an annuity equal to the interest upon the sum named, at the rate fixed by law; and that it was not chargeable with any tax,56 or deduction on account of the services of the executor in the management of the same. 20. The bequest to his daughter of the amount of a certain note which the testator held against her husband, "to be paid by my executor as soon as convenient after my decease," was held to pass the note itself, and not an equal amount of money.57 21. The terms "estate" and "property " 58 will embrace both realty and personalty, and it requires clear evidence of such intention to induce the court to give a more restricted import to these terms.59 22. The devise of "all the residue of my estate, real and personal," will include a sum of money specifically bequeathed to a child in ventre sa mere, but which was afterwards still-born.60 In general, as before stated, real estate not effectually devised goes to the heir, but a residuary devise of all property was held to carry real estate attempted to be, but not effectually disposed of by the will. It is said,62 that a lapsed legacy is more generally allowed to go to swell the residuary bequest than one that is void, as being against the policy of the state, but it seems questionable how far any such distinction is maintainable. 23. The bequest of a "home on the farm" was held not void 5 Swett v. City of Boston, 18 Pick. 123. In this case the testator gave his daughter the interest upon $ 50,000, during her natural life, the principal, at her decease, to be equally divided among her children; and it was held not to be setting apart that sum for the benefit of his daughter and her children, but to be the gift of a definite annual sum, equal to the interest upon $ 50,000, to be paid by his exectors out of his estate, and that consequently the $50,000 could only be taxed to the estate during the life of the daughter. 57 Howe v. Bemis, 2 Gray, 205. 59 Andrews v. Brumfield, 32 Miss. Rep. 107. 64 for uncertainty. And in another case, it was held, that in giving effect to a bequest of a reasonable support to the widow of the testator, regard should be had to the extent and income of the estate, and the propriety of her living with, and taking care of, her small children. And under a bequest to the widow, in lieu of dower, of "a decent and comfortable support and maintenance in sickness and in health, it was held, that in view of her station and mode of life, and the amount of the estate, she was entitled to be supported in housekeeping, economically, at the place of her residence.65 24. In the will of the author of the Commentaries on American Law there was a specific bequest of the copyright of that work, "with the right of renewal of all previous and future editions according to law, and all other rights and privileges pertaining to the copyright." The residuary bequest enumerated "unsold Commentaries on hand.” At the date of the will a part of a previous edition was on hand, which was sold before the death of the testator. But at the time of his death there was a new edition in the course of printing, and it was held to pass under the specific bequest, and not under the residuary clause.66 25. In examining the cases upon legacies and devises, an almost infinite variety of terms come up for construction; but the decisions are controlled, in the main, by the special circumstances of the particular case, and are not therefore, as before often suggested, of much value for future use; but such cases are not entirely without value, as defining the degree of strictness or latitude which the courts have tolerated, in fixing the construction of bequests in wills. Thus the term "provisions," in connection with household supplies, was held to include "Hone v. Kent, 6 N. Y. Ct. of App. 390, reversing s. c. 11 Barb. 315. wine and brandy which the testator had provided for his own use.67 The word "estate," in a will, as applied to real property, may have reference either to the quantity of interest, or the thing devised, or both; and the sense in which it is used must be determined by the will itself.68 A watch worn by the testator is not regarded as passing under a bequest of "wearing apparel." 69 26. The devise of a "house" will carry all within the curtilage, the same as the term "messuage.❞ 70 SECTION VII. SPECIFIC AND DEMONSTRATIVE LEGACIES. DISTINCTION BETWEEN SPECIFIC AND GENERAL LEGACIES. 1. The general definition of this distinction. 2. Not requisite that the corpus of a specific legacy be in existence at the time of giving. 3. Chief Baron Richards' definition of distinction between general and specific legacies. 4. Civil Law definition adopted into English law. 5. Mistakes susceptible of correction shall not defeat specific legacy. 6. How far and in what mode money may be bequeathed specifically. 7. Balance of partnership settlement may be specifically bequeathed. 8. No direction as to the mode of payment or investment under a bequest specific. 9. Advantages and disadvantages of legacy being specific. 10. Demonstrative legacies defined and discussed. 11. The distinction between such legacies and specific legacies stated. 12. The principles laid down by the House of Lords upon this subject. 13, and n. 28. Illustration of the disposition of the courts to uphold a legacy. 14. The later decisions follow the terms of the bequest more strictly. 67 Mooney v. Evans, 6 Ired. Eq. 363. Hart v. White, 26 Vt. Rep. 260. Gooch v. Gooch, 33 Me. R. 535; Heirs of Sawyer v. Sawyer, 28 Vt. Rep. TO Rogers v. Smith, 4 Penn. St. 93. 15. Bequest of one's share in an estate regarded as specific. 16. Distinctions between demonstrative and specific legacies further discussed. 17. Funds deposited in bank specifically bequeathed. 18. How far demonstrative legacies must abate. 19. Legacy may be specific in one alternative, and general in another. 20. Specific legatee of stocks entitled to bonus, or extra dividend, and bound to pay assessments made after testator's decease. 21. All devises of real estate or chattels real are specific. 22. Legacies out of the avails of real estate regarded as specific, but not so of a mere charge. 23. Where there appears a clear intention to have it paid absolutely, not held specific. 24. The intention of the testator will have a controlling influence. 25. Legacies may be so charged on real estate as to exonerate the personal. 26. Questions often occur how far residuary bequests are specific. 27. Sometimes, enumerated articles, although connected with residuary clause, held specific. 28. Property of a perishable nature given in succession, may be converted into permanent fund. 29. But this cannot be done unless consistent with expressed intent of the will. n. 58. Exposition of the subject, as held in the English courts. Not adopted in America. 30. The American cases referred to as defining specific bequest of choses in action. 31. The precise change in the title or estate, which will adeem the legacy. 32. Formerly courts of equity required security of the tenant for life of goods, for the protection of him entitled in remainder. 33. Only an inventory is now required of the tenant for life. 34. Renewal of leaseholds treated as part of the original estate. 35. The same rule applies to tenancies from year to year, converted into tenancies for term of years. 36. The expenses of renewal including any fine paid, to be shared in proportion to several interests. 37. Where a specific legacy is charged with the payment of debts, it will exonerate the residue. 38. Where an entire fund is bequeathed to different persons, the residue treated as a specific share. § 49. 1. THE distinction between specific and general legacies is one which, in general, would not be attended with any difficulty. A legacy is said to be general when it is not answered by any particular portion of, or article belonging to, the estate, the delivery of which will alone fulfil the intent of the testator; and when it is so answered, it is said to be a specific legacy, because it consists of some specific thing belonging to the estate, which is, by the legacy, intended to be transferred, in specie, to the legatee.1 All legacies are either general or specific. 2. It has sometimes been made a question how far the thing constituting the corpus of a specific legacy must be in existence, -or belong to the testator, at the making of the will, but we apprehend that there is no good ground for any such inquiry. Where the testator bequeathed the dividends of all stocks he should be entitled to, at the time of his decease in the public 1 2 Wms. Exrs. 1041, 1042. A bequest of money, naming the sum, “or the value thereof, in other property," is a general legacy. Fagan v. Jones, 2 Dev. & Batt. Ch. 69. But a bequest of all the money which shall be received under the decree in a certain suit, is specific. Chase v. Lockerman, 11 Gill. & J. 185 ; Gilbreath v. Winter, 10 Ohio, 64. And a bequest to the testator's wife of one year's provision, is a general legacy. Everitt v. Lane, 2 Ired. Eq. 548. A bequest of all the testator's right, interest, and property, in thirty shares in the Bank of the United States of America, is a specific legacy. Walton v. Walton, 7 Johns. Ch. Rep. 258. So a bequest of £5000 consols, with a direction that if the testatrix should not have enough stock to answer the legacy, her executors should, out of her residuary estate, purchase sufficient to make up the deficiency, was held to create a specific and not a merely demonstrative legacy. Townsend v. Martin, 7 Hare, 471. So also a bequest of £4000 capital stock in the £3 per cent. consols, or in whatever of the government funds the same shall be found invested, was held to be a specific legacy. Hosking v. Nicholls, 1 Y. & C., C. C. 478. The same general distinction applies to the bequest of chattels. The use of the definite article, as applicable to the thing bequeathed, instead of the indefinite article, or of the word "my," as showing its present existence and property by the testator, tend to indicate a specific bequest. Thus a bequest of a horse, ring, or other article, is a general legacy, and if the testator leave no such article, or in fact never had any such article, it is still a good legacy, and the executor must procure one to meet the bequest. But if the bequest be of the horse in my barn, or the ring in my cabinet, it will ordinarily be regarded as a specific bequest, having reference to some specific article which alone can answer the will. Richards, Ch. B., in Fontaine v. Tyler, 9 Price, 94; Lord Langdale in Stephenson v. Dowson, 3 Beav. 342, 349; Richards v. Richards, 9 Price, 219, |