$1200 and interest on the same, contained in a bond and mortgage described in the will, with a subsequent provision importing that the same is given to the legatee for life, with a limitation over, is not a specific, but a demonstrative legacy, giving the income of $1200 during the life of the legatee; and the same is not adeemed by the assignment or extinction of the bond and mortgage during the life of the testatrix.

31. The precise and specific changes which will have the effect to adeem a specific legacy it is not easy to define, by any such ready and infallible tests as will be intelligible, and at the same time applicable, to all cases. And the cases upon this point do not seem entirely reconcilable with each other. The question is considered to some extent under the title of ademption. And the analogies of the subject were considered somewhat extensively in the former portion of this work, with reference to the revocation of devises of real estate by alteration of the estate. The question was examined, at an early day, by the most distinguished of the American equity judges.65

It may

in thirty shares in the Bank of the United States of America, is a specific legacy. Walton v. Walton, 7 Johns. Ch. 258.

"Post, § 54.

"Ante, pt. 1, § 26.

* Kent, Chancellor, in Walton v. Walton, 7 Johns. Ch. 258, where the following points are declared: "Where, before the testator's death, the charter of the United States Bank expired, and all its property and funds were conveyed to trustees, who divided the funds received by them from time to time among the stockholders, and the testator received the dividends on the shares devised, but did not sell or dispose of the shares: held, that this was an ademption of the legacy pro tanto only, and the legatee was entitled to any dividends after the testator's death; the variation in the testator's interest in the stock or fund, by operation of law, not being any extinguishment or ademption of the legacy. So where two shares in the Western Inland Lock Navigation Company were bequeathed to the plaintiff, and in the lifetime of the testator, the shares, by some arrangement, were increased to the number of six, and the stock, under an act of the legislature, became vested in the state, and a certain sum was to be paid to the stockholders, as a compensation for its value: held, that the legacy was not adeemed or extinguished."

be stated, as the general rule upon the subject, that where the estate in, or the title to, the thing specifically bequeathed, is essentially changed, the legacy will be adeemed. The essential identity of the thing must continue, and so also of the testator's title and interest in it, up to the time of his decease, in order to have the specific bequest take effect. After that the legatee will acquire perfect title, according to the terms of the bequest, unless the same is required to meet the claims of creditors, either by way of special encumbrance or general lien.

32. The rights of specific legatees, of goods and chattels in remainder, against those entitled for life, may sometimes become important to be known. It was formerly the practice in equity to require of the tenant for life security, that the property thus bequeathed should not be unnecessarily deteriorated while it remained in his possession, and be ready at his decease to pass to him entitled in remainder, in the same state and condition as when delivered to the tenant for life, ordinary wear and decay only excepted.66

33. But the rule was abandoned at an early day, and in the language of Lord Thurlow, in Foley v. Burnell,67 "the cases as to tenant for life giving security for the goods have been overruled, and the court now demands only an inventory of the tenant for life, which is more equal justice, since there ought to be

The bequest of a sum of money, "to be kept in gold and silver and paid to the legatee at full age," is not a specific legacy. Mathes v. Mathes, 3 Hare, 59. See also Enders v. Enders, 2 Barb. 362.

∞ Aston v. Aston, 2 Vern. 452, 453. This case is commonly cited to this point, but it was in fact the case of a bequest to become void upon the non-performance of a condition subsequent, i. e. if the legatees married without consent of their mother, which is a case where there might be more than ordinary propriety in requiring security not to violate the condition upon which the bequest was made, and, if not performed, to restore the bequest to the executor or legatee in remainder. But there is no question the same practice extended to cases of tenants for life and remainder-men of personal chattels.

67 1 Br. C. C. 274, 279.

danger in order to require security." In the language of Mr. Justice Story,68 "the modern rule is, not to entertain such a bill [that is, to obtain security of the tenant for life], unless there be some allegation and proof of waste, or of danger of waste, of the property. Without such ingredients the remainder-man is only entitled to have an inventory of the property," so that he may be able to identify it and compel a delivery when his right accrues. The same rule is maintained in the American courts.69 34. There has been considerable discussion in the courts how far a bequest of leaseholds in remainder by way of executory devise is defeated by a renewal of the lease in the time of the tenant for life, the existing lease at the decease of the testator having expired, and being renewed by virtue of a clause of renewal contained in the original lease. The case would seem very obvious, upon principle, that a renewal, which was provided for in the subsisting lease, at the date of the will, must, of necessity, be regarded as a mere continuance of the original interest and estate of the testator. And the cases have adopted this view even in the case of leases containing no express clauses for renewal.70

35. And the same rule has been extended to the case of a tenancy from year to year being so bequeathed, and the tenant for life accepting a lease for a term of years.71

36. The fine, and all other charges paid by the tenant for life, as the cost of the renewal of the lease, will be chargeable upon the tenant in remainder, in proportion to his interest.72 This question, and others arising out of the renewal of leases so bequeathed, is extensively discussed by Mr. Roper,73 but it is not

68

1 Eq. Jur. § 604.

Walworth, Chancellor, in Covenhoven v. Shuler, 2 Paige, 122, 132; post, § 65, pl. 25, 26.

Taster v. Marriott, Amb. 668; Rawe v. Chichester, id. 715; Pickering v. Vowles, 1 Br. C. C. 197.

Doe v. Porter, 3 Term R. 13; James v. Dean, 11 Vesey, 383, 395.

matter of sufficient practical importance here to justify taking more space.

37. Where a specific legacy is charged with the payment of debts, this will exonerate the residue of the estate from that charge to the extent of the specific bequest. 74

38. Where the testatrix bequeathed several sums of her bankstock to several persons, being part of her £9000 like stock, and all the residue of her said bank-stock to C., and the stock at her decease was insufficient to pay the specified sums, it was held that all the legacies, including the residue to C., must abate in proportion. This case may do better justice than to have visited the whole loss upon the residuary legatee of the fund; but it does not seem entirely in consonance with the general current of the decisions, to treat the residuary legatee as only standing upon the same ground as those whose shares are specifically defined; merely because the fund being definite, the share intended to fall to him is susceptible of computation. In such cases it is certain the testator did not intend to place all upon the same footing, else they would have been named in a similar mode, as entitled each to a certain amount, and not one to the remainder. The residue is what shall remain, after the specific deductions named, and nothing more; and to construe it as was here done is to put other words into the testatrix's mouth, which we may conjecture she would have used if she had known what has since transpired, but which in fact she did not use. In saying this we recognize fully the fact that the courts do not make any distinction between legacies given in the early portion of the will from these given in the after-portions of the instrument, unless there is something to indicate a purpose, on the part of the testator, that one class shall be first paid to the exclusion of the other; otherwise all general legacies stand upon the same footing, notwithstanding the probable ground of conjecture that

* Webb v. DeBeauvoisin, 31 Beav. 573.

75 Elwes v. Causton, 30 Beav. 554.

the testator, had he anticipated a deficiency to pay the whole, might have omitted those last named rather than the others. Unless there is some clear ground of discrimination, all legacies expressed in similar terms will stand upon the same basis as to the order of payment.76 But we do not think this rule can upon principle be applied to a gift of the residue of a specific fund even, but such seems to be the rule 77 in England.

SECTION VIII.

LAPSED LEGACIES.

1. Definition of lapse, whether before or after the death of testator.

2. The use of the word heir, executor, &c., in addition to that of legatce.

3. Cases where the testator and legatee die by the same calamity.

4. The presumption is against the testator intending to give to the heir, executor, &c., where he merely names them.

5. The same rules apply where the will forgives a debt, as a legacy.

6. The principle of the distinction is, whether the testator directs the debt discharged, at all events.

7. To prevent a lapse, the testator must declare who shall take.

8. This rule enforced in the early cases, but relaxed in later ones.

9. Parol evidence not admissible to show intention of testator.

10. An intervening life-estate will refer provision against lapse to the period after death of testator.

"Nickisson v. Cockill, 8 L. Times, N. s. 778, before the Lord Chancellor; s. c. 9 Jur. N. s. 372. A testator is presumed to consider that there will be assets sufficient to pay all annuities and legacies given in his will, and to expect them to be paid equally. Street v. Street, 8 Law T. N. s. 306, before Vice-Chancellor Wood. And it is not sufficient to rebut this presumption that the legacies are given to several persons, with reference to successive residues interposed between the gifts, ib.

77

Wright v. Weston, 26 Beav. 429. In the recent case of Clark v. Clark, 11 Jur. N. s. 820, (1865,) before Vice-Chancellor Stuart, it was held, that when one estate was specifically devised to A, and another to B, and a third passed under the residuary clause, they must all contribute ratably to the payment of the debts, on the ground that the latter was none the less a specific devise because it passed under the residuary clause.