Harper v. Bibb & Falkner

PETEES, J. This is a bill in equity filed by the executors of the last will of William B. S. Gilmer, deceased, for the purpose of obtaining the aid of the court in its construction, so that the said executors may be' able safely and properly to execute the duties of their trust. The will bears date the 26th day of June, 1863, and it was' made and published in this State, and the testator died on the 5th day of January, 1865, in Chambers county, in this State. The clause of the will sought to be construed in this case is in the following words: “Item 13. I give to my friend P. O. Harper ten thousand dollars in notes or in Confederate States bonds, at the option of my executors hereinafter named.” The first question that presents itself is the technical' character of the bequest here intended to be made. Is it to be regarded as a specific or a general legacy? A specific legacy is one that can be separated from the body of the estate and pointed out so as to individualize it, and enable it to be delivered to the legatee as a thing sui generis. The testator fixes upon it, as it were, as a label, by which it may be identified and marked for delivery to the owner, and the title to it, as a separate thing, vests at once, on the death of the testator, in the legatee. — Innis v. Johnson, 4 Ves. jr., 568, 573; Kirby v. Potter, ib. 748, and note a, Sumner’s ed. When such individualization is not effected by the language of the will, the legacy can hardly be said [554] to be specific. The above formula of words does not do this. Then it does not create a specific legacy. "We may therefore dismiss any further discussion of bequests of this character, except, perhaps, to add, that courts are averse to construing legacies as sjcecific, when it can be helped. — 4 Ves. jr., 568, supra; 2 Williams Ex’rs, 840; 2 Harris, 451. It is also said that legacies are divided into two other classes. These are demonstrative legacies and general legacies. The former consist of bequests payable out of a particular fund named or demonstrated in the will itself. The latter consist of those of “ quantity merely, and include all cases not embraced in the other two.” — Myers’ Ex’rs v. Myers, 33 Ala. 85, 88, 89; 2 Williams Ex’rs, marg. p. 993, 994, et seq., 4th Am. ed., and notes; 1 Roper Leg. marg. pp. 190, 191, 192, et seq., 2d Am. ed. 1848. But Mr. Williams, in his learned work on Executors, above referred to, makes only two classes of legacies; the one specific, and the other general. And upon the distinction thus laid down, depends the solution of many of the very difficult questions attendant upon the construction of wills. The will of the testator is the law of the court; and the intention of the testator, 'so far as his intention is lawful, is his will. It is, therefore, this intention that we must look for, when we seek to construe his testamentary disposition of his estate. In construing a will, the court is authorized to put itself in the testator’s place at the time he made it, and view the surrounding circumstances as the testator probably viewed them himself. If we do this, it is obvious, that he intended to make a very considerable gift of his personal property to his “friend P. O. Harper.” He did not propose to make the enjoyment of this gift depend upon a contingency, except upon a deficiency of assets. This is the nature of a general legacy. If there is a sufficiency of assets, it must be paid. If not, then it is to be abated or lessened in proportion to such deficiency of assets to pay legacies. — 2 Williams Ex’rs, marg. pp. 996, 997, and notes, Am. ed., supra. When this case was here be [555] fore, it was determined that this was a general legacy, and not a specific legacy.— Gilmer's Legatees v. Gilmer's Ex’rs, 42 Ala. 9, 15, 23. That such a legacy is demonstrative, does not seem to alter its character. It is still to be treated as a general legacy. — 2 Williams Ex’rs, marg. p. 995, and cases cited; Balliet’s Appeal, 2 Harris, 451. It is true that the executors were authorized, at their “option,” to pay this legacy in one of two ways, but they were not authorized to defeat it altogether. This was not the testator’s intention, because the character of the gift forbids it, as I think the foregoing authorities abundantly show. In such, a case, if the fund provided for the payment of such a legacy be called in, or fail, the legatee will not be deprived of his legacy, but permitted to receive it out of the general assets. — 2 Harris, 451, supra; Chaworth v. Beech, 4 Ves. jr. 555, 564; 2 Williams Ex’rs, 995, and authorities in note q. Here there were two funds. If one faded, it did not defeat the gift, The executors should have paid it out of the other. If that failed, then they should have paid it out of the general assets for the payment of legacies. Davis and Wife v. Cain’s Ex'r, 1 Iredell Ch. R. 304; and cases supra. It is very evident that the testator did not look upon the “notes” mentioned’in his will, or the “Confederate States bonds,” as wholly worthless securities. He thought them about equal in pecuniary estimate. And he did not intend to impose either upon his “friend” as things wholly destitute of any money value whatever. He did not intend that if he died without “ notes ” or “ Confederate States bonds ” to satisfy this bequest, his benefaction to his “friend” should wholly fail, because this would have made the legacy specific, and not general, as it evidently is. The court here intervenes and directs the execution of a trust upon like principle that it does upon the execution of a power; that is, to prevent a legacy from failing which the testator, at the time he made his will, did not intend should fail. Besides, if the executors can use their “ option,” as contended for by appellees’ counsel, they may pay some of the legacies, like this mentioned in the will, [556] with “notes,” and defeat others with a simulated payment in the worthless “ Confederate bonds.” This is certainly not the power intended to be given by the testator. This legacy maybe paid in “notes,” if there are “notes” belonging to the estate of said testator, with which the executors may satisfy the same. And if there are no “ notes” available for this purpose, the learned chancellor in the court below will ascertain the pecuniary value of said legacy to said P. 0. Harper at the time the same became due and payable to said legatee, and cause the same to be paid, in whole or in part, according to the sufficiency of assets for the payment of general legacies, under the directions of said will of said testator.