Myers' Executors v. Myers , 33 Ala. 85 ( 1858 )

"WALKER, J

.—It is a clear and undisputed proposition of this case, that the appellee was entitled to the recovery which she obtained in the court below, if the legacy of twenty negroes to her in the will of her deceased husband was specific. If an executor derives profit by the labor or hiring of slaves specifically bequeathed, he is responsible to the legatee for their reasonable hire, unless the slaves are required in the general administration of the estate. The principle is, that “ specific legacies are considered as severed from the bulk of the testator’s property, by the operation of the will, from the death of the testator, and specifically appropriated, with their increase and emolument, to the benefit of the legatee, from that period.” If profit accrue to an estate by reason of the detention of specific legacies after they are due, it is a reasonable and just rule which gives such profit to the legatee; and, upon principle, it can make no difference, whether that profit consists of the interest upon stocks or the labor of slaves.—Keyes on Chattels, §§ 499, 500, 518, 519; 2 Wms. on Ex. 1221; 2 Lomax on Ex. (top 265,) marg. 152; 2 Roper on Leg. 1250.

[2.] The controverted question of the case is, whether the legacy is specific. The legacy to Mrs. Myers is of twenty negroes, of average value of all those on the testator’s plantation, for her life, with a remainder over. This bequest is followed by another, bequeathing the rest and residue” of the testator’s “ negro slaves ” to his descendants. From these provisions of the will it is a necessary deduction, that the legacy to Mrs. Myers was a bequest, not of a definite number of negroes, to be supplied from any source; but of twenty of the testator’s negroes, of the average value of all those on his plantation. Is it, thus understood, a specific legacy? Is a gift of twenty of the identical negroes possessed by the testator, which are of average value of all his slaves, a specific legacy ?

There are three different classes into which legacies are divided; those classes are' denominated specific, demonstrative, and general, and each is distinguished from the other in the incidents which the law attaches to them respectively. A specific legacy is “ the bequest of a particular thing or money, specified and distinguished from "all others of the same kind.” A demonstrative legacy is where the thing or money is not specified, and distinguished from all others of the same kind, but a particular fund is pointed out for its payment. A general legacy is one of quantity merely, and includes all cases not embraced in the two other classes. A specific legacy cannot be satisfied out of the general assets, nor will it abate with them. The reverse is true of general legacies. Demonstrative legacies differ from both, in this: that, unlike specific legacies, they may be satisfied out of the general assets, upon failure of the particular fund; and, unlike general legacies, they will not abate upon the failure of the general assets, but retain the right of satisfaction out of the particular fund. They are derived from the civil law, and take their name from the supposition, that they indicate the testator’s intention to demonstrate the source of pay-me '4, and not to make the existence of the fund charged wd'h ilie oayment a condition of the legacy.—Boper on Leg. 1U2; 2 Lomax on Ex’rs, top page 69,70, 71; 2 Wms. on Ex’rs, ;pB, 994, 995. Demonstrative legacies, like general legaey ■, in England, as a general rule, bear interest after the jo.ir; in this State, after eighteen months. Campbell Graham, 1 Buss. & Myl. 453; Hallet & Walker v. Allen, 13 Ala. 554; Keyes on Chattels, 356, §518.

Where the bequest is of a part of a particular thing or money, ■■ h specified and distinguished from all others of the same kt ml—it is individualized, and susceptible of distinct idem ib cation ; and is, therefore, a specific legacy. On the other *¡:>.id, if the legacy is of a given quantity, and the in'.crtbui was merely to point out the particular fund or pi;< -¡ >e -t y by way of demonstrating whence the payment wuk to be derived, it is demonstrative.—See the authority^ above cited; also, Baliet’s appeal, 14 Penn. 45; Gallagher v. Gallagher, 6 Watts, 483; In re Barclay’s estate, 10 Penn. St. R. 387. Thus, a gift of so much stock, out of some :q.vc-'.fied stock, is a specific legacy; but a gift of so much v‘«rey, out of the particular stock, is a demonstrative leg jy.—Hoskings v. Nicholl, 1 Younge & Collyer, 478 ; Smith v. Lampton and Wife, 8 Dana, 69. The distinction here is, that the testator intends, in the former case, to give the identical stock mentioned; whereas, in the latter, he is supposed merely to indicate the source, whence the prescribed quantity of money is to be paid.

The authorities show, that the gift of a part or residue of a particular debt is a'specific legacy.—Ford v. Flemming, 1 Eq. Cas. Abr. 302; Basan v. Brandon, 8 Simon, 171; 2 White & Tudor’s Lead. Cas. in Eq. pt. I, top pages 351, 352, 353, 354, 367. But a legacy of so much money, to be paid out of a debt, is demonstrative.—Campbell v. Graham, 1 Russ. & Myl. 453; Colville v. Middleton, 3 Beav. 57. A legacy to the testator’s son, of so many of his horses as should amount to eight hundred pounds, is specific.—Bichards v. Bichards, 9 Price, 219. So, also, a bequest of so much—“a part of my stock.”—Kirby v. Potter, 4 Vesey, 747; Davis v. Cain, 1 Iredell’s Eq. 304; Roper on Leg. 204. Several bequests of different amounts of South-sea stock, followed by a bequest of the regaining specified amount of South-sea stock standing in the testator’s name, were all regarded as specific, legacies. Sleech v. Thorington, 2 Vesey, sr. 560. So, gifts”of two different sums, out of a certain sum due on ¡a described bond, and a gift of the residue, specifying (Le amount, were all held to be specific legacies.—Badrick v. Stevens, 3 Brown’s C. C. 431. In North Carolina, ‡ legacy to a certain value, to be taken out of the testator’s notes, as soon after his death as it could be done, wás decided to be specific.—Perry v. Maxwell, 2 Dev. Eq. 487, 502. See, also, Ludlam’s estate, 1 Parsons’ Select Cas.in Eq. 116; Chanorth v. Beech, 4 Vesey, 556; Roberts v. Pocock, 4 Vesey, 149; Askburner v. Macguire, 2 Bro. C. C. 108; S. C., 2 White & Tudor’s L. C. in Eq. pt. I, and notes page (top) 346, marg. 201; Cogdell v. Cogdell, 3 Dess. 346; Walton v. Walton, 7 Johns. Ch. 258; Walls v. Stewart, 16 Penn. St. R. 275; Avelyn v. Ward, 1 Vesey sr. 419; Howe v. Earl of Dartmouth, 7 Vesey, 137; Stanley v. Potter, 2 Cox’s Ch. Cases, 180; Bethune v. Kennedy, 1 Myl. & Cr. 114.

The bequest here is of a part of the testator’#, slaves. The controlling application of many of the decisions above collated and cited to such a case is apparent. One of the tests of a specific legacy is, whether it would be adeemed by the failure of the thing given, or whether it would still be satisfied out of the general assets. Here, as the gift is of a part of the testator’s slaves, it would clearly be a violation of the will to supply the want of the slaves by the purchase from the general assets of other slaves. It would give other and different property from that which is bequeathed by the will. Upon reason and authority we decide, that the legacy was specific, and that there is no error in the charge given, or in the refusal to charge. No other question than that which we have decided has been presented in argument, and we have, therefore, confined ourselves to it.

The judgment of the court below is affirmed.