Blackstone against Blackstone, 3 Watts 335

The opinion of the Court was delivered by Gibson, C. J. The modern decisions on this head can be reconciled to the doctrine of Swinburne but by understanding him to speak exclusively in reference to pecuniary legacies.

It is certainly now held for clear law, that a legacy properly specific, and not merely specific in its nature by being charged on a specific fund, is adeemed, or, to speak more properly, extinguished, by any change of its state or form, effected, not by fraud or operation of law, but by the act of the testator, whatever be its purpose, which makes the corpus of the legacy, at his death, a different thing from what is indicated by the terms of the description.

Swinburne recognizes no distinction in this respect between pecuniary and specific legacies of debts, annuities or stock; but puts the question of ademption exclusively on the fact of intention, which, in respect to this particular sort of ademption, is an immaterial circumstance. Thus he says (part 7,

section 20), that the bequest of a bond or debt is not extinguished by voluntary payment of it; or even by payment exacted, if it appear by the testator’s declarations or actions that no extinguishment was contemplated. The cases cited in illustration of his position by his learned editor and annotator, are undoubted instances of the pecuniary class. The bequest in Orme v.

Smith, 2 Vern. 681, more fully stated in Mr Powell’s note, was certainly such, being a bequest of 500 pounds in numero ; “ that is to say,” proceeds the testator, “ the bond and judgment he gave me for 400 pounds, and 100 pounds in money.” The bond and judgment were evidently not treated as a specific subject of the testator’s bounty, but as the anticipated medium of its satisfaction ; and the receipt of the debt by him seems therefore to have been properly disregarded as a proof of ademption. And in Thomond v. Suffolk, 1 P.

Wms 461, where the testator had bequeathed two several bond debts of 2000 pounds each, with proviso, “ that in case all or any part of these two sums should be paid in before the testatrix’s death, then the said testatrix gives to the said legatee 4000 pounds, or so much money as the principal money so paid in should amount to,” it was held that a release of one of the debts was not an ademption pro tanto, and evidently because the bonds were spoken Of but as a fund, the object being to secure the legacy from failing in any event.

For the same reason a bequest of 40 pounds out of a debt due the testatrix was held, in Ford v. Fleming, 2 P. Wms 469, not to be adeemed by being called in, it being presumed that the debt was considered to be in danger. The question was put on the ground of intention, and the legacy was a pecuniary one for reasons that will appear in the cases to be presently quoted. In Rider v. Wager, Ibid. 329, where the legacy was part of a debt, the decree that a receipt of the debt in the testator’s lifetime did not defeat the bequest, was rested expressly on the difference between pecuniary and specific legacies.

Finally, in Partridge v. Partridge, Cases temp. Talb. 226, the testator having had 1800 pounds Capital South Sea stock at the date of his will, by which he bequeathed 1000 pounds of it, but having subsequently reduced the quantity to 200 po'unds, and then increased it to 1600 pounds, three-fourths of which were turned into annuities by an intervening act of parliament, it was determined that neither the intermediate disposal, nor the involuntary transmutation, was an ademption of any part of the legacy.

In respect to this case it is to be remarked that the bequest was not of the identical stock had at the date of the will, which is material (Roper on Legacies 239), and that the stock or its substitute had at the death equally answered the description ; that the transmutation being by operation of law would not have affected the question of ademption even in the case of a specific legacy; and that for these reasons Lord Talbot considered the legacy to be a pecuniary one. In Swinburne’s day, then, the principles of the present question had not been carried out.

That the distinction since taken between general and specific bequests of money or securities should not be noticed in his work, will not seem strange to those who consider that it was written two hundred and fifty years ago, when the distinction was unknown. But that the annihilation of a specific legacy, or such a change in its state as makes it another thing, annuls the bequest, for reasons paramount to considerations of intention, is now too firmly settled to be questioned. The principle is definitively established by Sleech v. Thornington, 2 Ves. 561; Drinkwater v. Falconer, Ibid. 623; Humphreys v.

Humphreys, 2 Cox 184, and Birch v. Baker, Mosely 373. The remaining question is, whether the legacy before us is a specific one. The bequest is of “ all my two hundred and fifty shares of capital stock which I hold in the Union Bank of Pennsylvania.” The “ which I hold” certainly individuate the stock as a corpus with as much precision as would the words “ standing in my name,” which made the bequest specific in Sleech v. Thornington; or the words, “all the stock which I have in the three per cents,” which was allowed to have the same effect in Humphreys v.

Humphreys; and it is even more specific than the words in Drinkwater v. Falconer, “ to be paid out of my dividends of 400 pounds in the joint stock of South Sea annuities, now standing in the company’s books in my name,” which were held to be sufficiently so, though the stock was described as a fund for payment, because the residue was given in nearly the same terms, and charged with the preceding bequest.

It is certainly true that the presumption of intention is favourable to general legacies in the first instance, and that it requires clear proofs of a restrictive intention to repel it; but the word “ my” prefixed to the word “ annuities” or stoclr, has always been held sufficient of itself to do so, though the mere possession of such annuities or stock at the date of the will, without words of reference to fix its identity as the subject of bequest, has come short of it. But what is decisive here is, that the stock was directed to be “ transferred” by the executors to the legatees on their arrival at full age.

Beside the dividend accruing at the testator’s death is given in the same way : all which shows it to have been his expectation and intent to die possessed of this identical stock, and to transmit it specifically to the legatees. The legacy then was a specific one; and whatever was the motive for its extinction or change of being] whether to destroy it or to preserve it for the legatees; and whatever be the evidence of such motive; it ceased to have the specific existence ascribed to it in the will, and neither the bond taken as a substitute for it, nor its value, can be demanded from the testator’s estate.

Judgment below reversed, and judgment here for defendants. Justice Kennedy took no

part in the decision, having been counsel in the cause. Justice Huston was absent in consequence of indisposition. See, to the same effect, Ashburner v. M’Guire, 2 Bro. Ch. 108. See also Barton v. Cook, 5 Ves. 461; Norris v. Harrison, 2 Madd. 280; and Choat v. Yeates, 2 Jacob & W. 102.