90 N.W. 804 | N.D. | 1903
This proceeding was instituted by one Lillian Adair, as petitioner, in the county court of Ransom county. In a petition she prays said court to order the executors of the last will and testament of her father, James Adair, to pay to her the sum of $500-bequeathed to her in a codicil to said will. The petition states the following facts: That the testator, James Adair, died on the 19th day of April, 1897, in Presque Isle, in the state of Maine, and was at the time of his said death a resident of Ransom county, N. D. That Amanda M. Adair is her mother, and was the first wife of said decedent, and that John Adair and James Adair are her brothers, and the sons of said decedent and Amanda M. Adair. That Laurastina P>. Adair is the second wife of said James Adair, deceased, and that Birdie May Adair is the daughter of said deceased and Laurastina B. Adair. That Charles E. Pierson and Gilbert La Du are the executors of the last will and testament: of said James Adair, deceased. That said last will and testament of said James Adair and the codicil thereto was duly admitted to-probate in the county court of said county on June 21, 1897. That the codicil to said will was in part in the following words, to-wit: “In the name of God, Amen. This codicil, made this ninth day of January, in the year of our Lord one thousand eight hundred and ninety-seven, witnesseth: That I, James Adair, being of'
The defendants contend that the petition should not have been granted for two reasons, viz.: (1) That it was not the intention of the testator, as gathered from the will and codicil, construed together, to bequeath said $500 to his daughter Lillian, but that it was the intention of said testator to bequeath $500 to his wife out of the policy bequeathed to his daughter in the will. (2) That the legacy of the $500 is a specific legacy, and the fund out of which it was to be paid having failed, such legacy cannot be paid out of the general property or assets of the estate. On reading the will and the codicil, it will be observed that the testator never bequeathed to his wife any legacy of $1,000, or any other specific sum. The wife and daughter Birdie May were joint residuary legatees of all the property left by the testator after certain other specific béquests had been made. The appellants' contend that the decedent never intended to bequeath $500 to his daughter Lillian in addition to the bequest of the $1,000 to be paid out of the policy in the Massachusetts Benefit Life Association. To determine what
The only remaining question to be determined is whether the legacy of the $500 is a specific, demonstrative, or general legacy. Section 3719, Rev. Codes 1899, designates legacies, according to their nature, into five classes, — specific, demonstrative, annuities, residuary, and general. These are defined by said section as follows : A legacy of a particular thing specified and distinguished from all others of the same kind belonging to the testator is specific. If such legacy fail, resort cannot be had to the other property of the testator. A legacy is demonstrative when the particular fund or personal property is pointed out from which it is to be taken or paid. If such fund or property fail in whole or in part, resort may be had to the general assets, as in case of a general legacy. After defining an annuity and a residuary legacy, this section defines all other legacies as general legacies. The definitions of these several legacies as given in the Code differ in no respect from the common-law definitions thereof. The appellants contend that this legacy is a specific one. The petitioner or respondent contends that it is either a demonstrative or a general legacy. For the purposes of this appeal we need only determine whether it comes within the definition of a specific legacy. Whether it be a demonstrative or a general legacy is immaterial, so far as a decision of this case is concerned. If it is not a specific legacy, the judgment must be affirmed whether it be general or demonstrative. A specific legacy is a bequest of a particular or specified article of personal property distinguished from all other articles of personal property belonging to the testator. A bequest of a coin particularly marked, or of a money deposit in a particular bank, or of specified shares of bank or other corporation stock, or of a particular debt due from a particular person, or of a particular mortgage described, are instances of a specific legacy. Wheeler v. Wood, 104 Mich. 414, 62 N. W. Rep. 577; In re Apple’s Estate, 66 Cal. 432, 6 Pac. Rep. 7; 2 Bouv. Law Dict. p. 161. There is no doubt that a bequest of a certain number of dollars is a general bequest. In this case the particular fund out of which it is claimed this $500 bequest was to be paid is the $1,000 willed to the wife as set forth in the codicil. As said before, no such specific sum had ever been willed to the wife, so far as shown. The language used in the codicil in reference to this $1,000 does not specify that such sum was to be paid out of any particular fund, nor is such $1,000 in any way distinguished as having been willed as part of specific money or the proceeds of
The judgment of the district court is affirmed.