Gelbach v. Shively

Aivey, O. J.. delivered the opinion of the Court. This case was brought to obtain a judicial construction of the will of George Gelbach, Jr., deceased, and to have determined the rights of certain parties thereunder. George Gelbach, the testator, died in Feb., 1880, leaving a widow and two children, and four grandchildren, all provided for in his will, which was duly admitted to probate. The father of George Gelbach, Jr., had died in 1879, leaving three children, including George, as his only heirs and dis ⁵⁰⁰ tributees, and he left a small estate, consisting of real and personal property in Pennsylvania, where he died, and some real property in the City of Baltimore.

George Gelbach, Jr., by his will, after giving some few legacies, made the two following bequests: “Item. I give and bequeath out of the portion or share of my father’s estate that may come to me, one thousand dollars to my brother, Joseph Gelbach.” “Item. I give and bequeath (out of the share or portion of my father’s estate that may come to me) one thousand dollars to my sister Elizabeth ¡Shively.” He then devised and bequeathed all the rest and remainder of his estate, real and personal, to be divided into three equal parts, one of which parts he gave to his wife absolutely, and the other two-thirds he gave to his two children in equal parts, in trust for life, with remainder to their children. The estate of the father of the testator was settled after the death of George, and the proceeds of that estate, both real and personal, (with the exception of some railroad stock, distributed in the life-time of George,) were distributed, and the portion thereof distributed as George’s share was paid over in equal parts to Joseph Gelbach and Elizabeth Shively, on account of the legacies to them under their brother’s will.

The amounts received, however, from the estate of the father, was not equal to the amount mentioned in the bequests to them by the brother; and they now claim that the balance of such amounts shall he made up from the general personal estate of George, the testator. And whether such claim can be maintained, depends upon the nature and distinctive character of the bequests — whether they are so far of a specific character as to be exclusively dependent for their payment upon the sufficiency of the estate or fund referred to as the source of payment, and out of which the amounts were given, or whether they are of the character denominated demonstrative -legacies P ⁵⁰¹ Ordinarily, a legacy of a sum of money is a general legacy ; but where a particular sum is given, with reference to a particular fund for payment, such legacy is denominated in the law a demonstrative legacy ; and such legacy is so far general, and differs so materially in effect from one properly specific, that if the fund be called in or fail, or prove to be insufficient, the legatee will not be deprived of his legacy, but he will be permitted to receive it out of the general assets of the estate. Dugan vs. Hollins, 11 Md., 77 . But such legacy is so far specific that it will not be liable to abate with general legacies, upon a deficiency of assets, except to the extent that it is to be treated as a general legacy, after the application of the fund designated for its payment.

Mullins vs. Smith, 1 Drew. & Sm., 204; 2 Wm’s Ex’rs, 995. The authorities seem to be clear in