33 Ala. 85 | Ala. | 1858
.—It is a clear and undisputed proposition of this case, that the appellee was entitled to the recovery which she obtained in the court below, if the legacy of twenty negroes to her in the will of her deceased husband was specific. If an executor derives profit by the labor or hiring of slaves specifically bequeathed, he is responsible to the legatee for their reasonable hire, unless the slaves are required in the general administration of the estate. The principle is, that “ specific legacies are considered as severed from the bulk of the testator’s property, by the operation of the will, from the death of the testator, and specifically appropriated, with their increase and emolument, to the benefit of the legatee, from that period.” If profit accrue to an estate by reason of the detention of specific legacies after they are due, it is a reasonable and just rule which gives such profit to the legatee; and, upon principle, it can make no difference, whether that profit consists of the interest upon stocks or the labor of slaves.—Keyes on Chattels, §§ 499, 500, 518, 519; 2 Wms. on Ex. 1221; 2 Lomax on Ex. (top 265,) marg. 152; 2 Roper on Leg. 1250.
There are three different classes into which legacies are divided; those classes are' denominated specific, demonstrative, and general, and each is distinguished from the other in the incidents which the law attaches to them respectively. A specific legacy is “ the bequest of a par
Where the bequest is of a part of a particular thing or money, ■■ h specified and distinguished from all others of the same kt ml—it is individualized, and susceptible of distinct idem ib cation ; and is, therefore, a specific legacy. On the other *¡:>.id, if the legacy is of a given quantity, and the in'.crtbui was merely to point out the particular fund or pi;< -¡ >e -t y by way of demonstrating whence the payment wuk to be derived, it is demonstrative.—See the authority^ above cited; also, Baliet’s appeal, 14 Penn. 45; Gallagher v. Gallagher, 6 Watts, 483; In re Barclay’s estate, 10 Penn. St. R. 387. Thus, a gift of so much stock, out of some :q.vc-'.fied stock, is a specific legacy; but a gift of so much v‘«rey, out of the particular stock, is a demonstrative leg jy.—Hoskings v. Nicholl, 1 Younge & Collyer,
The authorities show, that the gift of a part or residue of a particular debt is a'specific legacy.—Ford v. Flemming, 1 Eq. Cas. Abr. 302; Basan v. Brandon, 8 Simon, 171; 2 White & Tudor’s Lead. Cas. in Eq. pt. I, top pages 351, 352, 353, 354, 367. But a legacy of so much money, to be paid out of a debt, is demonstrative.—Campbell v. Graham, 1 Russ. & Myl. 453; Colville v. Middleton, 3 Beav. 57. A legacy to the testator’s son, of so many of his horses as should amount to eight hundred pounds, is specific.—Bichards v. Bichards, 9 Price, 219. So, also, a bequest of so much—“a part of my stock.”—Kirby v. Potter, 4 Vesey, 747; Davis v. Cain, 1 Iredell’s Eq. 304; Roper on Leg. 204. Several bequests of different amounts of South-sea stock, followed by a bequest of the regaining specified amount of South-sea stock standing in the testator’s name, were all regarded as specific, legacies. Sleech v. Thorington, 2 Vesey, sr. 560. So, gifts”of two different sums, out of a certain sum due on ¡a described bond, and a gift of the residue, specifying (Le amount, were all held to be specific legacies.—Badrick v. Stevens, 3 Brown’s C. C. 431. In North Carolina, ‡ legacy to a certain value, to be taken out of the testator’s notes, as soon after his death as it could be done, wás decided to be specific.—Perry v. Maxwell, 2 Dev. Eq. 487, 502. See, also, Ludlam’s estate, 1 Parsons’ Select Cas.in Eq. 116; Chanorth v. Beech, 4 Vesey, 556; Roberts v. Pocock, 4 Vesey, 149; Askburner v. Macguire, 2 Bro. C. C. 108; S. C., 2 White & Tudor’s L. C. in Eq. pt. I, and notes page (top) 346, marg. 201; Cogdell v. Cogdell, 3 Dess. 346; Walton v. Walton, 7 Johns. Ch. 258; Walls v. Stewart, 16 Penn. St. R. 275; Avelyn v. Ward, 1 Vesey sr. 419; Howe v. Earl of Dartmouth, 7 Vesey, 137; Stanley v. Potter, 2 Cox’s Ch. Cases, 180; Bethune v. Kennedy, 1 Myl. & Cr. 114.
The bequest here is of a part of the testator’#, slaves.
The judgment of the court below is affirmed.