Bowen v. Dorrance ( 1879 )

Dubeee, C. J.

The question here presented for decision is whether the legacy given to Sophia F. Til-linghast by the will of the late Mary Demont Bowen is a specific or a general or demonstrative legacy. The legacy is given in these words: “ To Sophia F. Tillinghast I give (1,000) one thousand dollars in the Union Savings Bank which she will please divide with her cousins, the children of the Rev. J. C. Richmond.” The bequest is preceded in the will by certain pecuniary and specific bequests and followed by a bequest in these words : “ All that I have invested in the Rhode Island Hospital Trust Fund or in banks not otherwise disposed of I give in trust,” &c. The testatrix had, standing to her credit in the Union Savings Bank, $1,098.08, at the date of her will, and $1,025.00 at the time of her decease. The savings bank became insolvent just before her death and is now in process of liquidation.

Joseph 0. Dly, for complainants. James Tillinghast, for respondents.

We think the legacy is demonstrative, a thousand dollars being given and the deposit designated as the fund out of which it is to be paid. We think, however, the legacy must be paid out of the designated fund if sufficient, resort being had to the general fund only for the deficiency, if any. This seems to have been so purposed by the testatrix, as appears in the next clause where she gives all she has invested in banks, not otherwise disposed of, in trust, and is in accordance with authority. 2 Redfield on Wills, 1st ed. 468 ; Sellon v. Watts, 7 Jur. N. S. Dig. 134 ; 9 Weekly Reporter, 847. Decree accordingly.