67 Md. 498 | Md. | 1887
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
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
The authorities seem to be clear in holding that whether a legacy is to be treated as a demonstrative legacy, or as one dependent exclusively upon a particular fund for payment, is a question of construction, to be determined according to what may appear to have been the general intention of the testator. Creed vs. Creed, 11 Cl. & Finl., 509. For although the personal estate of the testator is the primary fund for the payment of legacies generally, particular legacies may be so provided for as to be charged upon a particular fund or estate exclusively. As was said by the Lord Chancellor, in Saville vs. Blacket, 1 P. Wms., 779, “it is possible for a legacy to be charged in such manner upon a certain fund, as that upon its failing, the legacy shall be lost.”
Here, the bequest is of a $1000 out of the testator’s share or portion of his father’s estate. Does this amount to anything more than a testamentary assignment or relinquishment of the testator’s interest in his father’s estate, to the extent of the legacies mentioned, in favor of his brother and sister, if his interest should prove to be of that amount ? The language of the bequests would seem
It is certainly true, as a general proposition, as was said by the Vice-Chancellor in Dicken vs. Edwards, 4 Hare, 276, that where a testator bequeaths a sum of money in such a manner as to show a separate and independent intention that the money shall be paid to the legatee at all events, that intention will not be held to be controlled merely by a direction in the will that the money is to be raised in a particular way, or out of a particular, fund. But where the legacy is so specific and so connected with the fund appointed for its payment as to give rise to the inference that the legacy would not have been given but for the fund as a means of payment, there the legacy will fail with the failure of the fund. Mann vs. Copland, 2 Madd., 223, 226; Dicken vs. Edwards, 4 Hare, 276; Creed vs. Creed,, 11 Cl. & Fin., 509. See, also, Hancox vs. Abbey, 11 Ves., 179.
In our opinion it is clear, that the legacies given to the brother and sister are not general legacies in the sense that they are, to any extent, payable out of the general personal estate of the testator, apart from the fund out of which they were made payable ; and that, to the extent of the deficiency of that fund to pay such legacies in full, they must fail.
It follows that the decree of the 28th of March, 1887, requiring the balance supposed to he due on the two legacies mentioned to he paid out of the general assets of the estate, must be reversed, and the cause be remanded.
Decree reversed, and cause remanded.