Bost v. . Morris

Adams, J. When the plaintiff brought suit for a construction of the will- it was found that the second item is the substantial ground of the controversy, the others being material only as they serve to reveal the testator’s intent. It was necessary to submit to the jury a single issue, the answer to which fixed the time when the appellee delivered to the plaintiff the list of stocks which she had selected. The date was 26 January, 1928; and after this finding the court adjudged that the legatee named in the second item is entitled to all the dividends on the selected stocks since the testator’s death, which occurred on 13 November, 1927. The appellants say that this part of the judgment is erroneous; that the appellee is not entitled to any dividend within one year from the day the testator died; and that the accrued dividends are a part of the residuary estate. This position is controverted by the appellee. The answer to the question at issue is dependent upon the nature of the bequest. It is contended by the appellants that the legacy in item two is general, and by the appellee that it is specific and includes all dividends accruing after the testator’s death. If the bequest is specific the appellee’s conclusion is correct and she is entitled to all dividends declared after 13 November, 1927. Turnage v. Turnage, 42 N. C., 127; Beasley v. Knox, 58 N. C., 1; Harrell v. Davenport, ibid., 4. A general legacy is one which is chargeable generally upon the testator’s personal estate and is not so given as to be distinguishable from *37 other parts of tbe estate; or, when it is so given as not to amount to a bequest of a specific part of the testator’s personal estate. A specific legacy is the bequest of a particular thing or money specified and distinguished from all of the same kind, as of' a horse, a piece of plate, money in a purse, stock in the public funds, a security for money, which would immediately vest with the assent of the executor. Shepard v. Bryan, 195 N. C., 822; Smith v. Smith, 192 N. C.; 687. A bequest of .money “in notes to be taken out of my notes by my executor and paid over to (the legatee).as soon after my death as it can conveniently be done,” is specific. Perry v. Maxwell, 17 N. C., 488, 496, 502. So is a bequest of “one carriage, one yoke oí oxen — her choice,” the last two words making the preceding description specific. Everitt v. Lane, 37 N. C., 548. In the present case the exercise of the power of selection rendered the bequest specific when the selection was made. 28 R. C. L., sec. 267. To create a specific bequest the property must be described as belonging to the testator, and it is customary to express ownership by the use of such words as “my,” “in my possession,” etc. Smith v. Smith, supra. It is suggested by the appellants that the will contains no words which identify the stocks. .So it was in several items of the will construed in the case last cited-, but this Court took into consideration the whole will and not merely the clauses containing the gift of stocks. Considered according to these principles, the legacy in the second item is specific. In the sixth item the testator disposed of “all the rest and residue of my estate, both real, personal, and mixed”; instructed his executor-to employ counsel in the management of my estate; and in the codicil he referred to the property and estate which he had given. This was unequivocal indication of his ownership of all the property. We do not accede to the contention that the words “at its then par value” negative the testator’s intent to bequeath the dividends, or that the bequest is susceptible of the construction that stocks not owned by the testator should be purchased in the open market for the benefit of the legatee. Why adopt this interpretation when the testator, owning-stocks in a score of corporations obviously intended to dispose of all his property, and not to hazard the interests of the legatees by pursuing the. suggested policy 1 The appellants insist that the executor should not be required to assent to the legacy in question until the legatee has paid the inheritance tax. .The executor is protected; he has the dividends which, according to the record, are in excess of the tax. The judgment as to the costs is correct. We find No error.