
    Charles Bell vs. Elizabeth Hughes, Adm’x.
    Testator bequeathed to his two daughters E. aud J. one thousand dollars to each, “to be paid in either money or negroes at their value,” and to his son W. two thousand dollars — “negroes Lewis, Jane, Buck, Daniel, Bob and Prime, to be divided, according to valuation, between E., J. and W., to answer to the amount above bequeathed:” — Eeld, that the legacies were pecuniary and not specific.
    In cases of doubt, Courts incline against construing legacies as specific.
    BEFORE EARLE, J., AT FAIRFIELD, SPRING- TERM, 1832.
    The report of his Honor, the presiding Judge, is as follows :
    “ Assumpsit on a promissory note.
    “The defence extended to part of the note only. Elizabeth Hughes, the widow and administratrix of William Hughes, deceased, was the daughter of John Bell, the plaintiff’s testator, and a legatee under his will. There had been a deficiency of assets, in the hands of the executors, to pay debts, and the legatees were called on to contribute. William Hughes having married Elizabeth, the legatee, first gave a bond conditioned to contribute his proportion, which was afterwards cancelled and this note given for a sum certain; intended, however, to meet only the amount for which he was legally bound to contribute. And it was contended for the defendant that the note was for too large an amount. This depended on the question whether the legacy to Elizabeth Hughes was pecuniary or specific, for that must determine how much William Hughes should contribute. It was admitted by counsel on both sides that if the legacy was pecuniary, the plaintiff should recover the whole note, but if it was specific then only a part.
    “ The clauses of the will of John Bell, deceased, connected with this question are as follows:
    “ ‘ To my daughter Elizabeth Hughes I give and bequeath one thousand dollars, to be paid in either money or negroes at their value.
    “ ‘ To my daughter Isabella Turner I give and bequeath, one thousand dollars, to be paid in either money or negroes at their value.
    “ ‘ To my son William I give and bequeath two thousand dollars; the property above mentioned is not to be removed until the first day of January next, (1820.)
    /“Negroes Lewis, Jane, Buck, Daniel, Job, Murphey, and a negro man named Prime to be divided according to valuation between Elizabeth Hughes, Isabella Turner and my son William to answer to the amount above bequeathed.’
    “ All the other legacies in the will were specific, except one of $500 to the widow.
    “ The executor assented to these legacies, also as specific, and delivered the negroes to the three legatees, between whom they were divided according to the proportions fixed.
    
      “ Had the construction depended upon the isolated clauses the legacies must have been held pecuniary, and that tbe executors had the option to pay the money or deliver the negroes. But taking all the clauses in connection, it is impossible, it seems to me, to construe them, and especially the last, in any other way than as specific. There seems to have been a clear and manifest intention to appropriate the negroes named, and no other negroes, as property to the three legatees. Those negroes were “to be divided between them to answer the amounts above bequeathed.” The executors could not have refused to deliver the negroes specified; if they had died the legacy was gone, for no other funds were provided for the payment of it, all the other property having been specifically bequeathed.
    “ I thought therefore that the legacy to Elizabeth Hughes, as well as those to Mrs. Turner and William Hughes, was specific and so ruled. The plaintiff recovered accordingly, allowing the abatement claimed by the defendant.”
    The plaintiff appealed on the ground:
    Because the presiding Judge decided and so directed the jury that the legacy to Elizabeth. Hughes was a specific legacy, when in fact it was a general or pecuniary legacy.
    Buchanan, for appellant.
    
      McQall, contra.
   The opinion of the Court was delivered by

Johnson, J.

The question is, whether the legacy of one thousand dollars to Elizabeth Hughes, is a general pecuniary legacy of so much money, or whether it is specific of the negroes directed to be divided.between herself, Isabella Turner and William Bell, in payment of their legacies. This question, like all others arising upon the construction of a will, must be resolved by the intention of the testator, to be collected from the will itself; and if we take that as our guide, there will be but little difficulty in arriving at a correct conclusion, without the aid of technical rules. In the direct bequest, the legacy is confessedly general and pecuniary, and it must strike the mind at once as very extraordinary, that the testator should intend to substitute a specific thing (the negroes) in its place, when a direct bequest of the negroes would have superseded it altogether. But when in the clause, directing the division of the negroes amongst them, he directs that they shall be divided according to valuation, to answer the amount above bequeathed to these legatees, can there be any rational doubt that he intended to set apart these negroes as a fund for the payment of these legacies, and not to give the negroes directly ? I doubt whether our language furnishes terms which would more clearly express the idea. . But Courts, in cases of doubt, incline against construing legacies as specific. In Potter vs. Kerby, 4 Ves., 572, it is said to be a rule of construction, that no legacy is to be held specific unless it is demonstrable that it was so intended; and if I have not already demonstrated that this legacy is general and not specific it is at least self-evident that the converse is not demonstrated. The very learned, full, and well digested written argument furnished by the counsel in support of the motion, has opened a very wide field on the subject; but I cannot persuade myself that it is necessary to follow him in all its ramifications; for it does not appear to me that the case admits of any doubt. Motion granted.

Harper, and O’Nball, JJ., concurred.

Motion granted.  