Vogel v. Saunders

STEPHENS, Associate Justice.

I dissent. I understand the facts to be these: Some six years prior to her death in 1934, Jennie T. Davis executed a will, and later a codiciL So far as here pertinent the will provided:

“I bequeath to my friend Bertha B. Vogel, of the District of Columbia, fourteen shares of American Telegraph and Telephone stock, provided she survives me.”

The will also gave Bertha B. Vogel an annuity and an eighth of the residue; the codicil gave her a life estate in certain realty. At the time of her death Jennie ¡T-Davis owned ten shares of American Telegraph and Telephone stock, four of which were in pledge. As to whether at the time of the execution of the will she owned any of such stock the record is silent. Upon these facts the majority concludes that the legacy of the fourteen shares of stock was specific rather than general — adeemed as to four shares — and not, therefore, subject to be sold to pay debts.

I think this conclusion is wrong and the reasons given for reaching it untenable. Under the most elementary rules the legacy was, in my opinion, general.

“A specific legacy is a gift of a specific thing, or of some particular portion of the testator’s estate, which is so described by the testator’s will as to distinguish it from other articles of the same general nature. A specific legacy differs from a general legacy in that it is not intended by testator to be paid out of his estate generally, but is to be paid solely by delivering to the beneficiary the specific thing given by will, as distinguished from a designated value, quantity, and the like. The use of the word ‘my’ or some other expression which indicates ownership, tends to show that the legacy is specific. A specific legacy is given by words which describe and identify the specific property which testator gives to the beneficiary. . . . ” 2 Page on Wills (2d Ed.) § 1227. As said in First National Bank of Boston v. Charlton, 281 Mass. 72, 76, 183 N.E. 250, 251:

“the essential thing in making the gift other than general: [is] A specification by the testator of property then his or contemplated to become subject to the will which can be identified when he comes to die.”

Where stocks, bonds, or other securities, up to a given value or in a given number, are the subject of testamentary gift it is frequently difficult to determine whether the gift is general or specific. Which it is depends upon the intent of the testator, the cardinal rule of testamentary construction being to ascertain such intent and give it effect. Where the language of the testator is lacking in clarity the circumstances under which the will was written may be consulted to explain or make certain what the testator has written. Blake v. Hawkins, 98 U.S. 315, 324, 25 L.Ed. 139. In determining the intention of the testator in respect of legacies, the law inclines to hold them general rather than specific. This is the rule in this jurisdiction. Kenaday v. Sinnott, 179 U.S. 606, 21 S.Ct. 233, 45 L.Ed. 339; Douglass v. Douglass, 13 App.D.C. 21. In the former case Mr. Chief Justice Fuller, speaking for the Court, and quoting from Tifft v. Porter, 8 N.Y. 516, said:

“The inclination of the courts to hold legacies to be general, rather than specific, and on which the rule is based that to make al legacy specific, its terms must clearly require such a construction, rests upon solid grounds. The presumption is stronger that a testator intends some benefit to a legatee, than that he intends a benefit only upon the collateral condition that he shall remain till death, owner of the property bequeathed. The motives which ordinarily determine men in selecting legatees, are their feelings of regard, and the presumption of course is that their feelings continue and they are looked upon as likely to continue. An intention of benefit being 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 that intention.” 179 U.S. 606, at page 619, 21 S.Ct. 233, 45 L.Ed. 339.

In Douglass v. Douglass, supra, this court said:

“It may also be admitted that the leaning of the English decisions, followed generally in this country, has been towards a construction that would declare a legacy general rather than specific. The earlier cases, especially, indicate the rule to be to hold every legacy to be general, unless an intent to the contrary be either expressly shown in the words of the particular bequest, or made clearly to appear from the whole of the will.” 13 App.D.C. 21, at page 28.

There are innumerable decisions elsewhere establishing and applying this rule of construction. I am unable to find any to the contrary. For a collection of the cases, see 11 L.R.A.(N.S.) 49,66-67. And see the cases collected in the notes to Section 267 of 28 Ruling Case Law, p 293. The rule has been applied almost without exception by courts dealing with wills disposing of stated quantities of shares of stock or of bonds. Indeed, it is obvious that it is in such situations that the application of the rule is most likely to be called for, because it is in case of sulchl gifts that questions arise upon the face of the will as to the intent of the testator— that is, as to whether he intended the gift to be specific or general. Tifft v. Porter, supra, and Robinson v. Addison, 2 Beav. 515, referred to in another connection below, are cases applying the rule to legacies of stated quantities of securities.

Intent that the legacy in the instant case be specific is neither “expressly shown in the words of the particular bequest, [n] or made clearly' to appear from the whole of the will.” I concede that the mere absence of possessive words in the legacy itself such as “my stock” or “stock owned by me” is not conclusive. In re Ferreck’s Estate, 241 Pa. 340, 88 A. 505; Sherman v. Riley, 43 R.I. 202, 110 A. 629. But there is nothing in this will which describes and identifies the stock in such manner “as to distinguish it from other articles of the same general nature” or as to indicate that the testatrix intended that specific shares should be delivered to the beneficiary — that no other shares could satisfy the bequest. There is no “specification by the testator of property then his or contemplated to become subject to the will which can be identified when he comes to die.” The extrinsic circumstances of ownership at the time of death of ten shares, four pledged, is not controlling. See Capron v. Capron, 17 D.C.(6 Mackey) 340, 346. In Tifft v. Porter, supra, a testator left 240‘shares of certain stock to his wife and made a gift to another of 120 shares of the same stock. At the time of his death he owned exactly 360 shares. These legacies were nevertheless held to be general. To the same effect is Dryden v. Owings, 49 Md. 356. Indeed, in most of the cases where the question arises as to whether a gift of stock is specific or general, there is some stock in the estate at the time of the testator’s death.

There being nothing in the will and nothing in the extrinsic circumstances to indicíate clearly that it was intended by the testatrix that the gift be specific the general rule in favor of general legacies should be applied.

The majority recognizes the rule requiring a legacy to be treated as general unless a contrary intent is clearly shown, but refuses to give effect to it for the reason that other provision is made in the will for the legatee. Bertha B. Vogel is the chief object of bounty in the will. She is referred to therein as “my friend” and in the .codicil as “my dear friend and companion,” and, as stated above, is given, by the will and codicil together, in addition to the legacy, an annuity, an eighth of the residue, and a life estate in realty. Because the testatrix thus felt especially generous towards this legatee the rule intended to increase the chance of benefit under a will is held by the majority not to apply. An exactly opposite result would seem more sensible. That is to say, a rule which operates to insure benefit, and which rests on a basis of presumed continued good feeling toward a legatee, should be particularly applicable in favor of the person apparently most beloved by the maker of the will. The rule to hold legacies general rather than specific, unless clearly the latter, is uniformly applied in the cases notwithstanding that there are other gifts to the same legatee. See the cases cited in the notes to 2 Page on Wills (2d Ed.) § 1225, pp. 2036-2037.

In addition to refusing to apply a general rule of construction, the majority indulges an assumption of fact — the assumption that the testatrix owned at least fourteen shares of American Telegraph and Telephone stock at the time of the execution of the will. There is nothing whatever in the record to the effect that she ever owned fourteen shares. All that the record shows is that she had ten at death. Such an assumption of-fact was rejected in Re Low’s Estate, 103 N.J.Eq. 435, 143 A. 222. There the will read:

“I give and bequeath to my sister-in-law, Ida Grant, thirty (30) shares of the capital stock of the First National Bank of Toms River, New Jersey.” ■

A similar clause gave ten shares of the same stock to another legatee. The court held these legacies to be general, saying:

“There is no reference ... by which the stock thus bequeathed is earmarked or can be determined to be stock in that bank then owned by the testator. . . .

Proctors for both appellant and respondents, in arguing this question, discuss the fact, among others, of the connection of the deceased, as an officer, with the First National Bank of Toms River. The respondents advance that fact, and others, as a reason for concluding that these legacies are of stock owned by the testator on the date of his will; but the answer to that argument is that those facts do not appear anywhere in the record which is before me. There is nothing whatever in the record to indicate what or how much stock of this or any other kind was owned by the testator at the date of the will, and it is on the record alone that this decision must be based.” [Italics supplied] 103 N.J.Eq. 435, at pages 440, 441, 143 A. 222, at page 224.

The majority cites no case supporting the making of an assumption that a testator had at the time of the execution of the will property of the kind and in the amount mentioned in the will, where the issue before the court is whether a legacy is specific or general, and where under the facts the testator at the time of death had a smaller amount of the property than the legacy mentioned. The only case which seems to support such an assumption is distinguishable. In Smith v. Smith, 192 N.C. 687, 135 S.E. 855, the will read:

“5th. I will and direct that all my property shall remain as it is now under the direction of my wife, Frances E. Nesbit, so long as she shall live, and after her death, my property shall be distributed as provided in the items following: . . .

* * *

“10th. I bequeath unto Nannie Lee Kerr Nesbit twenty shares of the capital stock of the Mooresville Cotton Mills, Mooresville, N. C.”

Then followed four legacies to others of ten shares each of the same stock. At the time of the testator’s death he owned sixty shares, the exact amount of the total of the five legacies. The court ruled that actual ownership of the property at the time of the, execution of the will was an essential to a legacy’s being specific and found that the reference to “my property” in the 5th item was a sufficient indication that the testator owned the sixty shares at the time of the execution of the will and that he was in possession thereof. But the use of possessive words, and the exact coincidence between the number of shares given and the number owned at death, clearly differentiates the case.

Even if the assumption were permissible that the testatrix in the present case owned fourteen shares of American Telegraph and Telephone stock at the time of the execution of the will, the conclusion of the majority that this would make the legacy specific is, in my view, erroneous. In Robinson v. Addison, supra, there was a legacy of “five and a half shares in the Leeds and Liverpool canal, and all benefit and advantage thereof,” and there were two other legacies of five shares each in the same company. At the time of the execution of the will the testator owned exactly fifteen and a half shares. Nevertheless the English court held the legacies general, not specific. The court said:

“In the gift the testator has used no words of description or reference, by which it appears that he meant to give the specific and particular shares which he then had.

“Various arguments depending on the general scope and effect of the will, were used for the purpose of shewing that the testator, in giving the precise number of shares which he possessed, must have had those shares in his contemplation and none other, and consequently must have meant specific gifts of them; . . .

,¡í $ *

“It is, however, clear that the testator, if he had meant to give only the shares which he had, might have designated them as ‘his,’ — that the mere circumstance of the testator having, at the date of his will, a particular property, of equal amount to the bequests of the like property which he has given without designating it as the same, is not a ground upon which the Court can conclude that the legacies are specific; . ” [Italics supplied] 2 Beav. 515, at pages 519, 520.

In Re Low’s Estate, supra, after rejecting, as above pointed out, an assumption that the stock referred to in the will was owned by the testator at the time of execution of the will, the court said:

“But even though these facts were available for consideration they would not, standing alone, control. The intention to make the gift specific must be found in the will itself.” 103 N.J.Eq. 435, at page 441, 143 A. 222, at page 224.

The overwhelming weight of authority is that ownership at the time of the execution of the will of the exact number of securities given is not sufficient to make a legacy specific. See the cases collected in 2 Page on Wills (2d Ed.) § 1229, n. 2. See, also, Note, 11 L.R.A.(N.S.) 49, 74-79. General references are given because the cases are many in number and the rule practically uniform. In Douglass v. Douglass, supra, this court said:

“Without, therefore, reviewing the many well considered cases relied on by the appellant, ... it may be conceded that they establish the doctrine .that a bequest generally of certain bonds and stocks, without further explanation and without more particularly referring to and marking the corpus of the identical bonds and stocks, does not amount to a specific legacy, even though, at the time of the execution of the will, the testator may, in fact, have been possessed of bonds and stocks of that description, to an equal amount or more.

"This doctrine was fully recognised in Maryland ■. . .; and has been maintained in the District of Columbia.’’ [Italics supplied] 13 App.D.C. 21, at page 27.

A search of the cases indicates that only Missouri and New Hampshire are opposed to this rule. See Waters v. Hatch, 181 Mo. 262, 79 S.W. 916; Drake v. True, 72 N.H. 322, 56 A. 749.

The absence of the fact assumed by the majority is, by the very nature of a specific legacy, conclusive against the legacy’s being specific. See Capron v. Capron, loc. cit., supra; Slade v. Talbot, 182 Mass. 256, 259, 65 N.E. 374, 94 Am.St.Rep. 653. That is to say, if the testatrix was not in the will specifying property then hers, which could be identified when she came to die, then by no possibility could the legacy be specific — unless within First National Bank of Boston v. Charlton, supra, she was specifying property contemplated to become subject to the will, and of this there is no suggestion in the case.

. The majority I think makes a further error in relying upon a proposition to the effect that if the testatrix had owned no American Telegraph and Telephone stock at death, and if. the estate were insufficient to benefit the residuary legatees largely, the testatrix would not have intended the reduction of general assets to purchase shares for a specific legatee. This is sheer speculation from a hypothetical case. No proper argument for the construction of a will can be rested upon supposed post mortem situations and a testator’s supposedly probable reaction thereto had'he considered them. It is of interest to note in respect of the hypothesis that the testatrix would not have intended the reduction of general assets to purchase shares for a specific legacy, that the actual result of the majority decision is to submit for sale for debt the portions of the residuary legatees before the portion of Bertha B. Vogel.

I am authorized to state that Mr. Justice GRONER, joins in this opinion.