using qualifying words after an absolute gift.* If such property is bequeathed in trust the first taker has no right to its possession, but only to the income; but if there is no trust he may possess himself of the corpus of the property. By statute, and by judicial decision, the first taker of such property may be required to give bond for its safe keeping and repayment at the end of his enjoyment of it.

Sec. 1023. WHEN DEVISES AND LEGACIES WILL VEST.-The interest of the beneficiary under a will may be either vested or contingent. A vested interest means one which gives the beneficiary a present fixed right, either of present enjoyment or a future enjoyment.‡ A contingent interest is one in which there is no present fixed right of either present or future enjoyment, but which may become a fixed right in the future on the happening of a specified event.§

When the interest of the beneficiary is vested, it will pass to his heirs or devisees although the beneficiary dies before coming into the enjoyment of the estate, that is, it does not matter whether the prior estate has terminated or not. While if the interest is contingent, and the beneficiary dies before the termination of the prior

*Piersol v. Roop, 56 N. J. Eq. 739; Smith v. Bell, 6 Pet. 68. LaBar's Est., 181 Pa. St. 1; Fox v. Senter, 83 Me. 295; In re McDougall, 141 N. Y. 21; Pendleton v. Kinney, 65 Conn. 222.

397.

Page on Wills, Sec. 656; Cox v. Handy, 78 Md. 108.

Spear v. Fogg, 87 Me. 132; Hale v. Hobson, 167 Mass.

¶Chapin v. Parker 157 Mass. 63; McClain v. Capper, 98 Ia. 145.

estate, the remainder fails.* It is to be remembered, however, that a vested remainder may be defeated by the happening or not happening of a condition subsequent. And that vested remainders devised to a class, as the children of testator, may open after the death of the testator to let in children born after testator's

death.‡

Concerning the vesting of devises and legacies, the following general rules of construction may be laid down:

1. In construing remainders and conditional estates, the law favors that construction by which a devise or legacy will be vested rather than contingent, and absolute rather than conditional.§ Thus remainders are usually held, in the absence of a plain intention to the contrary, to vest at the death of the testator.¶

2. Though the authorities are not uniform, the general rule is, that words of survivorship in reference to both real and personal property will refer to the time when the property is to be divided, that is, to the time

*Shaw v. Eckley, 169 Mass. 119; Watson v. Smith, 110 N. C. 6; Cummings v. Sterns, 161 Mass. 506.

†Mulreed v. Clark, 110 Mich. 229; Brasher v. Marsh, 15 O. S. 103.

Cherbonner v. Loodwer, 79 Md. 55; Field v. Peeples, 180 Ill. 376; Lasey v. Stanley, 147 N. Y. 560.

§Bonner v. Young, 69 Ala. 35; Lovass v. Olson, 92 Wis. 616; Gingrich v. Gingrich, 146 Ind. 227; Newberry v. Hinman, 49 Conn. 130.

[Page on Wills, Sec. 658; Harrison v. Moore, 64 Conn. 344; Collier's Will, 40 Mo. 287; Linton v. Laycock, 33 O. S.

of testator's death if there be no intervening estates, but if there are intervening estates, then to the time of their termination.*

3. Where there is a gift to one person with a remainder over to another in case of his death, or in case of his death without "heirs" or without "issue," this is construed to mean his death without heirs or issue, before the time for payment or distribution; that is, before the death of testator. In such a case if the first taker dies during the testator's life or before the time set for the payment of the legacy, the gift overtakes effect, otherwise the gift becomes vested as an absolute fee simple and the remainder over is nullified.†

Sec. 1024.

CLASSES OF DEVISES AND LEGACIES.-Legacies and devises are divided into three classes, namely, general, specific and demonstrative.

1. A general legacy or devise is one which may be satisfied from any part of the testator's property or money, and which does not specify the property or fund from which it is to be paid.‡

2. A legacy or devise is specific when it can be satisfied only by the transfer or delivery of some par

*Dimmick v. Patterson, 142 N. Y. 322; Wilson v. Wilson, 40 N. J. Eq. 321; Bailey v. Hawkins, 18 R. I. 573; Wilson v. Bryan, 90 Ky. 482; Dean v. Winton, 150 Pa. St. 227; Colby v. Doty, 158 N. Y. 323.

+Walsh v. McCutcheon, 71 Conn. 283; Baker v. McGrew, 41 O. S. 113; Keating v. McAdoo, 180 Pa. St. 5.

Kelly v. Richardson, 100 Ala. 584; Hughes v. Hughes, 91 Wis. 138.

ticular portion of, or article belonging to the estate, which portion or article the testator intended should be transferred to the legatee in specie. Thus a gift of the testator's watch, a gift of money deposited at a certain bank, a gift of property invested in a certain business, a gift of an amount due from a certain debtor, are all specific gifts.*

4. "A demonstrative legacy is one which is general in its nature, but which is made payable out of certain specified property, either real or personal." Thus a bequest of a sum of money payable out of a particular sum of money, or a specified fund, is a demonstrative legacy. It is equivalent to a devise or bequest of so much or such a part of a fund or thing specified.‡

If the property or fund from which a demonstrative legacy is directed to be paid does not exist such legacy is payable out of the general property of the testator. While if the designated fund is in existence, the demonstrative legacy must be paid out of it in preference to other legacies. (Hammer's Est., 158 Pa. St. 632; Dumford v. Jackson, 22 S. E. Rep. 853.)

5. A specific legacy takes priority over a general legacy, in case of a deficiency of assets, and does not suffer abatement with the general legacies, unless such

*Bryne v. Hume, 86 Mich. 546; Crawford v. McCarthy, 159 N. Y. 514; Kelly v. Richardson, 100 Ala. 584.

†Page on Wills, Sec. 770; Hibler v. Hibler, 104 Mich. 274; Glass v. Dunn, 17 O. S. 413.

Roquette v. Eldridge, 118 Ind. 147; Wyckoff v. Perrine's Est., 37 N. J. Eq. 118; In re Hodgman, 140 N. Y. 421.

is the plain intention of the testator.* Where the subject of a specific legacy is disposed of after the will is made, so that it does not exist in specie at the testator's death, or it has been so changed that it can not be called the same thing, the bequest fails, and the legatee is not entitled to money in lieu of it.†

6. A demonstrative legacy will be made good out of the other assets in case the fund provided for its payment fails. In case of a deficiency of assets it does not suffer abatement like a general legacy.‡

In case of a deficiency of assets, all general legacies abate pro rata, unless some particular general legacy is granted on a valuable consideration, in which case it may have priority over other general legacies.§ This rule as to legacies given upon a valuable consideration, applies to make a specific legacy granted upon a consideration take priority over others of its class.¶

7. An abatement of legacies is necessary when the testator's property is insufficient to pay debts and expenses which are a prior lien, and all other legacies in full. When there is such a failure, and the testator has not indicated the manner in which legacies shall

*Kelly v. Richardson, 100 Ala. 584; Myers v. Myers, 88 Va. 131; Dunn v. Renick, 40 W. Va. 349.

†Bryne v. Hume, 86 Mich. 546.

Lake v. Copeland, 82 Tex. 464; Bryne v. Hume, 86 Mich. 546; Petre v. Petre, 14 Beav. 197; Sykes v. VanBibber, 88 Md. 98.

§Kelly v. Richardson, 100 Ala. 584; Henry v. Griffis, 89 Ia. 543; Rumsey v. Otis, 133 Mo. 85; Taylor's Est., 175 Pa. St.

Taylor's Est., 175 Pa. St. 60.