
    
      Thomas Garrett v. John W. Garrett et al.
    
    Columbia,
    ,Wovr' 1848.^
    Multifariousness is a good ground of demurrer to a bill in Equity; but if the defendant, at the heaving, waive the objection of multifariousness to any part of the bill, the demurrer as to that part will be overruled.
    The custom is to allow executors, or administrators, reasonable charges for the hire of auctioneers and clerks of their sales, as expenditures for the benefit of estates.
    Testatrix, in general terms, gave and bequeathed aU her property, tf-c., and the will contained no indication of an intention on her part, to detract from its ambulatory capacity — held that all the personal property, of which she died possessed, passed under the will, although a part of it only had been specified therein.
    The general rule is that testaments take effect, or, as it is sometimes expressed, speak, at the death of the testator, and are to be applied to his personal estate as it exists at that time. And this should be the construction in all doubtful cases.
    Where it can be pronounced, with confidence, that the testator meant to announce an intention confined to the state of affairs existing at the date of his will, either in reference to the specific subjects which he wished to pass under , it, or the persons to enjoy them, or truly intended in any other way to abridge the ambulatory capacity of the instrument, the construction must be such as to conform to the special intention thus indicated or expressed.
    Vide l Strob. Eq. 96.
    
      Before Caldwell, Ch. at Edgefield, June Sittings, 1848.
    Caldwell, Ch. This case comes up on exceptions, by ’ both parties, to the report of the Commissioner, and his report thereon.
    
      Plaintiff’s Exceptions.
    
    1st. The first exception was allowed by the Commissioner, and appears to be in conformity to the decree.
    2d. The second exception is, “ because the Commissioner has erroneously charged the payments, made to his solicitors by Thomas Garrett, for professional services in these cases, and for counsel and advice touching his administration of' the estate of John C. Garrett, to, and deducted them from, the estate of Elizabeth Garrett, deceased; whereas it is submitted that the said payments should have been charged to and deducted from the estate of John C. Garrett.”
    The difficulty of deciding on this exception, arises from the report not specifying what services were rendered by counsel to the executor of John C. Garrett, as no exception has been definitely made to the amount. When the party litigates for himself, under the character of executor, he cannot charge the estate with the fee. But it would seem that some fee, in a case like the present, ought to be allowed the executor for the estate generally, but the evidence and the report do not show what it ought to be. I must, therefore, recommit the report for further evidence to illustrate the point.
    3d. The third exception is allowed by the Commissioner.
    4th. The fourth exception is, “ because the Commissioner erred in deciding that the notes on C. J. Garrett, Polly Hammond, Robert J. Merriwether, and the account on Wm. Garrett, bearing date subsequent to the date of the will of testatrix, (and amounting, with interest, as stated by the report, to $1053 73,) were intestate property, and adding that amount to her supposed intestate estate for distribution ; whereas it is submitted that the said notes and the account on Wm. Garrett, do pass under and by said will, and the amount thereof should have been set down and charged in said report as testate property, and distributed among the legatees of Elizabeth Garrett.”
    The terms of the will define the property given — “ my notes of hand, amounting, at this tune, (date of will 9th March, 1843,) to two thousand six hundred and fifteen dollars ; judgments, at the Court of Edgefield, amounting to $370; cash, at present, (including part of my crop of cotton,) amounting to $540, all of which property, I give and bequeath in the following manner,” &c. What notes these were must be a matter of parol proof; no schedule of them, at the time of making the will, has been proved; but it would seem that only such notes as were found in her possession at her death, bearing date before the date of the will, ought to he considered as embraced within it, but those dated afterwards ■could not be claimed as bequeathed by it. The character of such a legacy is specific, and if the note, or bond, or judgment, be not designated either by time, place or other circumstances, it will be difficult to find any rule by which it can be considered as specific: I cannot, therefore, from the evidence, even presume that the notes dated after the will were renewals of those designed to be bequeathed by the will, and as the aggregate of notes specified in the will exceeds the amount of $2615, I think the Commissioner has properly refused to allow these notes. The account on William Garrett, clearly, does not come within either the letter or spirit of the will.
    A. A. 1789.
    5th. The fifth exception is, “because the Commissioner erred in deciding that all the personal chattels of Elizabeth Garrett, except the specific articles mentioned in the will and stated in the report, were intestate property — the chief articles of which were the crops of cotton, corn, and other provisions, farming utensils and household furniture, as appears by the inventory and sale bill, and the gross amount of the sales thereof is set down in the report at $3431,11 : whereas it is submitted that the whole of the said property passed under and was bequeathed by the general terms used in said will, and the amount of the sales thereof, ($3431,11,) should have been added to the testate estate of Elizabeth Garrett, and distributed among her legatees accordingly. The report should- also have stated the nature and kind of property which is set down and charged as intestate.” This question has already been virtually decided by the Court, and cannot be reconsidered here ; the only way to reach it would be by a bill of review, or on a bill for a re-hearing. This exception is overruled. These views dispose of the sixth exception, which only presents the question of the construction of the will in a more general form, as to other property of Elizabeth Garrett, (which the Commissioner considered intestate,) than the fourth and fifth exceptions presented it.
    
      Defendant’s Exceptions.
    
    1st. That the Commissioner has erred in allowing the executor, Thomas Garrett, commissions for paying out his own share. The Commissioner overrules this exception, on the ground that “ it is immaterial and will not vary the effect.” It may be so, but the principle is settled by the express terms of the Act, that no executor or administrator, who may be creditors of any testator or intestate, to whom any sum of money or other estate, may be bequeathed, shall be entitled to any commissions for paying or retaining to themselves any such debts or legacies ; this exception must be sustained.
    2d. That the Commissioner has erred in allowing said executor, as expenses of administration, his payments to the auctioneer $10, to the clerk of the sales $20, to the Ordinary, after bill filed, $ , and to his counsel in these suits $250. Part of this exception has already been disposed of. On inquiring into the practice of the Ordinaries, in passing upon the accounts of executors and administrators, 1 find great discrepancy as to the allowance of the two charges of auctioneer and clerk. If there had been any settled and uniform practice throughout the country, it might raise a presumption that such was the construction given by those who passed the Act of 1789. Whatever the executor or administrator can do in performing the duties of the office, another ought not to be paid to do, nor should he be allowed to employ others to do it for him, and charge the estate with services. The Act only allows executors or administrators 2\ per cent, for receiving, and 2^ per cent, for paying away in credits, debts, legacies, or otherwise, for their care, trouble and attendance in the execution of their several duties. I have understood that these charges have heen heretofore considered and decided upon, but I have not been able to find such decision either in the reports or manuscripts. The English cases can furnish no light on the subject, as in that country executors or administrators receive no compensation for their services, and are therefore allowed to charge expenses incurred in travelling, employing bailiffs to collect debts, &c., which have been refused to be allowed here. There is a class of services which the executor or administrator cannot render, and which the estate he manages must frequently require, and of course the estate must pay the expense, such as counsel fees, copies of certified papers, overseers wages, <fcc.; these are exceptions to the general rule; but the services of the clerk, and (probably) of an auctioneer, do not come within the reason of the exceptions, although the charges for the services of the latter have been allowed by some Ordinaries in adjusting the accounts of administrators and executors, on the ground that these services enhance the value of the estate sold. When there is any doubt, I am inclined to disallow such charges, and to give a strict construction to the statute; as compensation for extraordinary services is provided by it, and if the executor or administrator renders them, he can resort to his remedy at law. The exception as to these two charges is sustained, but as to the Ordinary’s fees is overruled. The question as to the counsel fees, (notwithstanding they come within the exceptions to the rule,) in relation to which there is no evidence, must be remitted for further proof.
    Thuríng v. Winthrop, ex-charieston 1847. ’
    3rd. That the Commissioner has erred in regard to the cash on hand at the death of Elizabeth Garrett, $924 75, and notes for $ of principal, and judgments for $ principal, as passing by the will, whereas no cash, or at most $540, and' notes and judgments, to the amount only of $370, did so pass.
    By the terms of the will, the testatrix disposed of only $540 in cash; whether the identical cash then on hand was continued in her possession till her death, there has been no evidence to establish; but as she left a larger sum, it may be fairly presumed that the $540 were kept by her, and added to, until it accumulated to $924 75 at her death ; but I cannot perceive how the accumulated amount of $384 75, which was not in esse at the execution of the will, and was not intended to be embraced in it, can pass under it. The words are “ cash at present,” (including part of my crop of potton;) but had they been “cash in future” or “ cash at my death” -■-such words "would have warranted a different construction, and have been sufficient to carry the whole amount found on hand. It would be dangerous to extend the construction to this article, when a different construction is applied to all others. Suppose she had converted the whole of her personal property, not enumerated in the will, into cash, would it pass under such a will % I am of opinion the amount stated in the will must govern, and the exception must be sustained as to the balance of the cash ($384 75.) As to the judgments and notes, that were in existence at the date of the will, they would seem to pass under it, and it would be too stringent a construction of the will, to restrict the notes and judgments to the exact amount, when the things, tho subject matter of the specific legacy, were bequeathed, and not the exact sum ; in this respect they materially.jdiffer from the cash at present, about the amount of which there could be no dispute.
    The specifying the amounts of the notes and judgments was unnecessary, and may be considered as being mere matter of description, of such an immaterial character as not to invalidate the specific bequests, and ought no more to deprive the legatees of the notes and judgments that the evidence brings within the terms of the will, than an incorrect estimate of the number of acres of a tract of land, whose boundaries were well defined, would defeat the owner from recovering under a valid devise or deed. The part of the exception relating to the notes and judgments is overruled.
    _ As to the issue relating to the tract of land, claimed exclusively by the heirs of Robert Garrett, ordered to be tried at law, the verdict appears to have been well warranted by the evidence, and I have heard no sufficient ground to set it aside.
    Here this part of the case would have ended, but the plaintiff Thomas Garrett, filed an amended bill, (after the trial of the issue at law,) to which the defendant demurred. These proceedings bring up new and important questions not heretofore prosecuted by the pleadings. The amended bill states that there is a mistake of fact, in the statement of his original bill, filed 18th November, 1843, that plaintiff’s father was seized of the tract of land of 440 acres, whereon Robert Garrett, in his lifetime, resided; that in reality the said tract was owned in fee by Henry Ware in his lifetime, and at the date of his death—that the said Henry Ware was the father of plaintiff’s mother, the said Elizabeth Garrett, and the said Henry Ware, on the 9th J.anuary, 1801, duly made and published his last will and testament, bearing date the day and year last aforesaid, and afterwards died, leaving the same of force and unrevoked ; and that in and by the third clause of' that will, he devises the said tract of land to plaintiff’s mother in fee; which said will was duly admitted to probate in common form before the Ordinary of the said District, on the 14th January, 1814, a copy of which is filed with the amended bill and marked Y. That immediately on the death of the said Henry Ware, the plaintiff’s father, in right of his wife, and by virtue of the said devise, entered upon and took possession of the said tract of land, and that afterwards the said Robert Garrett, under the circumstances and about the period stated in the original bill, came into the possession of the said tract of land, by the permission and as the mere tenant of the plaintiff’s father; that the character of the said Robert Garret’s possession of the said trace of land continued unchanged until his death, although he, in common with the plaintiff and the other members of the family, may have erroneously supposed that the said tract of land was held in fee by the plaintiff’s father, and upon his death passed under his will, or descended to his heirs ; yet the plaintiff avers, that the said Robert Garrett, in his lifetime, never claimed the land as his sole property, or pretended that his possession thereof was adverse to the rights of his mother or brothers, as he and they únderstood them to be. That since the death of the said Robert Garrett, the defendants John W. Garrett and John A. Houston and his wife Amy, claimed that the said Robert Garrett died seized of the said land, in severalty and in fee, have received among them all the issues and profits thereof that have since accrued, and the said John W. Garrett is now in the possession of the same, the said Houston and wife having conveyed to him their supposed moiety of the same, as the plaintiff has been informed. The plaintiff states that he is advised that as respects the said tract of land, the said Elizabeth Garrett must be regarded as having died intestate, and that the same is distributable between plaintiff' and the children of his two deceased brothers, Robert and Henry Garrett, who with him are the next of kin and heirs at law of the said defendant.
    The amended bill further states that plaintiff is seized in fee of a tract of land situate in the District aforesaid, bounded by lands of Wm. King, Margaret Jones, and others, containing 122¿ acres, more or less; whereof mention is made in the cross bill exhibited by the said J. W. Garrett and J. A. Houston and his wife Amy, against the plaintiff and the other parties to this suit, upon the trust, however, that he shall hold one moiety thereof for his own use in fee, and the other moiety for the use of the children of his brother Henry Garrett, in fee, to be equally divided among them, share and share alike; that the last mentioned tract of land consists almost entirely Qf WOodland, and that the plaintiff is desirous that a partition thereof should be made between himself and his cotenants, anci jg pel'Suacle¿ that the interests of all concerned will be thereby promoted. The amended bill prays that the defendants may answer, and that the tract of 440 acres may be adjudged to be parcel of the real estate whereof the said Elizabeth Garrett, the plaintiff’s mother, died seized in fee, and may be ordered to be divided among her heirs at law, according to their respective rights, and that John W. Garrett and John A. Houston and' his wife Amy, may be ordered to account with plaintiff for the issues and profits thereof accrued since the death of Elizabeth Garrett, and pay to him such sums of money as shall appear to be of right due and owing to him in this behalf; and that the tract of 122^ acres may be divided between the plaintiff and the children of Henry Garrett, so that each may have specifically his or her portion thereof, or its pecuniary equivalent, to be enjoyed in severalty; and general relief. To this amended bill the defendants demurred, for the following causes :
    1st. That it appears by the said bill, that the same is exhibited by the said plaintiff against these defendants and Su-sanah Garrett, Richard M. Johnson and others, as defendants thereto, for several distinct matters and causes; in some of which these defendants are no way interested, by means whereof these defendants are put to unnecessary charges and expenses.
    2d. That it appears by the said bill that the same is exhibited by the plaintiff against these defendants and others, for partition of the estate of Elizabeth Garrett, and account for the mesne profits of a portion thereof, said to be in possession of defendants, or one of them; whereas the original bill before such' amendment was for partition and account of the real estate oí John C. Garrett, deceased; by means whereof the said bill is inconsistent and multifarious.
    3rd. That it appears by said bill exhibited as aforesaid, that the defendants, or one of them, claim the tract of land which is the subject matter of controversy, absolutely and exclusively, and yet these defendants are required by said bill to disclose their title to said land, and this Court is besought to try such title, by means whereof, these defendants are to be deprived of their freehold without trial by jury or the law of the land.
    The plaintiff has encountered an obstacle in his amended bill that it will be difficult to overcome. Multifariousness is a good ground of demurrer, and I cannot see how he can get around the objection; neither the same parties are interested in all the subject matters of the amended bill, nor are the subject matters at all connected with each other, directly or indirectly. Where there is no connecting link that binds both parties and subject matter, the objection is fatal. The plaintiff had an interest in the partition of both tracts of land, if his claims be supported; but the heirs of Robert Garrett have no interest in the tract of 122J acres, and how can they with propriety be made parties to its partition ? They set up an exclusive and adverse interest in the tract of 440 acres, as to which the issue was ordered. In addition to this, the allegation now is that the latter tract is intestate property of Elizabeth Garrett, which would be the proper subject of partition by a separate bill, and has no connexion with the distribution of her estate under her will, or as connected with her husband’s estate. The litigation of other questions between the parties cannot properly draw in the discussion of the rights of the heirs of Elizabeth Garrett, to this tract of land, in the original case, and must be left where it was found, the subject for another suit, as the defendants object. It is ordered and decreed that the demurrer be sustained.
    ELIZABETH GARRETT’S WILL.
    In the name of God, Amen. I, Elizabeth Garrett, of the State of South Carolina and district of Edgefield, being of sound mind and memory, and reflecting on the uncertainty of life, do make, appoint, constitute and ordain this my last will and testament, in form and manner following, (to wit:) first, my will and desire is that all my property, consisting of one tract of land containing two hundred and sixty-nine acres, bought of G. A McKie and Thomas McKie, three ne-groes, Clara and her child Richard and Mariah, six Mules, two Waggons, &c., should be exposed to public sale by my executors hereafter named; my notes of hand, amounting at this time to two thousand six-hundred and fifteen dollars; judgments at the Court of Edgefield, amounting to three hundred and seventy dollars ; cash at present (induing part of my crop of cotton,) amounting to five hundred and forty dollars ; all of which property I give and bequeath in the manner following, (to wit:) first, I give and. bequeath to my grand-son John W. Garrett, five dollars, to him and his heirs: secondly, I give and bequeath to John A. Houston and his wife Amy, five dollars, to them and their heirs: thirdly, I give and bequeath to my son Thomas Garrett, one half of the residue or remainder of my estate, to him and his lawful heirs : fourthly, I give and bequeath unto my son Thomas Garrett, one-seventh part of the remaining half, in trust, for the benefit, use, and behoof of Richard M. Johnson’s wife Elizabeth and her heirs : I give and bequeath my sou Thos. Garrett one other seventh part as aforesaid, in trust for the use and benefit of the wife and children of my grandson John C. Garrett: sixthly, I give and bequeath one-seventh part 0f the remaining half of my estate as aforesaid to Henry an¿ jjjg wjfe Maiy ■ the remaining four-sevenths of one half of my estate aforesaid, I give and bequeath to my four f0n0Wjag named grand-children, (to wit:) Sarah Ann Garrett, Caroline T. Garrett, Susannah Garrett and Martha Garrett, each one-seventh part, to them and their heirs: lastly, I do hereby nominate, constitute and appoint my son Thomas Garrett, executor to this my last Will and testament, to carry the same into effect, hereby revoking all other Will or Wills heretofore by me made.
    In witness whereof I have hereunto set my hand and seal, this the 9th day of March, in the year of our Lord, one thousand eight hundred and forty-three.
    Elizabeth Garrett, [l. s.]
    
    Signed, sealed and acknowledged ? in the presence of us, $
    Wm. Garrett,
    Wm. G. Hammond,
    S. Broadwateíi.
    The plaintiff moved the Court of Appeals to reverse, in part, the circuit decree pronounced at June Term, 1848, upon the grounds:
    1. So much of the plaintiff’s 4th exception as relates to the notes of C. J. Garrett, Polly Hammond and R. Merri-wether ought to have been sustained, as the general terms of the will “my notes of hand,” are sufficiently comprehensive to embrace the said notes, though made subsequently to the date of the will.
    2. The plaintiff’s 5th exception should have been sustained, as ail the articles of property therein mentioned, were clearly within the contemplation of the testatrix, and as the words of her will sufficiently manifest her intention to dispose of the same.
    3. It is respectfully submitted, that the matters embraced in the 5th exception of the plaintiff have not been adjudged in t..is case, as the only question respecting the construction of Elizabeth Garrett’s will, heretofore suggested by the pleadings or considered by the Court, was whether her portion of her husband’s intestate estate was disposed of by her will.
    4th. The defendants’ 3d exception ought to have been over-ruled, so far as the same relates to the sums paid by the plaintiff to the clerk and auctioneer, at the sales made by him as executor; such charges being reasonable and customary, and the services of such persons being generally beneficial, upon such occasions, to the estates of the deceased.
    5. It is submitted that the decree is erroneous in sustaining so much of the defendant’s 3d exception as relates to the surplus of cash on hand, ($384 75,) at the death of the testatrix over and above the amount on hand at the date of her will, ($540 :) And the plaintiff will endeavor to maintain, that ail the cash had by the testatrix at the time of her death was effectually bequeathed, and that the mention made in the will of the amount of money in hand at its execution, was intended merely to indicate how her cash account then stood, and not to limit the bequest to that particular sum.
    5. The demurrer to the bill of amendment, filed since the trial of the issue at law, ought to have been over-ruled, as the defendants at the hearing distinctly waived the objection of multifariousness in respect to so much of the bill as relates to the tract of land of 122 acres, and as the joinder of the matter in the bill of amendment relating to the tract of land of 440 acres, with the matter of the original bill, can breed no confusion, occasion no inconvenience, and subject the defendants to no hardship, all the parties having an interest, and in the same relative proportions, in the matters contained in both bills.
    Carroll, defendant’s solicitor.
    The defendants John W. Garrett and John A. Houston and wife, also appealed from the decree of the Chancellor, on the ground:
    That there was no proof that the notes and cash on hand of Mrs. Elizabeth Garrett, returned by the executor, were in existence at the date of the execution of her will; and that at most, not more than the amount of notes and cash mentioned in her will, passed by her will.
    Wardlaw, defendant’s solicitor.
   JohnstoN, Ch..

delivered the opinion of the Court.

A majority of my brethren concur with the Chancellor, in so much of his decree as sustains the demurrer to the amended or supplementary bill; except that, in their opinion, it should have been limited to the tract of 440 acres. In relation to that tract, they conceive the demurrer was well taken ; and they deem it unnecessary to add any thing to the observations of the Chancellor. On this point, 1 have not been able to concur with my brethren : but cheerfully obey their instruction to announce their opinion, as the opinion of the Court.

With respect to the tract of 122 acres, the Court is of opinion that, under the agreement of the parties, the demurrer should not have been sustained ; but that a writ of partition should have been awarded ; and it is so ordered.

2. The Court sustains the plaintiff’s fourth ground of appeal, relating to the sums paid for the hire of the clerk and auctioneer. The custom is to allow such charges, as expenditures for the benefit of the estate. It is not expected that executors and administrators are to perform such services; and the expenditure is allowed upon the same princi-pie as overseer’s wages. Few trustees are qualified to act as .auctioneers; and a clerk not only performs a useful part in the sale, but in his recollection and in his memorandums are secured valuable and accurate testimony for the estate, in .relation to the contracts made at the sale. It is not suggested .that the sums paid to these agents were, in this instance, ¡unreasonable: and this inquiry being spared, the Court has no hesitation in allowing them upon general principles.

¡1 Strob. .E/96, ’

:Id. 98.

Id -93.

The remaining questions, in the case, relate to the crops, provisions, farming utensils, household furniture, notes of hand, judgments, and cash on hand, at the death of the testatrix, Elixabeth Garrett.

3. In relation to the crops &c., covered by the plaintiff’s ;5th exception, the Chancellor was very naturally led into error by the terms in which the Court delivered its opinion in this case, upon a former occasion. Certainly, the Chancellor on that occasion, did insist very strongly upon the •terms of the will, as evidencing an intention in the testatrix •to make a limited disposition. But the question before Him shews that the object of his observations was to establish a point wholly foreign to the inquiry embraced in the exception now under consideration. • The question then presented was thus stated by the Chancellor. “On the part of those interested under Mrs. Garrett’s will, it was contended, that in addition to the direct benefit which she derived under her husband’s will, she was entitled to one third of his entire real and personal estate (except the negroes) absolutely, as he had made no ultimate disposition of it: And that this interest in her husband’s estate passed, by the true construction of her will, to Thomas Garrett and the children of his deceased brother, Henry W. Garrett.”

The single question presented, was whether Mrs. Garrett intended to dispose of a distinct body of property, which she regarded as her estate, apart from another body of property, in which she may have been interested, but still considered .as her husband’s estate. The Chancellor dwells on her enumeration and description, wholly inapplicable to the latter, but strictly applicable to the former, as evidence that her testament was intended to be confined to the former.. He insists that she could not have forgotten the latter; and therefore her omission of it could not be set down to the account of a defective enumeration, but to a studied silence proceeding from a total indisposition to dispose of it. This intention pervaded the whole will. The residuary clauses were residuary clauses relating to a specific body of property, and net sweeping clauses extending to other property in •which she might have an interest.

3 jvtcC. R1492.-4 Id. 4-1-.

j jarman on wills, Ch. i.

The questions now presented are wholly different'

The opinion of the Court is that her will intended to dis-^ pose of the whole of the property which she considered as belonging to her: “all my property.”

The supposed defect in the enumeration of the property, to which the 5th exception refers, is not a defect which goes to the disposing provisions of the will, but to an act of administration to be porformed as preliminary to t-Tie disposition or distribution of the estate. It is apparent from a perusal of this inartificial and ungrammatical instrument, that the testatrix contemplated her property as consisting.of’ two general classes, one of which required to be sold for convenience- of distribution, while the other required no such process.. Now “all her property,” of both classes, she intended to- dispose of; and it was only in the direction for a sale of the tangible property, in order to prepare it for distribution*, that the enumeration is defective. We cannot suppose this deficiency in the mere detail, is evidence of want of purpose as to the end or object to which the detail tended.

4. The Court is of opinion, that all the notes of hand, and cash, existing at the death of the testatrix, passed under her will.

Wills of personal property, like wills of real estate, are actually nothing more than the declaration of the testator’s intention as it exists at their date, and as it arises from, a contemplation of the state and condition of his property at that time. But there' is a material difference between the two, in-this ;- that wills of realty are essentially conveyances (though-revocable,) and therefore can operate on no lands not then belonging to the testator ;• Whereas wills of personalty, are not only revocable, but as a- general rule, ambulatory, and will operate upon after-acquired property answering to the terms of the instrument, provided it be in the testator’s hand's at his death.

The general rule, then, is that testaments take effect, or as it is sometimes expressed, speak,, at the death of the testator, and are to be applied to his personal estate, as it exists at that time. And this should be the construction in all doubtful cases.

Where we can pronounce with confidence that the testator meant t'o announce an intention confined to the state of affairs existing a-t the date of his will, either in reference to the specific subjects which he wished to pass under it, of the persons to enjoy then'i, or truly intended in any other way to abridge the ambulatory capacity of the instrument :■ the construction must be such as to conform to the special intention thus indicated or expressed.

Thus if he refer to a sp >cific thing, as the subject of disposition, or to a class of things, with an intent to individual-jze them, and make them the specific instruments of his intended bounty; or to a specific person, or a carefully described class of persons, with an evident design of constituting them the beneficiaries; we cannot go out of the terms of the will, without the hazard of defeating or departing from his intentions.

But if no such special intention appear in the will, the general rule obliges us to regard it as ambulatory from the time it was written till it became actually operative by the testator’s death.

In the case before us the only question is whether the testatrix, in the gift of her notes of hand and cash, referred to their present amount, with the intention of individualizing them, so that none other should pass, or whether this reference was a merely immaterial suggestion, the intention being, that her notes and cash should pass, irrespective of their present value or amount.

There are circumstances which persuade' us that the intention was not to limit the bequest to the securities and money then on hand. One is that to which I have already alluded. The testatrix intended to dispose of all her property ; from which we may infer an amplitude of intention in relation to the different classes of property mentioned in the will. Having mentioned notes and cash we are to presume that she did not intend any of them to remain undisposed of. Another circumstance is that there is no general residuary clause; from which we may presume that in her conception her legacies went to the full extent of her estate. The third circumstance is the phraseology of the clause itself. In speaking of the present amount of the notes and cash which she gave, does not the testatrix imply that at another time the legacies might be of a differnet amount ? If she had this meaning, it follows that she intended the bequest to be of a fluctuating, and not of a fixed character ; in other words she did not intend to detract from the ambulatory capacity of her' will. Our opinion is, that the testatrix intended to give her notes and cash, whatever there might be of them; and that her allusion to their amount was. an immaterial suggestion not intended to affect the bequest.

It is ordered that the decree be modified according to this opinion.

Dunkin', Ch. and Darg-an, Ci-i. concurred.

Caldwell, Ch. concurred so far as relates to the demurrer.

Decree modified.  