust for B. but to pay the dividends to her during marriage, and after its determination, to tranfer the 1000l. to her if living, or if dead, according to her appointment." The testator also gave the remaining 1000l. after the death of A. to several persons. There was another legacy "of 1200l. of the stock called South sea annuity stock, in trust for B. These several legacies, Lord Hardwicke held to be specific, from the mere circumstance (as it is presumed) of the testator having been possessed of more South sea annuities when he made his will, than the amount of the legacies given in that fund, whence his Lordship inferred an intention in the testator to bequeath so much of the identical stock he then had, and not to impose an obligation upon his executors to purchase the necessary quantity of stock to answer the legacies, To this, it may be answered, that if the circumstance of having stock at the time of the date of the will, be of itself sufficient to make a bequest of simìlar stock specific, all legacies of stock, whatever their form may be, and however regardless of the fund then actually standing in the testator's name, must be specific; a doctrine in opposition to Partridge v. Partridge, and the cases before stated, and also to the other authorities which will be afterwards produced.

The present case is much weaker than that of Ashton v. Ashton, (e) referred to in it, for there the trust was to sell 6000l. South Sea annuities, which direction of sale raised an irresistible inference that the testator meant and referred to a sum in the like annuities, which he had when his will was made, though of an inferior amount, and that he could not be so unreasonable as to have intended that his executors should purchase South Sea annuities for the mere purpose of selling again, when he, at the date of his will, was possessed of similar annuities, to which the trust could with propriety be applied. With respect to the expression "remaining," used in bequeathing 1000l. residue of the 2000l. South Sea annuities, it is ambiguous, and capable of being referred to annuities of the latter amount, to be purchased by the executor, as well as to those of which the testator was possessed when he made his will, an ambiguity, not removed as in Sleech v. Thorington (after stated) by the additional words "now standing in my name.' Besides, if it be true, as appears from the cases, that courts of equity are always anxious to adopt constructions in favour of general and against specific legacies, to avoid the inconveniences to which the latter are exposed; and that these courts must be satisfied by express words or mainfest intention appearing upon the will, that the testator meant to bequeath all or part of the identical stock he possessed when he made such will, before they pronounce the legacies to be specific, it seems difficult to

Purse v. Snaplin, Ibid. 415. (d) 1 Ves, sen. 424, et vide Belt's Suppl. p. 184.
Stated supra, p. 158.

form any other conclusion upon the present case, than that it is one which, if not now clearly destitute of authority, may be considered to be very doubtful.(f)

In Bronsdon v. Winter,(g) another case upon this subject, A. bequeathed to B. and C. "the sum of 2000l. capital stock in the South Sea Company." The testator was possessed of 2000l. South Sea stock and no more, at the time of making his will, and in the months of February and March next afterwards, he sold 1500l. part of the 2000l. The question was, whether the bequest of the 2000l. South Sea stock was to be considered specific or general? And Verney, M. R. determined it to be general. Some stress (said he) has been laid upon the words "the sum" of 2000l. in the will, as if by them the testator meant that quantity of stock only. But I think no weight is to be laid on that, for if he had said 2000l. South Sea stock, that would equally express quantity, and any 2000l. stock would answer this legacy; for one stock does not differ from another, though one moveable does differ from another, and it is admitted that if the testator had possessed no stock, the executors must have bought 2000l. stock, which shows that any 2000l. stock would satisfy this bequest. The fact, as proved, is, that though nothing particular is mentioned in the will to make the legacy of the stock specific, yet the testator, at the time of making his will, had the precise quantity of stock. Here seems the stress of this case. But the testator has not used words to make it specific. And if legacies are to be specific or not, from the testator's manner of wording them, and the natural description would have been by words different from what are here used, why should the Court, from the circumstance of the testator having just 2000l. stock, determine that he meant that individual stock?

So also in the Bishop of Peterborough v. Mortlock,(h) G. master of Clare Hall, Cambridge, after giving several pecuniary legacies, bequeathed "to A. 100l.; to B. 100l.; to Storey's Hospital 34001. in the three per cents; the annual dividends of which to be every half year divided betwixt four widows." It appeared that the testator, at the times of making his will and of his death, had 22001. only standing in his name in the three per cent annuities; of which 150l. belonged to other persons, and that the remaining 2050l. were his own. There being a deficiency of assets, the question was, whether the legacy of 3400l. in the three per cents was to be considered a specific or general legacy? And the Lord Chancellor thus expressed himself: "In this case I confess it does not appear to me that there is any question of difficulty. On the face of the will, it is clearly a pecuniary legacy; and if it be to be turned into a specific legacy, it must be upon other circumstances. The form of the bequest is to give 3400l. in the three per cents. The testator has been definite in applying the quota of maintenance to each widow. On the face therefore of the will it is purely pecuniary, and extends only to a direction to buy such a sum in such a stock. But it is said, that although this may be so in the words, yet that circumstances may be given in evidence as to the state of the funds in his (f) See Lord Thurlow's observations upon this case, 2 Bro. C. C. 113.

(g) Ambl. 57.

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(h) 1 Bro. C. C, 565.