37 F. 750 | U.S. Circuit Court for the District of Southern New York | 1889
These actions involve the rights of the complainants, respectively, to legacies of $50,000, bequeathed to them for charitable objects by the will of Gaza way B. Lamar, deceased. The will was executed September 28, 1872, and at that time the testator owned real and personal property in possession, and had besides certain claims for a large amount against the government of the United States for cotton which had been seized and sold by its officers during the war of the Rebellion, which' claims were then being prosecuted for collection. The will, by the first
Applying the familiar rule that a will speaks as of the time of the death of the testator, and not as of the time of its date, the second clause of the present instrument could be interpreted to mean that all the property which might belong to the testator at the time of his death, excepting only such cotton claims as he should ihen have, is to be divided by the executors into four parts, to be distributed for the benefit of his children. Consequently, in the absence of any other language or provision in the will to limit or control the meaning of the clause, according to this canon of interpretation, the provision would require the executors to include in the property to be distributed to the testator’s children all the property and assets belonging to him at the time of his death, excepting such only as might exist in the form of outstanding and uncollected demands against the government of the United States. This view would be fatal to the claims of the complainants; but it does not seem to be the reasonable one. It seems very plain that when by that clause the testator directed his executors to divide for the benefit of his children all the prop
“The distinction seems to be this: If a legacy be given with reference to a particular fund only, as pointing out a convenient mode of payment, it is considered demonstrative, and the legatee will not be disappointed, though the fund totally fails. But when the gift is of a fund itself, in whole or jn part, or is so charged upon the object made subject to it as to show an intent to burden that object alone with its payment, it is specific.”
Upon the authorities, it is entirely clear that the legacies to the complainants do not fall within the class of demonstrative legacies. They are legacies of §50,000, payable exclusively out of the amount to be collected from the cotton claims by the executors; they are a gift out of a specified fund, and not otherwise. The will, in effect, gives the cotton claims to the executors, in trust to collect them, appropriate the proceeds to a distinct fund, and apply $200,000 of the fund pursuant to the directions of clauses 3, 4, 5, and 6, and the residue, if any', to the complainants and other legatees. The bequest cannot take effect except as to the claims which were not collected before the testator’s death, because there was such a change in the subject-matter as to annul the gift to the executors in trust. As to the collected claims, there was nothing in existence in respect to which the trusts imposed by the will upon the executors could attach. The case is directly met by the observations of Lord Thurlow in Humphreys v. Humphreys, 2 Cox, 185, that—
“The only rule to be adhered to is to see whether the subject of the specific bequest remained in specie at the time of the testator’s death; for, if it did not, then there must be an end to the bequest; and the idea of discussing what were the particular motives and intention of the testator in each case in destroying the subject of the bequest would be productive of endless uncertainty and confusion.”
So far as the authorities which are cited for the complainants declare that bequests by which the collections or proceeds, or the amount to be received from a particular claim or fund, are given to legatees, are not defeated when the proceeds are received by the testator in his life-time, and have been kept by him so as to he distinguishable from the rest of his estate, they are acceded to as undoubtedly correct. They proceed