
    In the Matter of the Final Judicial Settlement of the Account of Proceedings of Lester Getman, Executor, etc., of Adelia Getman, Deceased, Respondent. Central Presbyterian Church of Mayfield, N. Y., Appellant.
    Third Department,
    November 11, 1908.
    Will — when legacy specific — identification of subject-matter — evidence — burden of showing that specific bequest became general.
    A bequest of a specific sum bequeathed to a testatrix by her brother is a specific legacy of that particular fund only, if it was definable and traceable at the time of the making of the will. But it will be treated as a general legacy if the fund was not then in such form as to be traced and identified.
    Where a legacy is specific, it is presumed that the subject thereof could be identified at the time the will was made, and a beneficiary claiming that the legacy is general is under the burden of showing facts then existing that made it so. Kellogg, J., dissented.
    Appeal by the Central Presbyterian Church of Mayfield, N. Y., from a decree of the Surrogate’s Court of the county of Fulton, entered in said Surrogate’s Court on the 28th day of December, 1907, settling the accounts of the executor of th.e will of Adelia Getman, deceased, and overruling the objections of the appellant.
    
      Jeremiah Wood, for the appellant.
    
      William C. Mills, for the respondent.
   Smith, P. J.:

This controversy arises over the construction of the 6th clause of the will of Adelia Getman. That clause reads as follows: “ Sixth. I give and bequeath to Mrs. Eliza Pool of Gloversville, N. Y., the use of the $500 bequeathed to me by my brother Tan Rensselaer Getman of Bowling Green, Ohio, and I direct my executor hereinafter named to safely, invest the said $500 on good and approved security, and to pay over to the said Eliza Pool all of the interest and income therefrom annually for the rest of her natural life. After her death, I give and bequeath the said sum of Five hundred dollars to the Presbyterian Church of the Tillage of Mayfield, Fulton County, N..Y. * * The will was made upon July 27, 1893, and the testatrix died in August, 1906. The legacy of $500 given to hei: by her brother Van Rensselaer Getman was received somewhere from three to seven years prior to the. making of the will. There is no evidence showing whether or not those moneys were separate and distinguishable at the time of the making of the will. There is evidence showing that after the making of the will the deceased had a long sickness, during which she expended large sums of money and borrowed from a brother certain moneys which were owing to him at her death. And there is evidence that she stated during the last years of her life that she had expended in her sickness all she got from Van Rensselaer Getman, and that she had used all of that legacy for sickness expenses. She stated to a niece that she had used the money all up. There is- further evidence to the effect that none of the property which was- left by the decedent represented any moneys given to her by her brother Van Rensselaer Getman. The life beneficiary of this $500 fund died before the death of the testatrix.

It will not be questioned that if this be a specific legacy it lias been adeemed by the expenditure of the moneys prior to the death of the testatrix. The contention of the appellant, however, is that the legacy is not specific, but is a general legacy, and that the intention of the testatrix was manifest to give a general legacy to the church to the extent of the moneys received in the legacy from her brother, Van Rensselaer Getmah.

The legacy, clearly, is in form specific. It refers to a certain fund. If that fund were definable and traceable at the time of the making of- the will, it can hardly be questioned that to that fund, and to that fund only, the legacy would apply. If, however, the proof sliowéd that these moneys were not in such distinct form that they could be traced and identified at the time of the making of the will, then the only reasonable interpretation of the will would be that it was intended as a general legacy given in honor of her brother, and to the amount of the moneys received from him. Furthermore, in my judg'ment, inasmuch as the legacy was in form specific, the presumption must hold that the subject thereof was in such form that it could be identified at the time of the making of the will, and the bnrden of proof lies with the legatee to show that a legacy specific in form was in fact a general legacy,-by-rea-, son of the facts existing at the time of the making Of the will. This presumption as to the possibility of the identification of the moneys at the time of the making of the will would seem to be strengthened by her declarations thereafter made that those moneys had all been expended in her sickness. For those reasons we think the decree of the surrogate is right and should be affirmed, with costs.

All concurred, except Kellogg, J., dissenting.

Decree of the surrogate affirmed, with costs. .  