concludes thus: "No authority, however, has been produced to show, that in a case like the present, when the debt, which is the subject of the gift, is paid off, the money can be followed into the hands of another party, merely because the testator has not spent it, and that therefore it ceases to be within the principle of ademption. Ademption arises from this, that you cannot find the thing which is adeemed. I think that principle applies to the present case, and that I must hold this legacy to have been specific and to have been adeemed."

12. This subject was very extensively considered by the House of Lords, in Creed v. Creed,24 and the careful reading of that case will throw much light upon the subject. That was the case of annuities charged upon real estate in the first instance; then debts charged upon the same real estate, in aid of the personal estate; then an annuity, given in similar terms with the first. There were given several pecuniary legacies, to be paid out of the residue of the personal estate, and, upon a deficiency of personal estate, to be raised in the discretion of the trustees out of

the one most favorable to those who claimed this to be a general legacy. But in that case, which was the gift of £500, then out upon mortgage, and the interest due thereon, it appeared the testatrix had, at the time of making her will, £500 out upon mortgage, which she afterwards called in and applied to other purposes. Sir William Grant, M. R., held, that this was not a specific legacy, carefully distinguishing the case from the gift of a particular debt. “It was not the mortgage debt that was given, but the money which the testatrix .... had out. The thing is not the mortgage, but the money. . . . . The circumstance of its being on mortgage was accidental. . . . . It was no ingredient in the gift by way of condition or inherent description." The learned judge also referred to Gillaume v. Adderley, 15 Vesey, 384, as distinguishable from the one before him, and to Chaworth v. Beech, 4 Vesey, 555, as being the same in principle as the one then before him. The gift there being "the before mentioned sum of £8000, .... with the note" by which it was secured. And in Innes v. Johnson, 4 Vesey, 568, it was held that the gift of "£300, upon bond," there being a bond of that amount belonging to the testator, must be regarded as specific.

24 11 Cl. & Fin. 491.

the real estate. Lastly, the testator gave two annuities to his servants in similar terms with those before given. The personal estate was insufficient to pay the debts and legacies, and the real estate was insufficient to pay the annuities and legacies; and it was held that, upon the true construction of the provisions of the will, the annuities were entitled to priority over the legacies. This is partly upon the probable intention of the testator, as inferable from the phraseology of the will itself, but mainly from the fact of the annuities being made a recent charge issuing out of the land, which was regarded as creating an interest in the land, and being, therefore, necessarily specific.25 In regard to this particular question his lordship said: “There are many cases in which, though a legacy be charged upon a particular fund, it does not fail by failure of the fund, which are called demonstrative legacies; but these all proceed, upon the construction, showing a general intent to have the legacies paid without reference to the fund. Such was the case of Fowler v. Willoughby.26 But in such cases, if the particular fund be applicable, the legatee is entitled to the benefit of it, in preference to others having only a general claim.' Such was the case of Acton v. Acton.27 Whether, therefore, the annuities in the present case, as specific gifts of interest in the lands, or as primarily payable out of them, no others, not standing in the same situation, can interfere with the rights of the annuitants."

13. This subject was examined in Colvile v. Middleton,28 in

"Lord Cottenham, who gave the leading opinion in this case, cited in confirmation of this proposition, Long v. Short, 1 P. Wms. 403; Davenhill v. Fletcher, Amb. 244; Spong v. Spong, 3 Bligh, N. s. 84; s. c. 1 Dow. & Cl. 365.

* 2 Sim. & Stu. 354.

# 1 Mer. 178.

3 Beav. 570. The Master of the Rolls here cited the case of The Attorney-General v. Packin, Amb. 566, as being much stronger than the one before him. In Cartwright v. Cartwright, 2 Br. C. C. 114, the testator said in his will, "I give £1400, for which I have sold my estate this day." The testator afterwards received the whole money, paid it to his banker, and afterwards drew out

regard to a bequest of £5000, due upon a marriage settlement, which was directed to be paid when and if the same should be got in, and not otherwise; and in case the £5000 should be received by the testator in his lifetime, he directed the same to be raised out of his estate called X; and the testator received the £5000 during his life. It was held that the legacy was demonstrative, and a charge upon the general personal estate, as well as the estate X.

14. The very recent decisions in the English courts of equity seem to establish the point, that if the words of the will apply to any particular fund in the testator's possession at the date of the will, but which he afterwards changes, in whole or in part, the court will not apply the words so as to include the substituted securities. In Gilliat v. Gilliat,29 where the testator bequeathed his $10,000 Indiana 5 per cent stock," and had, prior to the execution of his will, possessed such stock, but at that time it had been changed into $ 5000 of that stock, some 2 per cent Indiana stock, and some canal stock, all of which he retained until his death, it was held that the $5000 alone passed.

30

15. In the very late case of Moore v. Moore, where a widow,

£1100 of the money, and it was held to be a legacy of so much money, and payable absolutely, as being demonstrative, and not a specific bequest of the particular money named.

29 28 Beav. 481.

30 29 Beav. 496. Nice questions sometimes arise in regard to the extent of a specific bequest. In a late case, (Field v. Peckett, 29 Beav. 573,) the testator bequeathed "all the household furniture, plate, china, books, &c., and other household effects of which I shall die possessed," and a question was made in regard to it, including forty-two snuff-boxes, made of gold, silver, china, tortoise-shell, and agate, which were used by the testator for the purpose of ornament in and about his mansion, and it was held they passed to the legatee. And in this case it was decided, that cabinets for china which had been ordered by the testator and made before his death, but not delivered until afterwards, passed also under the bequest, and that the bill for making was a proper charge against the executor.

being entitled to one third of her husband's personal estate, took out administration, and having sold a sum of stock belonging to the estate, reinvested the produce with a small addition in another stock, in her own name. By her will she bequeathed to her son all her share in the personal property of her husband to which she became entitled at his decease, and it was held that the stock passed as a specific bequest to the legatee.

16. In a late case decided by Vice-Chancellor Kindersley, the distinction between specific and demonstrative legacies is extensively discussed.31 It is here determined, that a legacy out of stock is specific, but a bequest of money out of stock is not, but demonstrative; that a specific legacy is not liable to abate, but a demonstrative legacy is; a specific legacy is liable to ademption, but a demonstrative one is not; a specific legacy

" Mullins v. Smith, 8 Weekly Reporter, 739; s. c. Digest to 6 Jur. N. s. 124; s. c. 1 Drew. & Sm. 204. Under a bequest of all the money in the public funds of which the testator might be possessed or entitled to at the time of his decease, stock which had been ordered to be purchased by his broker, and which had been charged to his account, but not actually purchased until five hours after his death, is not included. Thomas v. Thomas, 27 Beav. 537. A bequest of £4000 in parcels of £2000 to one, £1000 to another, and £1000 to sink into the testator's general estate, creates specific bequests as to the two former. Duncan v. Duncan, 27 Beav. 386. The precise distinction between specific and demonstrative legacies is one of great importance and of no slight difficulty. In Paget v. Hurst, 9 Jur. N. s. 906, Vice-Chancellor Wood held, annuities, charged upon the rents of real estate, devised subject to the charges, which proved insufficient for the purpose of paying the annuities, were not specific, but demonstrative gifts, and that the deficiency must be paid out of the capital of the residuary personal estate. And where a lady gave certain legacies, desiring her supposed husband to pay them out of her personal estate, which she mistakingly supposed had become his, the marriage being invalid, the lady survived the husband, and the legacies were held demonstrative. Jones v. Southall, 9 Jur. N. s. 93. So legacies payable out of the avails of a partnership are held demonstrative. Bevan v. The Attorney-General, id. 1099; s. c. 4 Giff. 361, "The rest of my property in consols" is a specific legacy. Foxen v. Foxen, 10 L. Times, N. s. 290.

carries with it the dividend from the death of the testator, but a demonstrative one does not.

17. Where a testatrix bequeathed "the sum of £2000 long annuities standing in my name in the books of the Governor and Company of the Bank of England," and at the date of her will and at the time of her death was possessed of but £300 long annuities, but had other personal estate of considerable value, it was held to be a specific and not a demonstrative legacy, and that the legacy failed except as to the $ 300.32

18. Questions of importance often occur in regard to particular funds belonging to the estate being primarily charged with the payment of demonstrative legacies, and by consequence other funds constructively exonerated. Vice-Chancellor Stuart held in Sellon v. Watts,33 that demonstrative legatees must get their legacies, first out of the demonstrative fund as far as it extended, and the balances only, together with the general legatees, out of the general fund. But that demonstrative legatees must abate with general legatees, and have no right after get

32 Gordon v. Duff, 6 Jur. N. s. 1046; s. c. 28 Beav. 519; s. c. affirmed, 7 Jur. N. S. 746. The good-will of a partnership business cannot become the subject of a specific bequest, as it belongs to the surviving partners. Robertson v. Quiddington, 28 Beav. 529; Lewis v. Langdon, 7 Sim. 421. A legacy of one half of all my stock in the following named railroads, naming certain companies, and one half of my stock in the W. bank, creates a specific legacy, and the income of such stocks will go to the legatee, and parol evidence is not admissible to show that such was not the intent of the testator. Loring v. Woodward, 41 N. H. R. 391. Anything in the will showing the testator had reference to particular estate, as the government stocks or shares in public companies to which the testator might be entitled, renders the legacy specific. Measure v. Carleton, 30 Beav. 538.

Where legacies are

33 7 Jur. N. s. Dig. 134; 9 Weekly Reporter, 847. charged upon real estate which is devised subject to such legacies, and the personal estate is bequeathed in trust to pay debts and certain expenses, and to pay the rest to a charity, it was held that the personal estate was exonerated from the payment of the legacies charged upon the real estate. Ion v. Ashton, 28 Beav. 379.