Smith v. McKitterick

Day, J. — I. The plaintiffs failed to except to the sustaining of the demurrer to the original petition, and amended their petition. The appellee now insists that plaintiffs cannot rely upon the claim made in the original petition for interest from the date of the death of the testatrix. But the plaintiffs, in their amended petition, reaffirm all and each the matters contained in their original petition. No demurrer was filed to this allegation, nor motion to strike it out. We think, therefore, that the plaintiffs may claim the relief asked in the original petition. R-will: spe. citic legacy: ’ interest. II. The whole question involved is as to when the legacies begin to draw interest, and what rate of interest should be allowed. The plaintiffs claim that the lega- , . ° exes are specific^ and that they draw interest from the date of the death of the testatrix, at ten per cent, that being the rate which the note held by the testatrix was drawing at the time of her death. Specific legacies carry any accessions, by way of increase or interest, which accrue after the death of the testator. 2 Redfield on Wills (3d Ed.), 467; Graybill & Butts v. Warren, 4 Ga., 528. The real question in this ease is whether the legacies to the plaintiffs are specific or general. In 2 Redfield on Wills (3d Ed.), 132, the distinction between a general and a specific legacy is thus defined: “A legacy is said to be general when it is not answered by any particular portion of, or article belonging to, the estate, the delivery of which will alone fulfil the intent of the testator; and when it is so answered it is said to be a specific legacy, because it consists of some specific thing belonging to the estate, which is, by the legacy, intended to be transferred in specie to the legatee.” In 2 Williams on Executors (6th Ed.), 1250, it is said: “A legacy is general when it is so given -as not to amount to a bequest [552] of a particular thing or money of the testator, distinguished from all others of the same kind. A legacy is specific when it is a bequest of a specified part of the testator’s personal estate which is so distinguished.” One of the essential properties of a specific legacy is that if the legacy fail by the inadequacy of its subject, the legatee will not be entitled to any recompense or satisfaction out of the general personal estate. 2 Williams on Executors, 1251. The bequests in question are contained in the following provision of the will: “I have and own in my>own right the sum of two thousand dollars, received from the estate of my father, which I will and bequeath to my daughters Amanda and Adeline, in equal shares to them and their heirs and assigns.” This legacy is a bequest of a specific part of the testatrix’s personal estate, viz.: that which she received from the estate of her father. The bequest thus comes within the definition of a specific legacy, contained in the authorities above cited. If, by the insolvency of the maker of the note owned by the testatrix at her death, it had happened that the testatrix, at the time of her . death, did not own in her own right two thousand dollars, received from the estate of her father, we think it is quite apparent, from the provisions of the will, that the plaintiffs would not have been entitled to compensation out of the remaining portions of her estate. ■This fact alone fixes the character of the bequest as a' specific legacy. In Warren v. Wigfall, 3 Dessau. (S. C.), 47, a bequest in the following foivm: “I give to my wife the whole of the property she brought me,” was held to be specific. III. The appellee insists that if the bequest is specific the note itself must be turned over to the plaintiffs. It appears, however, from the defendant’s answer, that he has collected nearly all of the note. Under such circumstances the defendant must account for the proceeds of the note. The plaintiffs are entitled to an order for the payment to each of the legacy of one thousand dollars, with interest at the rate of ten per cent from August 22, 1875, the date of the death of [553] the testatrix, if so much shall be realized from the note in question. If less is realized from the note the plaintiffs are entitled to an order for the payment of that amount. Eeversed.