Tifft against Porter, 8 N.Y. 516

Johnson, J. A legacy is general, when it is so given as not to amount to a bequest of a particular thing or money of the testator distinguished from all others of the same kind. It is specific, when it is a bequest of a specified part of the testator’s personal estate which is so distinguished. (Wms. on Ex. 838.) In those cases in which legacies of stocks or shares in public funds have been held to be specific, some expression has been found from which an intention to make the bequest of the particular shares of stock could be inferred.

Where, for instance, the testator has used such language as, “my shares,” or any other equivalent designation, it has been held sufficient. But' the mere possession by the testator at the date of his will of stock of equal or larger amount than the legacy, will not of itself make the bequest specific. (Wms. on Ex. 842; 1 Roper on Leg. 2067.) The cases of Davis v. Cain, 1 Iredell Eq. R. 309, and Robinson v. Addison, 2 Beav. 515, are directly in point.

In the first case the bequest was, “ 25 shares of the capital stock of the State Bank of North Carolina.” The testator, owned 25 such shares. ■ The. court say, “ The legacy is not specific. If he had said my 25 shares of bank stock it would have been a specific legacy.” The other case was a bequest of “ five and a half shares in the Leeds and Liverpool Canal and all benefit and advantage thereof.” The will contained two other bequests, each of five shares, in the same terms. At the time of making his will, testator owned fifteen and one half shares of said stock.

The only question was whether the legacies were specific. The master of the rolls, (Lord Langdale,) in giving his judgment said, “ In the gift the testator has used no words of description or reference by which it appears that he meant to give the specific and particular shares which he then had. Various arguments depending on the general scope and effect of the will were used for the purpose of showing that the testator, in giving the precise number of shares which he possessed, must have had those shares and none other in his contemplation, and consequently must have meant specific gifts of them.

It is however clear that the testator, if he had meant to give only the shares which he had, might have designated them as his: that the mere circumstance of the testator having at the date of his will, a particular property of equal amount to the bequests of the like property which he has given, without designating it as the same, is not a ground upon which the court can conclude that the legacies are specific.” So in Partridge v. Partridge, Ca. temp.

Talbot, 226, a bequest of “ £1000 capital South Sea stock to wife for life with power of disposition among children,” although the testator when he made his will had more than that amount of stock, was held to be general and not specific. To the same effect are Simmons v. Vallance, 4 Bro. C. C. 345; and Sibley v. Perry, 7 Ves. 524.

This last case is worthy to be more particularly mentioned, because in it there was a direction’ to transfer £1000 stock in the public funds cailed the 3 per cent, consolidated within 3 months after testator’s decease,” and a similar direction “to deliver” is contained in the will- of the testator in this case. Lord Eldon held the bequest not specific. In Ashton v. Ashton, Ca. temp.

Talb. 152, a bequest of £6000 South Sea annuities in trust to sell and lay out the proceeds, was held specific; the direction to sell being inconsistent with giving such a meaning to the words as would authorize the executors to buv for the purpose of selling. The same argument plainly does not apply to a direction to transfer. That would be alike appropriate whether the testator had, or had not, the stock. We were referred upon the argument to Everitt v. Lane, (2 Ire. Eq. R. 548,) which holds a contrary doctrine.

Testator bequeathed to his wife, “ one year’s provisions, five head of horses, her choice; one carriage, five sets of farming tools, her choice; one set of blacksmith’s tools, to her and her heirs and assigns forever.” The court, after-observing that the expression, “ her choice,” renders the bequests specific to which it was attached, say that the “ one carriage” and the “ one set of blacksmith’s tools,” intended by the testator, are put beyond doubt by the admitted fact that he had but one carriage and one set of blacksmith’s tools.

When upon the face of the will it appears that the testator meant to dispose of something in kind, in the application of the bequest to its subject matter, it may be shown that he had but one of the kind to dispose of. For this, Innes v. Johnson (4 Ves. 568,) is cited: but that case turned upon the point that the words, “ the said bond,” put it beyond doubt that the expression £300 upon bond was intended of a certain specific bond.

Now there was not in the will any thing to show that the expression “ one carriage,” meant any particular carriage, any more than there was to show that “ one year’s provisions” did not referió provisions then owned by him, and yet as to the latter the court held it general, while the former was held to be specific.” This case is in conflict with the other cases before cited, and ought not to be followed.

It is true that' the will of the testator in this case, after giving “ 240 shares of bank stock,” does refer to the bank stock above mentioned; but this expression seems to me as well applicable to such bank stock as the executors might purchase, as to that which the testator then had on hand.

It would, I think, be going too far upon an equivocal expression of this sort, to hold this to be a specific legacy, w-hich without it would clearly be general. (1 Rover on Leg. 213.) The inclination of the courts to hold legacies to be general, rather than specific, and on which the rule is based that to niake a legacy specific, its terms must clearly require such a construction, rests upon solid grounds.

The presumption is stronger that a testator intends some benefit to a legatee, than that he intends a benefit only upon the collateral condition that he shall remain till death, owner of the property bequeathed. The motives which ordinarily determine men in selecting legatees, are their feelings of regard, and the presumption of course is that their feelings continue and they are looked upon as likely to continue.

An intention of benefit being once expressed, to make its taking effect turn upon the contingency of the condition of the testator’s property being unchanged, instead of upon the continuance of the same feelings which in the first instance prompted the selection of the legatee, requires, as it ought, clear language to convey that intention. The rule as settled, accords best with the dictates of experience as to the probable purposes which actuate men in disposing of their property by will. The judgment at the general and special terms should be reversed, and a new trial granted, costs to abide the event.

Ruggles, Ch. J., and Jewett, Morse, and Gardiner, JJ., concurred in the opinion of Judge Johnson. Taggart, Willard and Mason, JJ., dissented.