
    George H. Humphrey, as Executor, etc., Resp’t, v. Mary A. Robinson, Resp’t, and Asa F. Robinson et al, App’lts.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed April 12, 1889.)
    
    1. Will—Specific legacy—Construction.
    A testator, by his will, devised as follows: “First. I give and bequeath to my beloved wife, Mary A. Robinson, the sum of $50,000, the same to be paid to her by my executors * * * immediately after my decease, in manner following, that is to say, by the transfer to her of my stock in the ÜST. Y. C. and H.R. R. Co., at its par value, as far as the same will go for that purpose, and the residue in cash; and I also give and bequeath to her all of my household furniture and pictures; also, a certain bond and mortgage, bearing date April 1, 1881, * * * to secure the payment of $30,000, which said legacies are tobe received and accepted by my said wife in full, lieu, discharge and satisfaction of her dower * * *. Andido hereby direct my executors, in the event that there should be for any reason any delay in paying to her the amount hereby bequeathed, to pay to her for her support and maintenance the sum of $250 monthly, until such legacies shall be paid to her as aforesaid." Before the testator’s death, the $30,000 bond and mortgage was paid and discharged, and he had also disposed of all his stock in the railroad company. Had, that the meaning and effect of the language in the will was to give and bequeath the bond and mortgage specifically to the legatee.
    2. Same—Specific legacy defined.
    A specific legacy is a bequest of a particular thing or money specified, and distinguished from all other money of the same kind, the title of which would vest in the legatee on the death of the testator, with the as-» sent of the executors. It differs from a general or pecuniary legacy, in that if the thing, security or money bequeathed is lost, paid or destroyed in the lifetime of the testator, the legatee will not be entitled to any recompense or satisfaction out of his personal estate.
    3. Same—Intention must govern—How ascertained.
    In all cases the intention of the testator is to prevail, and his purpose is to be derived from a consideration of all the material provisions of the will to be construed, and of the extrinsic circumstances respecting the situation of the testator’s family and estate at the time of making the will.
    
      
      4. Same—What necessary to make legacy specific.
    It is an uniform rule that to make a legacy specific it is necessary that it should appear that it was the clear purpose of the testator to make it such, otherwise it will be held to be pecuniary or demonstrative.
    Appeal from a judgment entered upon the report of a referee. The plaintiff is the executor of the last will and testament of Benjamin P. Robinson, and this action is prosecuted for the purpose of securing a judicial construction of the same. The defendant, Mary A. Robinson, is a widow of the testator and a legatee named in the will, and the other defendants, who are the appellants, are the residuary legatees. The clause of the will as to the meaning of which the plaintiff entertained doubts, is the first, and is as follows:
    ‘ ‘ First. I give and bequeath to my beloved wife, Mary A. Robinson, the sum of fifty thousand dollars ($50,000), the same to be paid to her by my executors hereinafter named, immediately after my decease, in manner following, that is to say, by the transfer to her of my stock in the New York Central and Hudson River Railroad Company at its par value, as far as the same will go for that purpose, and the residue in cash; and I also give and bequeath to her all of my household furniture and pictures; also a certain bond and mortgage bearing date April 1, 188JL, executed to me by Rufus A. Sibley and Alexander M. Lindsley, to secure the payment of thirty thousand dollars, which said legacies are to be received and accepted by my said wife in full lieu, discharge and satisfaction of her dower interest, and of any and every other claim which she may have in or to my real estate. And I do hereby direct my executors in the event that there should be for any reason, any delay in paying to her the amount hereby bequeathed, to pay to her for her support and maintenance the sum of two hundred and fifty dollars monthly, until such legacies shall be paid to her as aforesaid.”
    The testator had no children, either at the time of making his will or at the time of his death. At the time of the execution of the will he possessed real estate which he, in one of the clauses of the will, estimated at the value of $30,000, which before his death he had alienated, and at the time of his death he was not seized of any real estate. Before the testator’s death, the $30,000 bond and mortgage mentioned and described in the first item of the will, and therein bequeathed to his wife, the defendant, Mary A. Robinson, was fully paid to him and by him discharged. Before his death the testator had disposed of all his stock in the New York Central and Hudson River Railroad Com pony. His personal estate was of the value of $112,605, as estimated by the referee, including the household furniture and pictures, which were of the value of $2,000.
    The referee found and determined, as a matter of fact, that it was the intention of the testator, in executing his will, that the full sum of $80,000 should be secured to his wife, Mary A. Robinson, in addition to the household furniture and pictures, and the reference in the first clause of the will to the New York Central Railroad stock, and the mortgage made by Sibley and Lindsley, was for the purpose of indicating the fund which he desired to be appropriated for that purpose, and held as conclusions of law that the legacy of $30,000 to his wife was a pecuniary or demonstrative legacy, and not specific, and that the same was not addeemed by the payment of the bond and mortgage and the discharge of the same of record by the testator, and that she was entitled to receive from the plaintiff, as executor, the full sum of $30,000 out of the general assets of his estate, in addition to the $50,000 mentioned, the said mortgage having been paid up in full.
    The will bears date the lTth day of January, 1883, and the testator died on the 15th day of March, 1881. The bond and mortgage referred to was dated the 1st day of April, 1881, and was payable in four equal annual installments after the 1st day of April, 1886, and the testator received payment in full, in discharge of the mortgage, on the 11th day of November, 1884. The payment was received by draft for the sum of $30,000, made payable to the order of, and indorsed by, the testator. When he died, the testator was 52 years old, and his wife was then — years of age.
    
      Garlock & Beach, for app’lts; Henry W. Conkling, for app’lt, William J. Badger; Parker & Drake, for pl'ff and resp’t; Sutherland C. Shuart, for the widow and resp’t, Mary A. Robinson.
   Barker, P. J.

The learned referee held that by thé first clause of the will the testator intended to give to his wife the sum of $30,000, being the amount of a bond and mortgage therein referred to, and then owned by him, in addition to the other legacies mentioned in the same clause of the will; that such bequest was not a gift of the debt or obligation secured by the mortgage, but of a specific sum of money equal in amount to the debt to be realized out of the bond and mortgage, which was designatéd as the source from which the funds were to be realized for its payment.

If such was the. intention of the testator then the payment of the bond and mortgage in his life-time was not an ademption or revocation of the legacy and the legatee may demand its payment from the executor out of the general assets belonging to his estate.

The residuary legatees dispute the correctness of the construction given to the will by the referee, and claim that it defeats the purpose of the testator, which was, as they contend, to give and bequeath to his wife the bond and mortgage as a separate and distinct item of his personal estate as it existed at the time of the making of his will, and nothing more.

If this construction expresses the intention of the testator, the legacy was specific, and the payment and satisfaction of the debt in his life-time was an ademption of the legacy. A specific legacy is a bequest of a particular thing or money specified and distinguished from all other property of the same kind, the title of which would vest in the legatee on the death of the testator, with the assent of the executors. It differs from a general or pecuniary legacy in this respect, that if the thing, security or money bequeathed is lost, paid or destoyed in the life-time of the testator, the legatee will not be entitled to any recompense or satisfaction out of his personal estate; whereas, a general legacy is to be paid, out of the assets of the testator when converted into money, if the same is sufficient for that purpose, and in the order prescribed in the will. 1 Roper on Legacies, Chap. 3, § 1, p. 192.

In brief the question presented is, was this a general or specific legacy within the sense and meaning of those terms as used by courts and commentors. In discussing the subject, in all cases the intention of the testator is to prevail, and his purpose is to be derived from a consideration of all the material provisions of the will to be construed, and of the extrinsic circumstances respecting the situation of the testator’s family and estate, at the time of making of the will, which may be fairly brought to bear upon the question of intent. Pierrepont v.‘ Edwards, 25 N. Y., 128; Davis v. Crandall, 101 id., 311; 1 N. Y. State Rep., 64.

The general rules of construction applicable to this class of cases are substantially the same as those which prevail in all other cases, where the intention of the testator is left in doubt in consequence of the language used by him in expressing his purpose. Inasmuch, however, as the legacy if specific, is lost, in case the subject of it is disposed of by the testator, or is extinguished by payment or otherwise, in his lifetime, it was said by Selden, Justice, in Giddings v. Seward (16 N. Y., 365), that, “Courts proceeding upon the presumption that the testator intended a real benefit to the legatee, incline to consider legacies general rather than specific, where the language of the bequest will admit of that construction.” These observations were repeated by the court in Tifft v. Porter (8 N. Y., 521), with some additional remaks made by Johnson, J., viz.: “That the presumptian is stronger that the testator intends some benefit to a. legatee, than he intends a benefit only upon the collateral condition that he shall remain, until death, owner of the property bequeathed. An intention of a benefit once expressed, to make its taking effect turn upon the contingency of the condition of the testator’s property being unchanged instead of upon the continuance of the" same feelings which in the first instance prompted the selection of the legatee, requires, as it ought, clear language to convey the intention. The rule as settled accords best with the dictates of experience as to the probable purposes which actuate men in disposing of their property by will.” In all cases bearing on the question whether the legacy is specific or general, the rule is stated with uniformity, that to make a legacy specific it is necessary that it should appear that it was the clear purpose of the testator to make it such, otherwise the legacy will be held to be pecuniary or demonstrative.

In seeking the intention of the testator in this case, we have not failed to keep in mind the canons of construction which we have before stated. The referee, in his opinion, which is printed with the papers, held in substance, and his decision rests upon the ground, that the bequest of the bond and mortgage belongs to that class of legacies commonly called demonstrative. Such legacies partake so far of the nature of specific legacies that the security referred to in the bequest, if in existence and belonging to the estate of the testator at the time of his death, is set apart as the primary fund for the payment of the legacy; and” if the same has been paid up or otherwise extinguished, the legacy is to be paid out of the assets of the testator’s estate as a general legacy.

To our minds it seems clear and certain that the meaning and effect of the language in the first clause of the will was to give and bequeath the bond and mortgage specifically to the legatee, and if the testator had remained the owner of the same up to the time of his death, the legatee could, as a matter of right, have demanded from the executor the transfer of the security to herself, whatever may have been its value at that time. We are unable to find in the remaining provisions of the first clause" of the will any provision or direction that fairly indicates an intention on the part of the testator to change or alter the effect or meaning of the words used in making the bequest of the bond and mortgage. They are in the nature of instructions by the testator to his executor, directing him and empowering him to pay the legatee $250 monthly, if for any reason there should be any delay on his part in paying over to her the pecuniary legacy in the form and manner as provided in the preceding clause of the will. The words used, ‘ ‘ in the event there should be for any reason any delay in paying to her the amount hereby bequeathed,” evidently refers to the pecuniary bequest of $50,000, for he had given and bequeathed to her that sum, “to be paid to her by his (my) executors immediately after his (my) decease.” The use of the plural of the word “legacy,” as it appears in the clause relative to making of the payment of $250 monthly, was evidently used by mistake, and if not, then the monthly payment would continue until the gift of the household furniture and pictures were actually transferred to the legatee, which could not have been the intention of the testator. The testator designed that his widow should realize the interest and income of the bequest of $50,000 immediately after his death ; and if for any cause the principal should not be paid over as directed, then in that event the executors were authorized to pay her the sum mentioned monthly, which is equal to the legal rate of interest on the sum bequeathed.

Wo think it proper to direct a new trial instead of modifying the judgment so as to conform to our views as to the proper construction to be placed upon the will, so that the widow may have an opportunity on the retrial to maintain, if she can, by proper proof the facts alleged in her answer, that when the bond and mortgage was paid up, the proceeds were transferred to her by the testator, to be held in her own right and as a part of her individual estate. The referee refused to pass upon this question, as by his construction of the will it became immaterial to determine ■ that issue.

We think it also proper to defer a decision upon the other questions until that issue is disposed of.

Hew trial granted before another referee, with costs to abide the final award of costs.

All concur.  