
    Samuel Gilbreath and Wife v. George Alban and William Kennon, Executors of John Winter.
    
      “ I give and bequeath to my wife, Mary, all the amount of moneys and interest that may be recovered of and from Dr. Kirker, for the purchase of the Penrose estate, to her and her assigns,” is a specific legacy, and the receipt of the money by the testator is an ademption of it.
    This is a bill in chancery from the county of Belmont.
    The object of the suit is to compel the respondents, as the executors of John Winter, to account for and pay to the complainants a certain legacy, to which they, in right of the wife, claim to be entitled nnder the will.
    The material clause of the will, under which the claim of the wife, as legatee, arises, is 'in these words : “I also give and bequeath to my said wife, Mary, all the amount of moneys and interest that may be recovered of and from Dr. Kirker, for the sums due me on the purchase of the Penrose estate, to her and her assigns.” The bill further states, that this money, so due from Dr. Kirker, was afterward received by the testator, in his lifetime, amounting to $1,298.08. The respondents demurred to the bill.
    J. Wier, for the plaintiffs:
    It is now well settled both in England and in the United States, that where a pecuniary or demonstrative legacy is given, and a particular fund, stock, or other security is pointed out in the will to satisfy it, there, although the fund fails, or the stock or other security is changed, called in, or fails, such legacy is to be made good 65] out of the general assets. Walton v. Walton, 7 *Johns. Ch. 262; Coleman v. Coleman, 2 Ves. 639; Husbands v. Husbands, 1 Vern. 95; Earl of Thomond v. Earl of Suffolk, 1 P. Wms. 461; Purse v. Snaplin, 1 Atk. 415 ; Orm v. Smith, 2 Vern. 681; 1 Bro. C. 565; Roberts v. Pocock, 4 Ves. 150 ; Wilson v. Brownsmith, 9 Ves. 180; Deano v. Test, 9 Ves. 146 ; Lambert v. Lambert, 11 Ves. 607; Sibley v. Perry, 7 Ves. 529; Guillaume v. Adderly, 15 Ves. 383, 389; Le Grice v. Finch, 3 Merivale, 49; Brondson v. Winter, Ambler, 57; Ashburner v. McGuire, 2 Bro. C. 114, and authorities there cited; Simmons v. Valance, 4 Bro. C. 345 ; Smith v. Fitzgerald, 3 Ves. & Bea. 2. The principle of ademption is, that the thing given does not exist at the death of the testator. Fryer v. Morris, 9 Ves. 363; Barker v. Rayner, 5 Mad. 217; Sel wood v. Mildmay, 3 Ves. 310. The intention of the testator is the true criterion, that is, did he intend to revoke the gift or not? Coleman v. Coleman, 2 Ves. 639; Graves v. Hughes, 4 Mad. 381; Walton v. Walton, 7 Johns. Ch. 264. A specific legacy is a bequest of a particular chattel specifically described, and distinguished from all other things of the same kind. Purse v. Snaplin, 1 Atk. 417. Or it may be something of a particular species which the executor may satisfy by delivering something of the same kind, as a horse, or an ox. Hinton v. Pinke, 1 P. Wms. 540; Mann v. Mann, 1 Johns. Ch. 231; Hotham v. Sutton, 15 Ves. 319. The inclination of the court is always against holding legacies to be specific. Webster v. Hale, 8 Ves. 412; Deane v. Test, 9 Ves. 152; Lambert v. Lambert, 11 Ves. 607; Chaworth v. Beach, 4 Ves. 566; Innes v. Johnson, 4 Ves. 573; Sibley v. Perry, 7 Ves. 527; Kirby v. Potter, 4 Ves. 748, 752. The intention of the testator may be collected from collateral matters to which the will has any relation. 3 Stark. Ev. 1013; Cole v. Robinson, 1 Stalk. 234; Shelton v. Shelton, 1 Wash. 53; Baldwin v. Karan, Cowp. 312; Jones v. Morgan, cited, in Lytton v. Lytton, 4 Bro. C. C. 441; Deane v. Test, 9 Ves. 152; Fryer v. Morris, 9 Ves. 360; Brice v. Smith, 3 Willes; Compton v. Compton, 9 East, 272 ; Thellusson v. Woodford, 4 Ves. 329; Milner v. Slater, 8 Ves. 306; Radclife v. Buckley, 10 Ves. *195, 197. And it is the duty of a court to [66 make all the parts of a will consistent with each other. Haws v. Haws, 3 Atk. 524; Pickering v. Stamford, 2 Ves. 279; Green v. Armstead, Hob. 65; Bridgewater v. Bolton, 6 Mod. 112; Radnor v. Shafto, 11 Ves. 457; 1 Bro. 529; Robinson v. Robinson, 1 Burr. 38; Barn. Ch. 261; Blandford v. Dymock, 4 Term, 82; Minshull v. Minshull, 1 Atk. 415. Unless by express provision in the will, neither expenses, debts, nor legacies can be charged upon real estate, except in the event of a deficiency of the personal estate. Lupton v. Lupton, 2 Johns. Ch. 614; Wright v. Dean, 10 Wheat. 229. In relation to interest, the rule of law is, that if no time is mentioned in the will for the payment of general legacies, interest begins to accrue from the end of a year after the testator’s death. Webster v. Hale, 8 Ves. 410 ; Maxwell v. Westenhall, 2 P. Wms. 26. But if the legacy is charged upon real estate, it will carry interest from the death of the testator. Maxwell v. Westenhall, 2 P. Wms. 26; Spurway v. Glynn, 2 Ves. 483; Shirt v. Westby, 16 Ves. 393; Smell v. Dee, 2 Salk. 415. Executors are held as trustees for the residuary legatees. Ripley v. Waterworth, 7 Ves. 424; Pickering v. Stamford, 2 Ves. 279; 3 Atk. 527; Lincoln v. Newcastle, 12 Ves. 227; Amb. 91. It is a rule of construction, that where the terms used in a will are those of recommendation or expressing a desire, if the objects with regard to whom such expressions are used are certain, the words are considered as imperative, and create a trust. Pierson v. Garnet, 2 Bro. C. 38; Paul v. Crompton, 8 Ves. 379 ; Brown v. Higgs, 8 Ves. 573; Dashwood v. Peyton, 18 Ves. 39. Courts of equity regard with favor a provision in favor of a wife or daughter. Selwood v. Mildmay, 3 Ves. 309; Gillaume v. Adderley, 15 Ves. 389.
    
      C. C. Carroll, for the defendants:
    To show that the legacy is specific, he cited Fryer v. Morris, 9 Ves. 360; Innes v. Johnson, 4 Ves. 568; Ashburner v. McGuire, 2 Bro. C. 108; Chaworth v. Beck, 4 Ves. 555; Gillaume v. Adderley, 67] 15 Ves. 384; Solwood v. Mildmay, 3 Ves. *306; Orm v. Smith, 2 Vern. 681; Blackstone v. Blackstone, 3 Watts, 335; White v. Winchester, 6 Pick. 55; Drinkwator v. Falconer, 3 Ves. 623; Jeffreys v. Jeffreys; 3 Atk. 120; Eider v. Wager, 2 P. Wms. 328; Stout v-Hart, 2 Halst. N. J; 414; Cuthbert v. Cuthbort, 3 Yates, 486; Walton v. Walton, 7 Johns. Ch. 258; Hinton v. Peake, 1 P. Wms. 540; Abney v. Miller, 2 Atk. 598: Flanders v. Clark, 3 Atk. 510; Smith v. Fitzgerald, 3 Ves. & Beam. 5; Purse v. Snaplin, 1 Atk. 414; Kirby v. Potter, 4 Ves. 748; Wilson v. Brownsmith, 9 Ves. 180; Webster v-. .Hale, 8 Ves. 410; Deane v. Test, 9 Ves. 145; Sibley v. Perry, 7 Ves. 522; Boberts v. Pocock, 4 Ves. 150; Lawson v. Stich, 1 Atk. 507; Peterborough v. Mortlock, 1 Bro. C. 565; Coleman V. Coleman, 2 Ves. 639. Tthe question, whether a legacy is or is not specific, is to be determined from the face of the will, exclusive of all extrinsic testimony. Innes v. Johnson, 4 Ves. 573; Sibley v. Perry, 7 Ves. 527; Deane v. Test, 9 Ves. 153 ; Strode v. Bussell, 2 Vern. 624; Barton v. Cooke, 5 Ves. 463; Ulrich v. Litchfield, 2 Atk. 374; Hay v. Coventry, 3 Term, 85; Ram on Wills, 107, 108, 141; Addington v. Addington, 7 Serg. & Bawle, 111.
    He further insisted that the' legacy is adeemed. That at the death of the testator, there being no money to be recovered from Kirker, and the specific bequest having been disposed of by the testator, the legacy is gone. Walton v. Walton, 7 Johns. Ch. 262; Fryer v. Morris, 7 Ves. 363; Abner v. Miller, 2 Atk. 598; Patterson v. Patterson, 6 Eng. Cond. Ch. 474; Blackstone v. Blackstone, 3 Watts, 338; Selwood v. Mildmay, 3 Ves. 106; Ward on Legacies, 268; Ram on Assets, 122; Hinton v. Pinke, 1 P. Wms. 540.
    Kennon, on the same side,
    cited these additional authorities: Toller’s Law of Executors, 302, 303; Heath v. Perry, 3 Atk 103 ; 2 Mad. Ch. Pr. 89, n.; 2 Cox, 180.
   Wood, J.

The question raised by the pleadings is, whether the 68] legacy in controversy is specific or demonstrative? If *the former, the receipt of the money, in his lifetime, by the testator, is an ademption of it, and the bill can not be sustained. If, on the other hand, the legacy is demonstrative or pecuniary, it is not adeemed, and the demurrer must be overruled.

In the investigation of this case, we have been very much aided by the industry of counsel in collating the authorities, and derived no small light from the manner in which they have presented their views. The distinction which marks the specific from the demonstrative legacy is frequently nice and difficult, but it is the oft-repeated language of the books that courts lean against the former, and it is with regret the chancellor declares he finds the intention of the testator establishes a specific legacy. It is the intention of the testator, however, which is to be sought for, in the construction of a will, and when clearly ascertained, it asserts the character of the devise. So it is declared by Chancellor Kent, in Walton v. Walton, 7 Johns. Ch. 264, and by Lord Loughborough, in Coleman v. Coleman, 2 Ves. 639; and unless there is an ambiguitas latens, that intention must be gathered from the face of the will.

“I also give and bequeath to my wife, Mary, all the amount of moneys and interest that may be recovered of and from Dr. Kirker, for the purchase of the Penrose estate, to her and her assigns.” The testator does not give an amount of money to his wife, and refer to the amount due to ascertain the quantity; but the language is, all the amount of moneys and interest, etc., that may be recovered of and from Dr. Kirker. This language, in its ordinary acceptation, would seem to bestow this specific debt, and if nothing should be recovered, it could hardly be successfully claimed that the amount due from Dr. Kirker should be paid to the legatee out of the general assets of the estate.

In 2 Bro. C. 108, the interest of a bond for life to B., and the principal, on her decease, to C., was held a specific legacy. In 4 Ves. 555, £800, the amount of banker’s note, and in 2 P. Wms. 328, the residue, deducting £500 of the money owing to him by Sir H. M., were likewise adjudged to be specific legacies, *and [69 the receipt of the money by the testators an ademption thereof. These cases are cited, by Chancellor Kent, with approbation, in Walton v. Walton, 7 Johns. Ch. 264.

In principle, those cases are not distinguishable, in our opinion, from the one at bar, and we may say with the master of the rolls, in 4 Yes. 568, that we are sorry to be under the necessity, after very full consideration, to declare, and we do so with great anxiety to hold otherwise, that this .legacy is, likewise, specific and not pecuniary.”

The demurrer is sustained, and the bill must be dismissed, with costs.

Bill dismissed.  