Kunkel v. Macgill

Robinson, J., delivered the opinion of the Court. The controversy in this case arises upon the construction of the following bequest: “ I give and bequeath to my daughter Mary E. Kunkel five thousand dollars Northern Central Railroad Bonds; also thirty shares of Frederick and Woodsborough Turnpike Road Company stock; also twenty shares of the Philadelphia, Wilmington and Baltimore Railroad Company ; also five thousand dollars of the Wilmington, Columbia and Augusta Railroad Bonds; also two hundred and thirty-seven shares of the Baltimore and Reisterstown Turnpike Road Company; also my sewing machine,” The will was executed on the 18th of. November, 18⁷⁶, and on the 1st of December, thirteen days after its- execution, the testator died. Among his effects were found five bonds of the Wilmington, Columbia and Augusta Railroad Company, each of the denomination or face value of $1000, the market value of which, however, according to the proof was about thirty cents in the dollar.

The appellants contend that the legacy is one of five thousand dollars in value, and must be construed, either as a bequest of $5000 in money with the Wilmington, ¹²² Columbia and Augusta Railroad bonds demonstrated as tbe fund, primarily charged with the payment thereof; or as a bequest of $5000 worth of such bonds, with direction to the executors, to purchase for the legatee, bonds of said company to the value of $5000. On the other hand, the appellees insist that it is a legacy of bonds of the railroad company of the face value of $5000, and that the bequest is gratified by the delivery to the legatee of five one thousand dollar bonds of said company. The question then is, whether this bequest, when construed in connection with other parts of the will, is to be considered as a general demonstrative or specific legacy ? Ordinarily there is not much difficulty in determining to which of these classes a legacy belongs.

If the testator bequeaths a specific thing as distinguished from all others of its kind, as money in a certain bag, or my Maryland State bonds, such a legacy it is clear, is specific, and the legatee is entitled to the thing bequeathed. Where, however, the bequest is of a sum of money, or of shares of stock, without further description or reference, and which may be satisfied by the delivery to the legatee of any stock of the kind designated, such a legacy is general. A demonstrative legacy is in the nature of a general legacy, with a certain fund pointed out for its payment, as a gift of $1000 to be paid out of the fund due by A.; and if the fund thus designated fails, the legatee is entitled to be paid out of the general assets belonging to the estate. Kirby vs. Potter, 4 Vesey, Jr., 748; Sibley vs. Perry, 7 Ves., 522; LeGrice vs. Finch, 3 Merivale, 50; Giddings vs. Seward, 16 New York, 365; Welsh’s Appeal, 28 Penn.

St., (4 Casey,) 363. To each of these classes however, certain legal incidents attach, and the difficulty in determining to which class ¹²³ the legacy in many cases belongs, is mainly owing to the efforts on the part of Courts to avoid the hardships growing out of such incidents. This is strikingly illustrated in the bequest of the shares of canal stock in Robinson vs. Addison, 2 Beav., 521. If the legacy is to he considered specific, then in the event of the testator’s parting with the thing or property bequeathed, or if- from any cause it should he lost or destroyed, the legacy fails.

Then again, such legacies are not liable to abatement with general legacies, nor are they liable to contribution towards the payment of debts. And hence the inclination on the part of Courts to construe legacies as general, unless a contrary intention plainly appears. But however strong may he this inclination, and into whatever refinements this course of judicial decision may have led, all the cases agree that the governing principle in this as in all other questions upon the constructions of wills is the testator’s intention, and if it appears either from the terms of the bequest itself when separately considered ;■ or when construed in connection with the rest of the will, that he meant to give the specific thing, such intention must prevail. So the question in this case is narrowed down to this, does it appear from the face of the entire will, that the testator intended to give to his daughter, the five railroad bonds of the Wilmington, Columbia and Augusta Railroad, each of the denomination or face value of $1000, which were found in his possession at the time of his death, or did he mean to give to her $5000 in money, with these bonds designated as the fund primarily liable for the payment of the same, and the deficiency, if any, to he paid out of the general assets of his estate, or did he mean to give to her $5000 worth of such bonds P Government securities, bonds and shares of stock of corporations, it is admitted, may he specifically bequeathed.

The words “my,” or “in my possession,” of “standing ¹²⁴ in my name,” and other like expressions, referring to the corpus of the fund, have generally been relied on as showing such intention. Barton vs. Cook, 5 Ves., 461; Norris vs. Harrison, 2 Madd., 280; Choat vs. Yeats, 2 Jac. & Walk., 102. None of these terms are affixed to the Wilmington, Columbia and Augusta Railroad bonds in this bequest, and in view of the decision in