Hart v. Brown

145 Ga. 140 | Ga. | 1916

Lumpkin, J.’

(After stating the foregoing facts.) The Civil Code (1910), § 3902, declares as follows: “Legacies may be either general or specific. A specific legacy is one which operates on property particularly designated. A gift of money to be paid from a specified fund is nevertheless a general legacy.” A pecuniary legacy, with the addition of a demonstrative statement or direction as to the fund from which it is to be paid, will ordinarily be construed to be a general, rather than a specific, legacy; the legacy being considered to be of the sum named, and the demonstrative clause as pointing out the primary source of payment, but not the exclusive means, if such fund should not be sufficient. Hutchinson v. Fuller, 75 Ga. 88; Thompson v. Stephens, 138 Ga. 205, 208 (75 S. E. 136). And this accords with the code section above quoted. Nevertheless a testator may, if he sees fit, bequeath all of a particular fund, in a purse, or a bank, which is separate from other funds, and may employ such language as to show that he creates a specific legacy of that particular fund, rather than a legacy of a definite amount, to be paid from a specific fund. In Tennille v. Phelps, 49 Ga. 532, 541, it was said that undoubtedly he may so charge a money legacy upon a particular fund as to make the legacy follow the fate of the fund. Ezell v. Head, 99 Ga. 560 (27 S. E. 720); Smith’s Appeal, 103 Pa. 559; Towle v. Swasey, 106 Mass. 100.

Were the legacies involved in the present case of certain sums of money, with a demonstrative clause or direction that such sums should be paid from a specified fund; or were they specific legacies of certain distinct funds themselves? The testator bequeathed to his two grandchildren the interest on “the following amounts of cash money now on deposit, as follows:” $3000 with the bank of I. C. Plant’s Son, and $2000 in the Exchange Bank, both at Macon, 6a., “as shown by the deposit book issued to' me by said banks.” The agreed statement of facts does not show the amounts on deposit in the two banks at the time when the will was made. But, in the absence of any evidence to the contrary, the language of the testator indicates that he then had on deposit at interest $3000 in one of the named banks, and $2000 in the other. He refers to such amounts as “now on deposit,” and undertakes to identify such deposits by the entries on his deposit books. It was the interest derived from these deposits, not on $5000 generally, which he bequeathed in the fourth item, and which he authorized his executors to receive, give receipts for, and pay over to his two grandchildren. Moreover, in certain contingencies, he authorized his executor to withdraw these particular deposits from the named banks, and to deposit them in another bank at interest. He was providing in regard to these two deposits as special funds, segregated from other funds, and to be dealt with, as to preservation and the collection and payment of interest, apart from other funds which he might have at his death. By the fifth item he declared that, one year after his death, his two grandchildren should have, to be equally divided between them, out of the bank of* I. C. Plant’s Son the sum of one thousand dollars, and thereafter every two years the sum of one thousand dollars, “until the amounts mentioned in item four of this will are exhausted.” Here the first one thousand dollars was specifically to be had from the bank of I. C. Plant’s Son. What amounts were to be exhausted by the payments thus provided for? Clearly the two deposits which had been identified and on which interest was to be collected and paid to the two legatees. When the will was made there were these two deposits drawing interest, which the testator undertook to describe separately from any other funds, to provide for their preservation, and for the collection and payment of the interest on them to his two grandchildren, and to have the corpus of such deposits withdrawn from the banks in installments and paid to the same legatees. The provisions so made are, inconsistent with the idea that the testator intended to give to such legatees fixed sums of money, and merely to direct the fund from which such amounts should be paid.

The cases of bequests of stated sums, described as then invested in a certain way, or of a certain amount forming part of a deposit, or of notes to a certain amount for the purpose of purchasing a plantation (Smith v. Smith, 23 Ga. 21), are not controlling here.

The trial court properly held that the legacies involved in this case were specific. He also correctly declared that, whatever the ruling might be on the subject discussed, no ground for the grant of an injunction was shown.

Judgment afirmad.

All the Justices concur.