Dryden v. Owings

Robinson, J.,

delivered the opinion of the Court.

The controversy, in this case arises upon the following bequest in the will of the late C. W. H. Owings, Esq. : “ I give and bequeath to Virginia M. Owings $8000 in State of Missouri Bonds.”

The testator, at the time of the execution of his will, and at the time of his death, had in his possession stocks and public securities amounting to nearly $90,000, among *364 which were eight State of Missouri Bonds, of the value of eight thousand dollars. One year after the death of the testator, his executrix delivered to the legatee $8000 in State of Missouri bonds, but the appellee claims that the bequest is a specific legacy, and that she is therefore entitled to the interest on said bonds from the testator’s death.

Were this a case of first impression, taking into consideration the fact that at the time of the execution of the will the testator had in his possession eight Missouri State bonds of the value of $1000 each, and the further fact that the will was made but a short time before his death, I should not hesitate to say he meant to give to the legatee these identical bonds, and that the legacy must, therefore, he considered specific. But the majority of the Court are of a different opinion, and I must admit that the decided cases fully sustain that opinion.

In determining this, as well as all other questions involving the construction of a will, it is admitted that the intention of the testator must prevail; but inasmuch as specific legatees are not liable to contribution in case of a deficiency of assets, and inasmuch as the legacy fails entirely if the testator parts with the property or thing specifically bequeathed, Courts lean against construing a legacy to be specific, and have gone so far as to say that in no case ought a will to be so construed, unless the language imperatively requires it. And accordingly we find Lord Eldon saying that according to well settled rules of construction, he was obliged to decide a legacy to be general, although according to his private opinion, the testator meant it to be specific.

We deem it unnecessary to examine in detail Purse vs. Snaplin, 1 Atkyns, 414; Bronsdon vs. Winter, Ambler, 57; Avelyn vs. Ward , Vesey, Sr., 424; Sibley vs. Perry, 7 Vesey, Jr., 522; Webster vs. Hale, 8 Vesey, Jr., 410; *365 Gillaume vs. Adderly, 15 Vesey, Jr., 383; Robinson vs. Addison, 2 Beavan, 515; Innes vs. Johnson, 4 Vesey, Jr., and other cases cited in argument. Nor shall we attempt the more difficult task of reconciling conflicting decisions. The general rule to be deduced from them is that in a bequest generally of stocks, or a sum of money in stocks, without further explanation, and without more particularly referring to or marking the corpus of the identical stock, the fact that the testator possessed such stock at the time of the execution of the will is not sufficient to justify the Court in declaring the legacy to be specific.

Thus in Robinson vs. Addison, 2 Beavan, 515, where the testator had fifteen and a half of Leeds and Liverpool Canal shares, and bequeathed five and a half shares in the Leeds and Liverpool Canal to A, and five to B, and five to C, it was held that inasmuch as there was no reference in the will showing an intention to give the particular shares which the testator had in his possession at the time, the legacy must be construed as general, and not specific. According, then, to well settled rules of construction, in order to constitute a specific legacy, it is necessary for the testator to distinguish or identify the stock or thing given by saying stock now in my possession, or now standing in my name, or some other equivalent expression, marking the corpus of the stock bequeathed, and showing the testator meant that identical stock, and no other should pass to the legatee.

Now, in this case, there is a general bequest of $8000 in Missouri State bonds, but there is no explanation or further expression or reference showing the testator meant to give to the legatee the identical bonds in his possession. So tested by the general rules of construction recognized and adopted by the adjudged cases, we are obliged to say the bequest to the appellee is not a specific legacy. The judgment must, therefore, be reversed, but inasmuch as *366 the plaintiff is not entitled to interest on the legacy until a year after the death of the testator, a new trial will not be awarded.

(Decided 28th June, 1878.)

Judgment reversed.