5 S.E.2d 636 | Ga. | 1939
Where described property is particularly designated in a will, even though the designation be in a residuary clause, it will be treated as a specific devise to the named legatee, if it is clear from the will that the testator intended a segregation of this particular property apart from his other estate being devised for the benefit of this named legatee.
Those dissatisfied with the judgment of the lower court contend that the property specifically designated and described in item 10 of the will does not pass as a specific devise by virtue of its particular designation, but that, although specifically pointed out and described with particularity, it is merely a part of the general residuum going to this particular legatee, since the language so describing it is found in context with and as a part of the same sentence providing for a residuary estate. This item, as contended by counsel, undoubtedly constitutes Henry G. Stoffregen the residuary legatee under the will. The question for decision is, did it do more than that? Did it, in addition to providing that he should receive whatever was left over in the estate after the payment of debts, costs of administration, and other legacies, also provide a specific devise to him of the particular property so described and pointed out in this item? Since it would be freely admitted that there was a sufficient description and designation of the property to permit its segregation from all other property and its separate delivery to the legatees, we think the question may be approached upon the basis of whether its inclusion in this residuary clause is sufficient to characterize it as a general legacy. Is it such *178 an "enumeration" as is sometimes used in such residuary clauses for the purpose of particularizing and illustrating what, in contemplation of the testator, would fall into this classification; or did the testator by so designating it intend that the legatee should receive this property at all events, and in addition to it whatever else might be left for the residuum? Our Code divides legacies into two classes, general and specific, and recognizes demonstrative and residuary legacies. "A specific legacy is a gift by will of property which is particularly designated. . . A general legacy or devise is one which does not direct the delivery of any particular property; it is not limited to any particular asset, and may be satisfied out of any property of the same general character belonging to the estate of the testator, and not otherwise disposed of in the will. . . A residuary legacy is a general legacy into which fall all the assets of the estate after the satisfaction of all other legacies and the payment of all debts of the estate and all costs of administration." Redfearn on Wills and Administration (rev. ed.), 234, § 144. "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." Code, § 113-808.
Running somewhat as a current through all of the text writings on the subject, and from the early cases, the definitions of a specific bequest or devise have been quite uniform and have given as its particular characteristic that it gives or devises to the named legatee a particular article or item of property owned by the testator or in some instances to be acquired by him, which is identified and distinguished from all others of the same nature, and which, as stated, may be segregated from the mass of the testator's other property or estate. See 28 Rawle C. L. § 263, and cit.; 69 C. J. 919, § 2085; Jarman on Wills (6th ed.), 938. "If the specified things are so enumerated as to distinguish them from the residue, the gift is specific." 69 C. J. 937. "Where such was the intention of the testator a gift of all his personal property including enumerated particular and excluding property otherwise bequeathed is a specific legacy." 69 C. J. 937. Other rules, of course, must be kept in mind; for in determining whether a particular bequest is general or special, resort must be had, not alone to the particular item creating it, but to the will as a whole, in order to ascertain the intention *179
of the testator, which, if it may be there discovered, must control. See 28 Rawle C. L. § 263; Code, § 113-806; Owens v.Citizens Southern National Bank,
While the particular question does not seem to have been often dealt with in other jurisdictions, we do find what seems to be a reliable rule stated in 11 Ann. Cases, 765, in the note to Matter of Estate of Painter,
To illustrate the operation of this rule of construction, which of course is subject to the prime requirement to be found everywhere — the ascertainment of the intention of the testator, and to illustrate the language in contrast which would make the legacy general rather than specific, it appears that in the case of Walker's Estate, 3 Rawle (Penn.), 229, the testator bequeathed to the legatee "all his household goods and furniture, moneys, bonds, mortgages, outstanding debts due and owing to him, and all his personal estate, of what kind or nature soever." The court said: "He first enumerates the particulars of which his personal property consists, and then closes the sentence with a sweeping disposition of all his personal estate. It is as strong, but not more so, as if he had said, I give all my personal estate of what kind or nature soever, to Elizabeth Y. Walker. The enumeration of particulars does not affect the generality of the bequest." We believe the rule hereinabove stated to be sound, and we reach the conclusion that in holding that the particular property described in item 10 of the will was a specific devise, the judge ruled correctly. If the testator, after making other particular bequests, had intended merely to constitute his uncle as his general residuary legatee, there was certainly no need to make mention of this particular property. It would have passed to him (subject to abatement if the necessity should arise) without this particular designation. When he used the word "especially," and then described this property and with careful particularity identified it by reference to the deed under which it was held and to the record of this deed, we think the testator manifestly and clearly intended that this named legatee should receive from his estate this particular property. The fact that he also made him his residuary legatee, thus assuring that he would take in addition any residuum from property not otherwise devised, does not seem to us in any way to operate against this conclusion. It can not be doubted that if in a separate item this *182 property had been devised with the same particularity of description, it would have been a specific devise, and not a general legacy. It certainly may be segregated from the general mass of other property, and the legacy could be satisfied by delivery of the described property, and by that alone. It is our view that the intention of the testator is gratified by such a construction. The judgment of the lower court is accordingly
Affirmed. All the Justices concur, except Duckworth, J., whodissents.