Weed v. Hoge

Prentice, J. The testatrix left an estate insufficient to satisfy the benefactions contained in her will. Some of her gifts must fail in part at least. What ones fall into this class, and the extent of the failure which will attend those which do so, depends upon the character of certain gifts in favor of her husband. In so far as these are specific legacies, the husband will be entitled to take without abatement. In so far as they are general, they must share, with the other general legacies which the will contains, in such reduction as may prove to be necessary. In so far as any of them are to be regarded as devises and not legacies, they must be dealt with in view of § 295 of the General Statutes, which makes all pecuniary legacies, in the event that the personal estate of the testator is insufficient for their payment, a charge on his real estate not specifically described and devised, unless otherwise directed in the will. Certain of the general legatees challenge, for one cause or another, the right which the husband asserts to take without charge or abatement what is in terms given to him, and thus seek to relieve their situation in the distribution of the estate from the consequences which would result to them if such a right were recognized. Questions are thus *494 presented as to each of the gifts to the husband excepting only the pecuniary legacy of $2,500. The gift contained in the tenth paragraph is, through the application of the doctrine of equitable conversion, to be regarded as one of personalty and not of realty. The conditions which justify the husband in invoking this equitable principle are clearly present. Emery v. Cooley, 83 Conn. 235, 238, 76 Atl. 529; Bates v. Spooner, 75 Conn. 501, 508, 54 Atl. 305; Ritch v. Talbot, 74 Conn. 137, 144, 50 Atl. 42; Duffield v. Pike, 71 Conn. 521, 525, 42 Atl. 641. The only interest which Mrs. Weed had in real estate situated on West 143d Street, New York City, was a mortgage interest. This was personal estate by the law of both New York and this State. Trimm v. Marsh, 54 N. Y. 599, 604; Waterbury Savings Bank v. Lawler, 46 Conn. 243, 245; McKelvey v. Creevey, 72 Conn. 464, 467, 45 Atl. 4. It follows from these conclusions (1) that the questions presented for determination are to be resolved upon the basis that the several gifts to the husband in dispute are legacies; and (2) that § 295 of the General Statutes is not pertinent to their solution. The fundamental distinction between general and specific legacies is that the former may be satisfied out of the general assets of the testator’s estate without regard to any particular fund, thing, or things, while the latter are gifts of particular specified things, or of the proceeds of the sale of such things, or of a specific fund or a defined portion thereof. In the case of the former, there is no intent on the part of the testator to make a specific disposition of particular assets of his estate as such; in the latter case, the intent is that the attempted donation shall be satisfied by the delivery of specific property forming a part of the estate, and so described as to be identified as the subject of the gift, and in no *495 other way. If the specified property is not owned by the testator at his death, the legatee, in the case of a specific legacy, takes nothing. He has no claim upon the general assets. Brainerd v. Cowdrey, 16 Conn. 1, 6; Crawford v. McCarthy, 159 N. Y. 514, 518, 54 N. E. 277; Bradford v. Haynes, 20 Me. 105, 108; Towle v. Swasey, 106 Mass. 100, 108; Page on Wills, § 768. A general legacy has no reference to the actual state of the testator’s property, it being only supposed that he has sufficient property which, being realized upon, will procure for the legatee that which is given him; while in the case of a specific bequest it must be a part of the testator’s property itself. Bothamley v. Sherson, L. R. 20 Eq. 304. A specific legacy is the gift of something “which a testator, identifying it by a sufficient description, and manifesting an intention that it should be enjoyed or taken in the state or condition indicated by that description, separates in favor of a particular legatee, from the general mass of his personal estate.” Robertson v. Broadbent, L. R. 8 App. Cas. 812, 815. Tried by this test, the gift of twenty twenty first (fj) of the proceeds of the Connecticut real estate, contained in the tenth clause of the will, is beyond question specific. A gift of the proceeds of the sale of specific real estate or chattels is specific. Page v. Leapingwell, 18 Ves. Jr. 463, 465; In re Jeffery’s Trusts, L. R. 2 Eq. 68; Martin, Petitioner, 25 R. I. 1, 54 Atl. 589; Boston Safe Deposit & Trust Co. v. Plummer, 142 Mass. 257, 261, 8 N. E. 51. The gift of the testatrix’s right, title and interest in the West 143d Street property in New York City, contained in the fourth clause of the codicil, presents two possible questions: one as to the sufficiency of the description of the real estate, and the other as to the adequacy of the language of the gift to carry the mortgage interest which alone the testatrix had. *496 The property is sufficiently described to establish its identity and satisfy the requirements of a valid gift by will. Harman v. Gurner, 35 Beav. 478; Newton v. Lucas, 6 Simons, 54; Gauntlett v. Carter, 17 Beav. 586; Martin v. Smith, 124 Mass. 111. A devise in form of particular lands of which the testator is mortgagee only passes the mortgage interest as being that which he must have intended to be the subject of his gift. Clarke v. Abbot, Barn. Ch. 457, 461; Woodhouse v. Meredith, 1 Merivale, 450, 456. The same general principle has been applied where, under like conditions, the testator had in fact only an interest in the proceeds of a sale. Devenish v. Pester, 72 L. T. R. (N. S.) 816; Cooper v. Martin, L. R. 3 Ch. App. (1867-8) 47, 55; In re Glassington, L. R. 2 Ch. Div. (1906) 305. "The unmistakable reference to the lands as those comprised in the settlement . . . shows a clear intention to dispose of the property to which he was entitled under the trusts of that instrument, and, although he mistook the nature of his interest in that property, a gift of it as land, instead of money, arising from its sale, does not prevent his interest in it from passing to the person whom he clearly intended should take what he was himself entitled to under the settlement, to which he pointedly refers. What, after all, is a devise of land? It is only a devise of such estate or interest as the devisor has in the land, and prima facie whatever estate or interest the testator has in land will pass under a devise of it by that name, if it is specifically referred to so as to show that the testator had that particular land in his mind and if there is nothing else to answer the description.” Devenish v. Pester, 72 L. T. R. (N. S.) 816, 818. In the present case the will does not in terms purport to give the land, but the testatrix’s right, title and interest in it. She had no right, title or interest in any *497 other real estate answering in any way to the description of the will. There is nothing which by possibility could have been intended as the subject of the attempted gift except the mortgage debt and security in question. Her manifest intention can be effectuated only by treating that as the subject of the bequest. Su,ch a bequest is, of course, specific. Wheeler v. Wood, 104 Mich. 414, 417, 62 N. W. 577. The bequest of the rest, residue and remainder of the testatrix’s “personal effects, including furniture, bric-abrac, etc.,” follows the gift, in earlier paragraphs of the will, of a few particularly enumerated articles. As to those not thus disposed of which fall within the description of the testatrix, the bequest is beyond question specific. It was her unmistakable intention that her husband should have the very articles of the kind enumerated of which she should die possessed and that he should have nothing else in substitution for them. Her intent could not be satisfied save by the delivery to her husband of the particular things described forming a part of her estate at her decease, and the gift of them had no relation to her general assets so that they might be chargeable in any event for the delivery of like things or their equivalent. In the following cases it was so held under substantially similar conditions: Borden v. Jenks, 140 Mass. 562, 5 N. E. 623; Tomlinson v. Bury, 145 Mass. 346, 14 N. E. 137; McFadden v. Hefley, 28 S. Car. 317, 5 S. E. 812; McKidd v. Brown, 5 Grant’s Ch. (Upp. Can.) 633; Bleeker v. White, 23 Grant’s Ch. (Upp. Can.) 163; Rudd v. Harper, 16 Ont. Rep. (Can.) 422. See also to the same general effect, Platt v. Platt, 42 Conn. 330, 346. The fact that the descriptive language may include numerous articles does not render the bequest any less specific. Tomlinson v. Bury, 145 Mass. 346, 348, 14 N. E. 137. The Superior Court is advised that all three of the *498 gifts to Edward Franklin Weed, 'the husband of the testatrix, concerning which advice is asked, are specific legacies, and that the said Weed is entitled to receive what is thereby given without abatement in favor of, or charge on account of, the general legacies contained in the will. No costs in this court will be taxed in favor of any of the parties. In this opinion the other judges concurred.