34 ting what they can out of the demonstrative fund, to claim their entire legacy, with the other legatees, out of the general And in Mullins v. Smith, it was held, that a specific legacy is not liable to abate for the payment of debts, but a demonstrative legacy is liable to abate, when it becomes a general legacy by reason of the failure of the fund of which it is payable. From all which it would seem that a demonstrative legacy has the prior right to the fund out of which it is directed to be paid, as against all other claims except those of creditors. If that is so, and it seems to be the present inclination of the English courts, demonstrative legacies have all the advantage of specific legacies, in regard to the fund upon which they are charged, and are exempt from the disadvantage attending specific legacies, that if the fund fails, either wholly or in part, it results to that extent in defeating the bequest. For if the fund for a demonstrative legacy fails, the legatee may go against the general estate for the unpaid balance. 19. Where the testator gave a legacy of £500 3 per cent consols, or other stocks into which the same might be converted, or in case he should not be possessed of such stock, then he gave a legacy of as much sterling money as the amount of stock would have been worth at his death, it was held that the first part of the bequest, there being sufficient stock to answer it, created a specific legacy, but that the alternative provision, although expressed to be a substitute for the first, created only a general legacy.34 20. There seems to have been no question but the specific legatee of shares in joint-stock companies, or of stock in the public funds, is entitled to the dividends which accrue after the death of the testator, in analogy to the rights of tenant for life of such shares and stocks.35 And of late years there seems to "Mullins v. Smith, 1 Drew. & Sm. 204. "Barclay v. Wainewright, 14 Vesey, 66. Some of the early cases treated an extra dividend, or occasional dividend, as a virtual distribution of extra have been no question made, that where the company declare an extra dividend, or an enlarged dividend at the ordinary time which in the English books is denominated a bonus, growing out of reserved earnings, or the recovery of suspended or contingent claims, that the tenant for life, or a specific legatee, is entitled to such extra dividend or bonus.36 But this question arose in a somewhat novel form, in a late case 37 before the English courts. The testator, at the time of his death, had certain shares in a joint-stock company, which he had specifically bequeathed. After his death the testator was found to be largely in debt to the company, and a suit was instituted by the company for the recovery of the same, which was settled by way of compromise, under the sanction of the court, and a large sum paid by the estate in liquidation of the claim of the company, out of which they declared a bonus or extra dividend. The case was heard before the Master of the Rolls, who decided that this bonus belonged to the general personal estate, and not to the specific legatees. Upon appeal and hearing before the Lord Justices, in the Court of Appeal in Chancery, this decree was reversed, and the dividend awarded to the specific legatees.38 capital, and as of right belonging to the owner of the remainder, and not to the tenant for life. Brander v. Brander, 4 Vesey, 800. See also Witts v. Steere, 13 Vesey, 363; Norris v. Harrison, 2 Madd. 268; Irvine v. Houston, cited in Barclay v. Wainewright, supra. See also Preston v. Melville, 16 Sim. 163, where the tenant for life was held entitled to a bonus declared in his time. See also Paton v. Sheppard, 10 Sim. 186. Price v. Anderson, 15 Sim. 473. See also note 35, ante, and cases cited. 33 Maclaren v. Stainton, 7 Jur. N. s. 691 (1861). It was admitted in this case that the testator, who had for a long period been the general manager of the company, bequeathed the shares under the belief that he was not indebted to the company, and that the debt had been paid out of the general personal assets of the estate, which had thus supplied the source of the dividend. But in another case, where the testator died a few days after the dividend was declared, but before it was payable, having specifically bequeathed the shares, it And, in analogy to the foregoing rules, it is well settled, that the specific legatee of shares in a joint-stock company is bound to pay all calls actually made after the decease of the testator.89 Where calls were ordered at successive periods, some of which had been demanded of the testator and others not, it was held, that the estate was only liable for the payment of such as had already been notified to the testator, and that the specific legatee must pay such as were actually demanded after the testator's decease, although voted before." 41 40 21. It seems to be universally conceded that a devise of real estate is always to be regarded as specific, whether the estate is specifically described, or only in general terms, and by reference to other facts and documents. And the same rule holds good as to the bequest of all leases and other chattels real. They are considered in the nature of real estate out of which they issue.42 was decided that the bonus belonged to the estate, on the ground that it accrued before the death of the testator. Lock v. Venables, 27 Beav. 598. Day v. Day, 6 Jur. N. s. 365. * Addams v. Ferick, 26 Beav. 384. But where there was a gift of the residue of an estate for life, and then over, part of the property consisting of shares not fully paid up, it was said that, although as a general rule the specific legatee of such stocks would be held to pay calls made after the testator's death, the rule will not apply, where there is an intention to be collected from the form of the will, that no severance shall take place during the continuance of the lifeestate. Box in re, 9 Law T. N. s. 372. 1 Roper, 194; Forrester v. Leigh, Amb. 171, 173. * Oneal v. Mead, 1 P. Wms. 693; Long v. Short, id. 403; Rudstone v. Anderson, 2 Ves. Sen. 418; 1 Roper, 194, and other cases there referred to; Mayott v. Mayott, 2 Br. C. C. 125. The same rule substantially obtains in the American courts. Thus the devise "of the balance of my real estate, believed to consist of lots numbered six," &c., was held to be specific. Walker v. Parker, 13 Pet. Sup. Ct. R. 166. And where the testator directed that any deficiency in his estate, whereby it should prove insufficient to answer all the legacies and annuities given, should be made up from the residuary bequest, and from a general legacy given the same person, it was held that this applied as well to deficiencies occurring from losses after the decease of the testator, by reason of the bankruptcy of the executor, as to any such deficiency existing at the testator's decease. Silsby v. Silsby, 3 Cranch, 249. 22. A distinction is made between legacies out of the issues of real estate, whether resulting from sale or otherwise, and legacies merely chargeable upon estate. In the former case it has been regarded the same in effect as a devise of a specific proportion of the real estate, and consequently as creating a specific devise, the same as if a portion of the estate itself had been devised.43 But legacies merely charged upon real estate do not become specific legacies, any more than if charged upon stocks or some other personal fund. They are merely demonstrative, in all such cases, and although they thereby acquire a prior right to payment out of the estate charged for that purpose, they are not adeemed by the disposition of that fund during the life of the testator, or by it proving inadequate to the full payment of the legacy.44 23. Thus in Mann v. Copland,45 where the testator gave £10 annually to his servants, by name, during his natural life, to be "paid out of the rents arising from a certain estate," &c., it was held not to be so far specific as to depend exclusively upon such rents, but only as a charge upon them. The Vice-Chancellor, Sir Thomas Plumer, said: "It is not so specific and so connected with the fund, as to fail if there is no such fund, it appearing there was a fixed, independent, separate, distinct intent to give the legacy; the property out of which it was to be paid being a secondary thought." 43 Creed v. Creed, 11 Cl. & Fin. 491, (s. c. before Sir E. Sugden, Chancellor of Ireland, 1 Dr. & W. 416,) where the decree was reversed by the House of Lords and that of Lord Plunkett affirmed. Ante, § 48, Pl. 12. "Lord Cottenham, in Creed v. Creed, 11 Cl. & Fin. 491. His lordship said, "General legacies do not become specific, because they are payable out of the proceeds of real estate, but the gift of the proceeds of the sale of real estate may be specific; as in Page v. Leapingwell, 18 Vesey, 463. So the charge of legacies upon real estate does not make them specific, although the annuities payable and issuing out of them are so." His lordship here held that the annuities were specific gifts "out of the real estate, and that the legacies were not.” 45 2 Madd. 223. 24. Thus it appears, from the above as well as from most of the cases upon the subject, that in cases of a doubtful charac * 1 Roper, 192. "It is necessary that the intention be either expressed in reference to the thing bequeathed, or otherwise clearly appear from the will, to constitute the legacy specific." The indication of intention must be clear to make a legacy specific. Smith v. Lampton, 8 Dana, (Ky.) 69. Morton, J., in Briggs v. Hosford, 22 Pick. 288, 289: "The court always leans against specific legacies as being less consonant to reason and justice than general legacies." Chaworth v. Beech, 4 Vesey, 555; Innes v. Johnson, 4 Vesey, 568; Kirby v. Potter, 4 Vesey, 748; Mayrant v. Davis, 1 Dessaus. 202; Cogdell v. Cogdell's Heirs, 3 Dessaus. 346; Warren v. Wigfall, 3 Dessaus. 47; Cuthbert . Cuthbert, 3 Yeates, 486. A bequest of all my stock in the Housatonic Bank, amounting to $6000, the testator having that amount at the date of the will, but having $9000 of the same stock at the time of his decease, was held to be a specific bequest of what the testator had at the time of making his will. Foote, ex parte, 22 Pick. 299; White v. Winchester, 6 Pick. 48; Ashburner v. MacGuire, 2 Br. C. C. 108; Jeffreys v. Jeffreys, 3 Atk. 120. So uniformly has this principle been pursued by the courts, and such persevering efforts have been made by all courts to maintain all legacies which the testator evidently intended to have paid, without reference to the sufficiency of the fund charged, that scarcely an exceptional case will be found. Savile v. Blacket, 1 P. Wms. 777; Fowler v. Willoughby, 2 Sim. & Stu. 354; Campbell v. Graham, 1 Russ. & My. 453; Livesay v. Redfern, 2 Yo. & Coll. 90. See also Balliet's Appeal, 14 Penn. St. 451, 461; Walls v. Stewart, 16 Penn. St. 275, 281; Bradford v. Haynes, 2 Appleton, 105. A bequest to one person of a certain number of bank shares of a particular bank, and to another person a certain number of the shares of the same bank, the testator owning, at the time, the precise number of shares in that bank thus bequeathed to both legatees, but not referring to that fact, or intimating in any specific language of the will an intention to give the particular shares then owned by him, creates a general and not a specific legacy. Tifft v. Porter, 8 N. Y. Ct. App. 516. The rule is here declared, that a legacy is general and not specific, unless by its terms it indicates a particular part of the testator's estate as the subject of the bequest. The learned judge, Mr. Justice Johnson, here declares, that the case of Everitt v. Lane, 2 Ired. Eq. 548, where it was held that the gift of "one carriage" to the testator's wife, he having but one, must be construed as a specific bequest of that carriage, is not founded upon a sound view of the law; and concludes, that such is the present inclination of the courts against making legacies specific, and thus dependent upon the |