
    Wheeler and another, Ex’rs, vs. Hartshorn and others, imp.
    CONSTRUCTION of Will: Appeal. (1,2) Action to construe ivill; notice of appeal, on whom to be served. (3) Certain legacies held general and demonstrative. (4, 5) How such legacies payable. (6) Hoto a devise of a certain amount of testator's land to be executed.
    
    1. In an action hy an executor to obtain construction of a mil, where he merely sets out the will, or its doubtful clauses, states the adverse claims of the parties interested, and asks the court to determine the true construction, leaving the whole matter to be litigated by the parties interested (who are made defendants), the complaint is in the nature of a bill of interpleader; and notice of an appeal by a part of the defendants from a judgment of tho court construing the .will, should be served on the other defendants, interested adversely to the appellants.
    2. But where, all the legatees being made defendants, certain of thorn were interested adversely to the residuary legatees, and the executors, by their comjilaint, asked the court to give tlie will that construction which was most favorable to such residuary legatees, who did not exhibit any cross bill against their codefendants, or take any equivalent proceeding tendering to them an issue on the construction of the will, but left the question to be litigated on the complaint and the answer of such codefendants, and the latter appealed from the judgment: Held, that service of notice of appeal upon the executors was sufficient.
    3. A testator owning 3,700 acres of land in P. and S. counties in this state, with other real estate, and also U. S. bonds, railroad mortgage bonds, municipal bonds, notes secured by mortgage, and unsecured notes, etc., to the aggregate nominal value of over $100,000, but appraised at only $53,000,made the following: among other devises and bequests: to his nephew A. “ eight thousand dollars in bonds or notes secured by mortgage; also 400 acres of my land in P. or S. county;” to his nephew B. “eight thousand dollars in bonds or notes and mortgage securities, also 400 acres of my land in P. or S. county;” to his nieces C. and D. each “ the sum of four thousand dollars in bonds or notes secured by mortgage;” to E. “the sum of one thousand dollars in «ropón railroad bonds.” Reid,
    
    (1) That the legacies above described are not specific, but general, demonstrative legacies.
    (2) That in determining whether payment of such legacies is to be made at the par value of the securities, or at their market value, the intention of the testator is to govern; and as the will itself does not clearly express that intention, it is to be construed in the light of surrounding circumstances.
    (3) Whether the legacies are to be paid in those securities of the designated lands which came to the hands of the executors, it was not necessary to decide.
    4. The testator made ample provision for his widow and two brothers, besides making them his residuary legatees; he appears not to have left any other relatives nearer than nephews and nieces, and of the numerous legacies to these, far the largest are the ones above described. It appears that when he made his will he believed that Ms railroad bonds would always be at par. In the residuary clause' of the will was tliis provision: “Any property or money standing charged on my books against any of the aforementioned legatees, from and after tliis date, my executors will deduct from sums bequeathed them by tliis will.” Shortly before making the will, the testator told one of the executors that it would be very easy to comply with the requirements of bis will; that all the executors would have to do would be to hand over the different securities to the different parties. Held, in view of all the facts and circumstances, that it was the testator’s intention to bequeath to the several legatees the several sums named, in money or its equivalent; and if the securities designated in the will for that purpose are insufficient to pay them, the deficiency must be paid, with the other general legacies, out of the remaining estate of the testator.
    5. In the view here taken of the will, it is immaterial whether the legacies be jpaid in the designated securities, or whether the latter be sold by the executors, and the proceeds appilied in piaymont of the legacies.
    6. The court below adjudged that under the several devises of land above described, each devisee was entitled to the fee simple of the specified quantity of land in severalty, the same to be selected by the executors, and to be of the average quality and value of the testator’s lands in the two counties named. The devisees claimed that each of them was entitled to an undivided share of all the lands of which the testator died seized in said counties, the extent of such undivided interest being determined by the proportion which the number of acres devised to each bore to the whole of said lands. Held, that as the court will compel the executors to mahe a proper and just selection of the land, and will fully protect the devisees, its judgment is equivalent to assigning to each of them the undivided interest claimed, and will not, in that respect, be disturbed.
    APPEAL from the Circuit Court for Fond du Lao County.
    Action to obtain judicial construction of certain clauses in the will of the plaintiffs testator.
    In May, 1874, Eicbard Catlin, late of tbe county of Pond du Lac, died, leaving bis last will and testament, wbicb was duly admitted to probate by tbe proper court in July following. Tbe plaintiffs are named therein as executors, and bave duly qualified and entered upon tbe discharge of their duties as such.
    Tbe testator, at tbe time of bis decease, was tbe owner of thirty-seven hundred acres of land in Pierce and St. Croix counties in this state, together with other real estate; also of United States bonds, railroad mortgage bonds, municipal bonds, notes secured by mortgage, and unsecured notes against numerous persons, and of certain cash assets consisting of money or certificates of deposit and drafts. Tbe following is a statement of tbe nominal value, and also of tbe appraised value, of such securities, obligations and assets, rejecting fractions of a dollar:
    
      Nominal. Appraised at
    
    U. S. Bonds, - ’ - $3,000, $3,000
    City Bonds, 16,000, 1,500
    R. R. Bonds, 33,000, 7,730
    Notes secured by mortgage, 38,145, 30,000
    Unsecured notes and interest, 4,443, 4,443
    Cash assets, 6,856, 6,850
    Total, - - $101,444, $53,529
    
      Of the above city bonds, $10,000 were specifically bequeathed to the widow of the testator.
    Among devises or bequests in said will to all of the defendants respectively, are the following to the appellants:
    “ I give and bequeath to my nephew Horace P. Hartshorn, of Hamilton, N. Y., eight thousand dollars in bonds or notes secured by mortgage. Also five [four?] hundred acres of my land in Pierce or St. Croix county, of this state.
    “ I give and bequeath to my nephew Thomas G. Hartshorn, eight thousand dollars in bonds or notes and mortgaged security. Also four hundred acres of my land in Pierce or St. Croix county, Wis.
    
      “ I give and bequeath to my niece CaroH/ne P. Heeler, the sum of four thousand dollars in bonds or notes secured by mortgage.
    “ I give and bequeath to my niece Anna Poster, the sum of four thousand dollars in bonds or notes secured by mortgage.
    “ I give and bequeath to Miss IAmia 8. Hatch, daughter of F. H. Hatch, the sum of one thousand dollars in coupon railroad bonds.”
    The residuary clause of the will is as follows: “ The balance and residue of all my personal and real estate left after paying all the legacies as aforementioned, and all expenses, I give and bequeath, one-third to my wife, Phoebe Ellen Catlin, one-third to George Catlin, and one-third to Francis P. Catlin. Any property or money standing charged on my books against any of the aforenamed legatees, from and after this date, my executors will deduct from sums bequeathed them by this will.”
    The foregoing facts are stated in the complaint in this action, and are not controverted. The relief demanded is, that the court give construction to several clauses in the will, and among these, that the above devises and bequests to the appellants be construed as follows:
    “That the legacy to Horace P. Hartshorn, of eight thousand dollars in bonds or notes secured by mortgage, be adjudged a general legacy, payable in any bonds taken at their face, regardless of the actual or market value of said bonds, to be selected by the executors, or in notes secured by mortgage, at the discretion and selection of the executors.
    “ That the devise to said Horace P. Hartshorn, of four hundred acres of my land in Pierce or St. Croix county of this state,’ be adjudged specific, and may be satisfied with four hundred acres of said testator’s land situated in either of said counties, at the discretion and selection of the executors.
    “ That the legacy and devise to Thomas C. Hartshorn have a like construction, and the executors a like discretion and power of selection.
    “ That the bequest to Oan'olwie P. Heeler be adjudged a general legacy, and may be satisfied either in any bonds taken at their face, regardless of the actual or market value of said bonds, or in notes secured by mortgage, at the discretion and selection of the executors.
    “ That the bequest to Anna Foster have a like construction, and that the executors have a like discretion and power of selection.
    “ That the bequest to Miss Limia B. Hatch be adjudged a general legacy, payable in any coupon railroad bonds taken at their face, regardless of the actual or market value of said bonds, at the selection of the executors.”
    Several of the defendants (other than the appellants), interposed answers to the complaint of the executors, taking issue on certain averments in such complaint, but not on any averment therein affecting the appellants.
    The appellants joined in an answer, wherein they claimed that the bequests to them respectively of certain sums in bonds or notes secured by mortgage, and the like, were bequests of those sums absolutely, payable in the securities named at their actual value, and, in default of sufficient securities for that purpose, the balance payable in money. »
    
      The appellants Horace P, and Thomas C. Hartshorn, each, further claimed that he was entitled to a conveyance of an undivided interest, equivalent to the quantity of land devised to him, in all of the lands in Pierce and St. Croix counties of which the testator died seized.
    The will contains several other bequests 'of specific sums in bonds or other securities, and it is alleged in the appellant’s answer that the actual value of the securities named is sufficient to p'ay all such bequests, including those to the appellants. The court found, however, that the actual value thereof was insufficient for that purpose.
    The circuit court gave to the will the construction claimed by the executors in respect to the several bequests to the appellants, and adjudged in that behalf as follows:
    
      “ That the devise of four hundred acres of land in Pierce or St. Croix county to Horace P. Hartshorn, of Hamilton, N. Y., and also the devise of four hundred acres of land in Pierce or St. Croix county, "Wisconsin, to Thomas G. Harts-horn, entitles each of the defendants to a title in fee simple of four hundred acres of land of the lands of which the testator died seized in said two counties, of an average quality and value of all the lands of which the testator was so seized at his death in both said counties, to be selected by the executors plaintiff.
    “The bequest to Lvoia 8. Patch of one thousand dollars in coupon railroad, bonds, entitles her to that sum in bonds at the face value of said bonds, and not their money value; said bonds to be, as near as may be, of an average value of those railroad bonds owned by the testator at the time of his death, to be selected by the executors.
    “ The bequest of eight thousand dollars to Horace P. Harts-horn, in bonds or notes secured by mortgage, the bequest of eight thousand dollars to Thomas G. Hartshorn, in bonds or notes and mortgage security, the bequest of four thousand dollars in bonds or notes secured by mortgage, to Caroline P.
    
    
      
      Keeler, the bequest of four thousand dollars in bonds or notes secured by mortgage, to Anna Foster, entitles each, of the legatees so named, or their assigns, to the specific amounts to them or her specially bequeathed in bonds or mortgages, or bonds or notes secured by mortgages, of an average value of all the bonds and mortgages, or bonds and notes secured by mortgages, owned by the testator at the time of his death (except the five thousand dollar note and mortgage executed by O. J. Clark and Jehdiah Bowen and their wives, and bequeathed to Phoebe Ellen Gatlin), to be taken at their face value, to be selected by the executors.”
    
      Horace P. and Thomas C. Hartshorn, Caroline P. Keeler, Anna Foster and Lvoia S. Hatch appealed from the portions of the judgment above quoted.
    .Two briefs were filed for the appellants, one signed by Gil-let ds Hammond, and the other by James B. Doolittle, of counsel. A brief for the respondents was filed by Bwnals & Lane as their attorneys, and one by G. L. Catl-m as attorney for the residuary legatees. The cause was argued orally by Mr. Gillet and Air. Doolittle for the appellants, and by Mr. Ruñáis and E. S. Bragg for the respondents.
    The following points and authorities are taken from the brief of Gillet c& Hammond:
    
    The bequests to the appellants were all general legacies, of the kind known as demonstrative; because they are bequests of the several sums of money named, while they point out in each case a fund, or a class of securities or property, as the source from which the money is to be derived. Walton v. Walton, 7 Johns. Oh., 262; Willard’s Eq., 502; Malone v. Mooring, 40 Miss., 247; 2 Redfield on Wills, ch. 1, sec. 7; Filis v. Walker, Ambler, 309; Cartwright v. Cartwright, cited in 2 Bro. Oh., 114; Paget v. Hv/rst, 9 Jur., N. S., 906; MioTlims v. Smith, 8 Weekly Rep., and 1 Drewry & Sm:, 204; Sellon v. Watts, 9 Weekly Rep., 847. General legatees are entitled to priority over the residuary legatees under all circumstances and as to every portion of the estate. Molían v. Griffith, 3 Paige, 402; 2 Wins, on Ex’rs, 1223; 2 Redf., ch. 4, sec. 28, and ch. 1, sec. 7, pi. 18; Willard’s Eq., 504. Ademption does not apply to general or demonstrative legacies. 7 Johns. Ch., 262; Malone v. Mooring, supra. A change may be made in the thing given by procuring a like kind of thing, without ademption. Pattison v. Pattison, 1 Mylne & K., 12. Nor does ademption take place when the change is made by operation of law. Walton v. Walton, supra; 2 Redf., ch. 4, sec. 26, pi. 20; Peek v. MoQillis, 9 Barb., 35; Gilbreath v. Winter, 10 Ohio, 64; CogdelVs EPrs v. His Widow, 3 Desauss., 346, 384; Hansbrough’s JEsVrs v. Hooe, 12 Leigh, 316. 2. It was not the province of the executors to select the securities with which to pay the bequests. 2 Redf., 136, note 19, ch. 1, sec. 7, citing Jacgues v. Chambers, 2 Coll. C. C., 435.
    
      Mr. Doolittle, on the same side, argued, 1. That the testator could not have intended to make the amount and value of the legacies to the appellants depend upon the depreciation of railway bonds, because it is clear from the evidence that he believed such a depreciation impossible. See Roberts v. Pooock, 4 Yes., 156, 159. 2. That the will, by its express terms, after making ample, unconditional provision for the widow and the other persons who are also named as residuary legatees, provided that any dejoreciation of his estate wdiich might occur, should be borne by the residuary legatees. The language is: “ The balance and residue of all my personal and real estate left after payvng all the legacies as aforementioned and all expenses, I give and bequeath,” etc. The intention is clear. 3. That the legacies to the appellants were not specific. (1) If A. had agreed to deliver to B. $8,000 in bonds and notes secured by mortgage, can it be doubted that A. would be bound to deliver $8,000 worth of such bonds or notes, or that, in default of such delivery, B. could recover $8,000 in cash? (2) If this testator had converted all liis notes and "bonds into cash before Ms death, would that have adeemed these legacies, and given all the estate to the residuary legatees? This is the crucial test of a specific legacy. Willard’s Eq., 506. Legacies will not be treated as specific unless such is the clearly expressed intention of the testator. Walton v. Walton, 7 Johns. Oh., 263; "Willard’s Eq., 505. 4. That these legacies were of a fixed sum of money, with reference to a particular fund for payment; what are called by the civilians demonstrative legacies. Willard’s Eq., 502. In support of these views counsel further cited Ashburner v. Macgui/re, 2 Bro. O. 0., 108; Coleman v. Coleman, 2 Yes. Jr., 640; Chaworth v. Beeeh, 4 id., 556; Innes v. Johnson, id., 573; Kirby v. Potter, id., 750; Sibley v. Perry, 7 id., 524; Webster v. Hale, 8 id., 411; Deane v. Test, 9 id., 146; Gillaume v. Adderley, 15 id., 384; White v. Winchester, 6 Pick., 48; Foote v. Worthmgton, 22 id., 299; opinion of Johnson, J., in Tifft v. Porter, 4 Seld., 518, and the cases there cited; Pierrepont v. Edwards, 25 N. Y., 131; 2 Redfield on Wills, ch. 13, sec. 7.
    Eor the respondents it -was argued, in the brief of P%mals (& Lane, that a construction of the will which is impossible or extremely difficult of performance, should be rejected in favor of one which is possible and easily practicable. Bacon’s Max., 52; Potter’s Dwarris, 174; 19 N. Y., 348; 5 McLean, 178; Dev. Ct. of Claims R., 158; 10 Wheat., 210. With the exception of ten for $100 each, all the bonds are in sums of $500 or $1,000 each; so that if they are taken at their face, every legacy may be paid exactly with one or more of them; while if they are taken at their cash value, no number of them will exactly pay any legacy. And that value is forever changing, and may change even while you are making the computation ; while the par value is fixed. There would always be trouble, in any state of the market, in making payment of even thousands in bonds for $500 and $1,000 each, taken at their cash value; there could be none, in any state of the market, in paying at their face. All this was known to the testator. He had dealt in bonds for some time, had bought and sold at various prices, as shown by his books put in evidence; he then owned $85,000 in bonds, and knew that they were as likely to be at airy one of fifty figures as at par. Yet he said to one of his executors: “ It will be easy to comply with the terms of the will. All you will have to do will be to hand over the securities.” Could he have been thinking of handing them over at their cash value? So of the mortgages. There are seventeen bequests of this character, and not one can be paid exactly by any one or more of the mortgages at their appraised value. But these beq'uests are not made in money, but in the securities; and the denomination of the security, not its money value, is the measure of the legacy. .The testator must be presumed to have used language as it is- commonly used in speech and writing; If one should say he had bought, or sold, or lost, “ $10,000 in bonds,” no one would suppose that he had paid, received or lost that precise money value. Ve read in. a newspaper that the Northampton bank has been robbed, and .that “ $720,000 in bonds ” were taken by the robbers. Does any one suppose that this is the money value? If you promised to get $5,000 in government bonds for a friend, neither he nor any one else would suppose that you were to get Mm just $5,000 worth. So if one should promise to pay $5,000 in bonds and failed, he would be liable to pay only what bonds amounting on their face to that sum were worth in cash. 12 Ill., 184; 1 Bibb, 461; 3 Litt., 245; 3 Conn., 266; 1 Blackf., 296, 346; 7 Humph., 33; 8 Pet., 181. Moreover, the testator, in his book, entered all these bonds at their face; why should not he bequeath them in the same way? That they have not proved as valuable as he supposed they would, does not make his estate liable to make good the depreciation. In .strictness it is believed that these legacies could be paid in any bonds or mortgages of which the testator died possessed, or, perhaps, any which the executors chose to give. "Willard’s Eq., 502; 2 Eonbl. Eq., book 4, part 1, cb. 2, § 5, note (o); Forrest, 227; Ambler, 57; 1 Atk., 416. But tbe court lias given tbe appellants tbe benefit of tbe equitable provision of tbe civil law. Domat by Stracban. We give beed to tbe rules of tbe civil law, founded on solid reason and good sense, where not contrary to adjudications of acknowledged authority in our own law. 1 Bouv. Die., 277, § 10; 1 Story’s Eq., § 23; 1 Kent’s Com., §§ 515, 516; id., pp. 546, 547, note(f); 12 Mod., 482; 3 Black. Com., 436; 1 P. Wms., 12, 267; Oro. Eliz., 387; 2 Eonbl. Eq., b. 4, pt. 1, cb. 1, § 4; 3 Bedf. on Wills, 8, note.
    Tbe brief of Mr. Cailim, for tbe residuary legatees, admitted that tbe legacies in question were general, and not specific, within tbe distinction established in 1 Boper on Leg. (3d ed.), 170; AsKbvvrner v. M'acguire, 2 L. 0. in Eq., 229; and 3 Beav., 349; but denied that liability to ademption is a crucial test as to these two kinds of legacies. 2 Redfield on Wills, 462, citing Jacques v. Chambers, 2 Coll. O. O., 435. Counsel did not claim in this .case, however, that any portion of the legacies bad been adeemed; but denied that they were pecuniary and demonstrative; contending that two things are essential to a demonstrative legacy, viz., & particular fund, and proper words to indicate tbe intention of tbe testator to have a sum of money paid out of, or from the proceeds of, said fund. In support of these views counsel cited Wms. on Ex’rs, 995; LLwby v. Potter, 4 Veg., 75Q; Palliet’s Appeal, 14 Pa. St., 451; Tifft v. Porter, 4 Seld., 518; Pierrepont v. Edwards, 25 PT. Y., 128; Smith v. Lampion, 8 Dana, 69; and especially dimer’s Legatees v. dimer’s Executors, 42 Ala., 9, where tbe legacies were each of a specified number of dollars in confederate state bonds and in railroad bonds. Tbe legacies here being thus found to be general legacies of certain classes of securities, counsel contended that tbe question whether they were to be satisfied by tbe payment of such securities to tbe value of tbe several amounts bequeathed, or by delivery of securities to those amounts at their face value, is to be determined by the rule in relation to contracts, as intimated in the case last cited; and that the rule is settled in this state by the decision in Noonan v. Ilsley, 17 Wis., 314. See also a remark of Paiios, J\, in Starr v. Light, 22 Wis., 433. In a suit upon a promissory note payable in certain railroad scrip, the market value of the scrip is the measure of damages. Parhs v. Marshall, 10 Ind., 20. See also 'Williams v. Jones, 12 id., 561; Pierce v. Spader, 13 id., 458; Williams v. Sims, 22 Ala, 512; Marr v. Prather, 3 Met. (Ky.), 196; Thor-ington v. Smith, 8 Wall., 1; 1 Blackf., 296; dictum of Mr. Justice Oliffoed in Thompson v. Biggs, 5 Wall., 663; Sedgw. on Dam., 240. A bond payable in gold and silver is not satisfied by payment in legal tenders. Bronson v. Bodes 7 Wall., 229; Butler v. dlorwitz, id., 258. 2. The general rule is laid down in 2 Redfield on Wills, 136, E. 19, ch. 1, see. 7, that the legatee, and not the executor, shall have the selection. But in the foot note is this material qualification: “ But if the whole number is specifically bequeathed to different legatees in parcels, the selection must be made by the executor, or by a court of probate, or by appeal to a .court of equity. The rights of the legatees will be precisely egualP In the case at bar, a large amount of securities of the same class being bequeathed in'parcels to numerous legatees, and their rights being precisely equal, it would hardly be practicable to allow them to choose, under the general rule; and a competent court of equity jurisdiction, duly appealed to, has decreed the manner of distribution. Counsel further cited on this point, Civil Code of La., art. 1633; Poth. Domat Test., ch. 5, sec. 3, art. 1; 2 Domat, b. 4, tit. 2; 2 Parsons on Con., 171; Co. Litt., 145 a ; Smith v. Sanborn, 11 Johns., 59; Mc-Nitt v. Clark, 7 id., 465; Poth. Traite des Obi., E. 246. 3. In regard to the devise of “ four hundred acres of my land in Pierce or St. Croix county,” it is well settled that a devise of so many acres of land without description is a specific devise; 
      a fortiori, a devise of so many acres of my land, describing the county. 4. Counsel further argued that a depreciation in the value of the securities, not foreseen by the testator, can have no influence in the construction of the will (Roberts v. JPooooIb, 4 Yes., 156; Gilmer Will Case, 42 Ala., 9); and that the intention of the testator in this case sufficiently appears from the form of the legacy to Herbert J. Loud, “ one thous- and dollars in railroad stock or other bond; said iond maybe delivered to Hr. A. W. Hewett as trustee,” the legatee being a minor. The phraseology is the same as in the legacies here in question; yet it is perfectly clear that the testator intended this legacy to be satisfied by the delivery of a one thous- and dollar bond.
   Lyon, J.

I. When this cause was called for argument, it was made to appear that the notice of appeal had only been served on the plaintiffs and the clerk of the proper court, and not upon the residuary legatees, and in behalf of the latter the hearing of the cause was objected to, because they had not been served with such notice. The objection was overruled, ore terms, and the cause was argued at the bar by the counsel of the residuary legatees, with great learning and ability. It is now deemed proper to state briefly the grounds upon which such objection was overruled.

While an action brought by an executor to obtain construction of a will is not strictly an action of interpleader, yet it is ordinarily in the nature of an action in interpleader. 1 Red-field on Wills, 452 (ch. IX, § 36); 2 Story’s Eq. Jur., § 824. This is so when the executor merely sets out in his complaint the will, or the doubtful clauses thereof, states the adverse claims of the parties interested, and asks the court to determine the true construction of the will. In such a case the executor neither alleges nor seeks to establish any particular construction of the will, but leaves the whole -matter to be litigated by the parties interested (who stand upon the record as defendants), and to be adjudicated by tbe court. Such a complaint differs in no essential element from a bill of inter-pleader. But for tbe fact tbat tbe legal interest of tbe executor in tbe personalty disposed of by tbe will, and wbicb is the subject of tbe controversy, is something more than tbat of a mere stakeholder, such a complaint would be purely a complaint of interpleader. 2 Story’s Eq. Jur., § 807.

Tbe notice of appeal must be served on the adverse party. Laws of 1860, ch. 264, sec. 3 (Tay. Stats., 1632, § 3). Previous to tbe adoption of tbe code, it was provided by statute in New York, tbat on an appeal from tbe order or decree of a vice chancellor, notice of tbe appeal should be served upon tbe solicitor of tbe adverse party. 2 R. S. (N. Y.), 178, § 60. In Potter v. Baker, 4 Paige, 290, it was intimated tbat on an appeal by a defendant to a bill of interpleader, another defendant, interested in tbe subject matter of tbe suit adversely to tbe appellant, was “ tbe adverse party ” within tbe meaning of tbe statute, and entitled to be served with a notice of appeal. In Thompson v. Ellsworth, 1 Barb. Ch., 624, it was held tbat, under a similar statute and rule of court, tbe party whose interest in relation to tbe subject matter of tbe appeal is in conflict with tbe reversal of tbe order or decree appealed from, or tbe modification sought for by tbe appeal, is “ tbe adverse party.” Tbe same construction was given to tbe section of tbe New York code of wbicb our sec. 3, cb. 264, Laws of 1860, is a copy, in Cotes v. Carroll, 28 How. Pr., 436, and Hiscock v. Phelps, 2 Lans., 106, Tbe point decided in tbe latter case is thus stated in a bead note: “Every party to an action, whether as plaintiff or defendant, who has an interest in sustaining a judgment or determination appealed from, is an adverse party ’ within sec. 327 of tbe code, and, as such, is entitled to notice of appeal.”

But it should be observed tbat in every case in wbicb tbe defendant appellant has been required to serve notice of appeal upon a codefendant adversely interested, tbe plaintiff bad no interest in tbe questions involved in tbe appeal, and did not, in any manner, represent sucli codefendant. Snob would be tbe position of tbe respective parties to a pure bill of inter-pleader, or one in tbe nature of interpleader, where tbe plaintiff, having no interest in tbe controversy, merely states in bis bill the subject matter of the controversy, and tbe conflicting claims of tbe parties interested therein, and asks tbe court to require such parties to come in and litigate their rights to the end that tbe controversy may be judicially settled.

That tbe defendants, tbe residuary legatees in tbe present case, have an interest in sustaining tbe portion of tbe judgment appealed from, cannot be doubted. Hence, were this only an action in tbe nature of an action of interpleader, there is much authority for bolding that tbe residuary legatees should be served with notice of appeal. But this is something more than such an action. Instead of merely stating and asking tbe court to settle and determine the adverse claims under tbe will, tbe executors have constituted themselves tbe champions of tbe residuary legatees, and have asked tbe court to construe those clauses of the will in which tbe appellants have an interest, most favorably to such legatees. Tbe latter might have exhibited their cross bill against their codefend-ants, tbe appellants, or taken some equivalent proceeding tendering directly to tbe appellants an issue on tbe construction of those clauses of tbe will, to which tbe appellants might have interposed an answer or reply. Had they taken this course, tbe residuary legatees would, probably, have been entitled to service of-tbe notice of appeal.. But they have not done so. On the contrary, they have left tbe questions of construction in which tbe appellants are interested, to be litigated on tbe complaint of tbe executors and tbe answer of tbe appellants thereto. They have thereby accepted tbe championship of tbe executors, and have constituted tbe latter their representatives in that behalf; and able counsel appeared for tbe executors in this court, and vigorously maintained tbe cause of tbe residuary legatees against tbe appellants. Under these circumstances, we are of tbe opinion that tbe executors, and not tbe residuary legatees, constitute “tbe adverse party ” within the meaning of the statute of appeals, and that the latter are not entitled to be served with a notice of the appeal.

We have considered this question of practice, because it may become an important one in some future case. But probably it is of small • significance in the present case, for the reason* that, had we taken a different view of it, the appellants would, doubtless, have been permitted to perfect their appeal by making the proper service on the residuary legatees. Laws of 1860, ch. 261, see. IT.

II. The construction given by the court to those clauses of the will by which land in Pierce or St. Croix county is devised to Horace P. Hartshorn and Thomas Q. Hartshorn, two of the appellants, respectively, does not differ materially from the construction thereof claimed by the devisees. It will be remembered that each of the devisees claimed that he was entitled to a conveyance of an undivided interest, equivalent to the quantity of land devised to him, in all of the lands in Pierce and St. Croix counties of which the testator died seized; and that the court adjudged that each was entitled to the foe simple of the specified quantity of such lands, in severalty, the same to be selected by the executors, and to be of average quality and value. Had the court held that each devisee took an undivided interest under the will, as was claimed, and had the interest of each been set off to him, in severalty, by partition proceedings, the partition would have been made on precisely the same principles that the executors were directed to observe in selecting the lands which the devisees were to hold in severalty. N. S., ch. 142, sec. 26. Hence the judgment of the court in that behalf is equivalent to assigning to each devisee an undivided interest in the lands in question to the extent of the devise to him, and appointing the executors to make partition thereof.- Inasmuch as the court will compel tbe executors to make a proper and just selection of tbe land, and will fully protect tbe devisees, we see no just cause for comqdaint against tbe judgment in that behalf. Indeed it was not seriously urged in tbe argument that tbe construction given by tbe circuit court to these devises should be disturbed.

III. It is claimed on behalf of tbe appellants, and freely conceded by counsel for tbe residuary legatees, that tbe legacies to tbe appellants are not specific but general legacies. Tbe language of tbe will is, that three of these legacies are for the sums therein named, “ in bonds or notes secured by mortgage,” another “ in bonds or notes and mortgaged security,” and still another in coupon railroad bonds.” No specific bonds, notes, mortgages or coupon railroad bonds are named, in which payment may be made. Indeed, tbe executors are not restricted, in terms at least, to make such payment in tbe securities which the testator owned at tbe time of bis death, or previously thereto, although tbe circuit court held that these legacies were payable in securities of tbe designated kinds which came to the hands of the executors. In the view 'which we take of the case, it is unnecessary to review ■this decision.

The court further held that payment of the legacies should be made at the nominal or face value of the securities, and not at their actual or market value. This ruling involves considerable sums of money, as well as an important legal principle, and we must determine whether it is correct.

In this case, as in all other cases of the construction of wills, the intention of the testator, as expressed in the will, must govern; and if the will itself does not clearly express that intention, the instrument may be read in the light of the surrounding circumstances. It may be conceded that it is not entirely clear from the language of the bequests, standing alone, whether the testator intended that the designated securities should be turned over to the appellants in payment of their legacies, at the nominal, or at the actual value thereof. A bequest of a certain sum in notes, wben tbe testator bad several notes of various relative values, the face or nominal value of which exceeds the bequest, and their actual value falls short of it, may mean that the legatee is to have sufficient of such notes, estimated at their actual value, to pay the sum bequeathed; or it may mean that he is to take the same at their face. Probably neither construction would do violence to the language of the bequest. In such a case it would be necessary to consider the whole will, and such surrounding circumstances as would throw any light on the question, to ascertain the intention of the testator. And this we must do in the present case.

All of the legacies in controversy, amounting to twenty-five thousand dollars (except perhaps one thousand dollars), are to nephews and nieces of the testator. The testator left no children, or lineal descendants. lie made ample provision in his will for his widow and two brothers, besides making them his residuary legatees. It does not appear that he left any other relatives surviving him nearer than nephews and nieces. He left legacies to quite a number of these, other than the appellants, but by far the largest legacies of this class are to the appellants. This fact shows, that, among his nephews and nieces, the appellants were the objects of his peculiar regard. Moreover, it was proved on the trial, on behalf of the executors and residuary legatees, that the testator believed, when he made his will, that his railroad bonds would always be at par, indeed, that they were more valuable securities than government bonds; and he sold a large amount of the latter and invested the proceeds in railroad bonds, paying nearly par therefor. From these facts it may fairly be argued 'than the testator intended that the appellants should receive the sums named in the legacies, in any event; and hence, that if the legacies should be paid in the designated securities, such securities should be reckoned at their actual or market values.

There is a very significant provision in the residuary clause of tbe will, wbicb greatly strengthens the argument. It is this: “Any property or money standing charged on my books against any of the aforenamed legatees, from and after this date, my executors will deduct from sums bequeathed them by this will.” Now suppose that Horace P. Hartshorn had received property of the testator of the value of eight thousand dollars, which stood charged to him on the books of the testator at the decease of the latter, and for which the said Horace had never paid. Of course the bequest to Horace would, under the above provision in the will, pay the debt in full; while Thomas G. Hartshorn, to whom a legacy was given of the same sum, in substantially the same words, but who was not so fortunate as to become indebted to the testator, might be compelled to receive the amount of his legacy in greatly depreciated securities at their face. So far as it appears, the relations of the two nephews to the testator were alike, and it is evident from the will that he intended to provide for them alike. It seems unreasonable to believe that he intended, in any contingency, to give such an advantage to the nephew who might happen to be his debtor at his decease. It seems more reasonable to say that when he spoke of “sums bequeathed,” he intended sums of money or its equivalent.

It was proved on 'the trial, that about the time, but before he made his will, the testator told one of the executors that it would be very easy to comply with the requirements of the will; that all the executors would have to do would be to hand over the different securities to the different parties. It is claimed that this fact goes to prove that the testator intended the legacies should be paid in the designated securities at their face. It seems to us that the testator’s remark to the executor evidenced an intention to make specific bequests of the securities, an intention which we have seen was not carried out. Ye are quite unable to perceive how any inference can justly be drawn from the premises, that the testator intended bis legatees should take the securities at their face, without regard to their actual value, in payment of their legacies.

Noonan v. Ilsley, 17 Wis., 314, is cited and relied upon to sustain the judgment of the circuit court. The instrument sued upon was a due bill for three hundred dollars vn IFzter-town rail/road stock” and it was held that the contract would be fulfilled by delivering the stock of that company of the par or face value of three hundred dollars. A legacy in that form would be substantially a specific legacy. If the same rules of construction governed contracts and wills alike, the difference between that case and the one before us is measured by the difference between a specific and a general legacy. ITad the due bill in that case been for three hundred dollars in railroad stock, generally, without naming the company; or, being as it was, had the testator in the present case directed in what specific notes or bonds each legacy should be paid, the cases would be more nearly alike. The remarks of Mr. Justice PaiNe in Starr v. Light, 22 Wis., 433, so far as they are applicable to the question before us, evidently have reference to cases like that of Noonan v. Ilsley, supra.

After a patient examination of the authorities cited in the arguments of the respective counsel (a review of which in this opinion would serve no useful purpose), and after careful deliberation, we are impelled to the conclusion that the legacies to the appellants are not only general legacies, but demonstrative also, and hence, that if the securities designated in the will for that purpose are insufficient to pay them, the deficiency must be paid, with the other general legacies, .out of the remaining estate of the testator. In the view we have taken of this case, it is quite immaterial whether the legacies be paid in the designated securities, that is, by turning over the securities to thé legatees, or whether the same be sold by the executors and the proceeds applied in payment of the legacies.

It follows that those portions of the judgment appealed from, which construe the several bequests in the will to the appellants, must be reversed, and tbe cause remanded with directions to tbe circuit court to render judgment in accordance witb tbe foregoing opinion.

By the Cov/rt. — IX is so ordered.  