such stock, but possessed other stock nearly answering the Chap. XIV. description, the latter will pass.

66

Upon this principle Bank stock has been held to pass as East India Stock (a); 3 per cent. South Sea Annuities as 3 per cent. Consols (b); 3 and 5 per cent. Bank Annuities as money in the Bank of England (c); 3 per cent. Reduced Annuities as Long Annuities (d); 3 per cents. in the names of trustees over which a testatrix had a general power of appointment as "monies invested in my name in the 4 per cent. Government securities" (e); Consols in the names of trustees as property "which stands in the English Bank" of Coutts & Co., who received the dividends (f); stock in the names of trustees as stock "in my name (g); French Rentes in the names of the testator's agents as French Rentes "inscribed in my name" (h); Wilts and Somerset Stock of the Great Western Railway Company, and preference and other stock of that company, as my shares in the Great Western Railway" (i); a deposit receipt and cash at a bank as "all I hold" in that bank; a bond of a company as shares of that company, and shares of a company as bonds of that company, and debenture stock of a company as shares of that company (j); 6,800 dollars United States Bonds as "my 7,000 dollars or the produce thereof" (k); debentures of a company as "debenture stock or shares" of that company (1); and 2001. stock of a company as two shares of that company, which never had shares but stock only (m). Door v. Geary, 1 Ves. Sen. 255 (a); Dobson v. Waterman, 3 Ves. 307, n. (b); Gallini v. Noble, 3 Mer. 691 (c); Penticost v. Ley, 2 J. & W. 207 (d); Mackinley v. Sison, 8 Sim. 561 (e); Sheffield v. Von Donop, 7 Ha. 42 (ƒ); Quennell v. Turner, 13 B. 240 (g); Ellis v. Eden, 25 B. 482 (h); Trinder v. Trinder, L. R. 1 Eq. 695 (i); Townsend v. Townsend, 1 L. R. Ir. 180; In re Weeding; Armstrong v. Wilkin, (1896) 2 Ch. 364 (j); Palin v. Brookes, 26 W. R. 877 (k); In re Nottage; Jones v. Palmer, (No. 2) (1895) 2 Ch. 657 (1); Brannigan v. Murphy, (1896) 1 Ir. 418 (m).

It is not clear what the result would be if the testator after the date of his will acquires property exactly answering the description. See In re Weeding, supra.

Chap. XIV.

Gift of

If the testator devises an estate by name when in fact he has an interest only in the proceeds of sale of the estate, that pass proceeds interest passes. Cooper v. Martin, 3 Ch. 47; In re Lowman; Devenish v. Pester, (1895) 2 Ch. 348.

estate may

of sale.

Specific gift of something

the testator has sold before the date of the will.

Gift of something the

testator

thinks he has

but has not.

Effect of sale of thing specifically given and

purchase of similar thing.

Confirmation by codicil.

But a general gift of leaseholds will not pass the proceeds of sale of leaseholds which at the date of the will the testator had contracted to sell. Goold v. Teague, 7 W. R. 84; 5 Jur. N. S. 116.

8. If a testator makes a specific bequest of something which he has not at the date of the will, evidence is admissible to show how the mistake arose, and the fact that the thing in question has been exchanged for something else before the date of the will, will not avoid the legacy. In such a case the legatees are entitled to a sum equal in value to the specific legacy at the testator's death. Selwood v. Mildmay, 3 Ves. 306; Lindgren v. Lindgren, 9 B. 358; Goodlad v. Barnett, 1 K. & J. 341.

9. On the other hand, if the testator makes a specific gift of a thing he thinks he has, but never had, or of a thing which he intends to purchase, but does not, the gift is void. Waters v. Wood, 5 De G. & S. 717; Erans v. Tripp, 6 Mad. 91; Millar v. Woodside, I. R. 6 Eq. 546.

10. If a testator devises a specific thing, such as "my house in Grosvenor Square," and then sells the house and buys another house in Grosvenor Square, there can be little doubt that the latter will not pass. The gift is of a specific thing he has at the date of the will and no other thing will pass. In re Gibson; Mathews v. Foulsham, L. R. 2 Eq. 669. There are some observations to the contrary in Castle v. Fox, 11 Eq. 542, p. 551, which cannot now be considered in accordance with the law. See In re Portal & Lamb, 30 Ch. D. 50.

11. If the testator sells the specific thing and buys another thing closely resembling the former, the subsequent confirmation of the will by a codicil will not have the effect of passing the fresh acquisition, if the description in the will is not accurately appropriate to it. Pattison v. Pattison, 1 M. & K. 12; Macdonald v. Irvine, 8 Ch. D. 101; see

Pilkington's Trusts, 6 N. R. 246; and see Chapter XVII. as to Chap. XIV. Ademption.

intended to be

12. Possibly a specific gift, for instance, "of my stock," Stock might pass stock which the testator had at his death agreed purchased. to purchase. See Collison v. Girling, 4 M. & Cr. 63, p. 75.

But it would not include stock which the testator has directed his brokers to purchase, but which is not in fact purchased till after his death. Thomas v. Thomas, 27 B. 537.

Chap. XV. General and specific legacies distinguished.

Legacy of

stock is not specific.

Nor of money

in stock.

CHAPTER XV.

SPECIFIC, GENERAL, AND DEMONSTRATIVE LEGACIES.

In the case of bequests of personalty it is often a question of difficulty whether a legacy is general or specific. A general legacy is a legacy not of any particular thing, but of something which is to be provided out of the testator's general estate. If a particular fund is made primarily liable the legacy is demonstrative, but does not fail by the failure of the particular fund. On the other hand, a specific legacy is a gift of a severed or distinguished part of the testator's property. It does not abate till after the general legacies are exhausted, but it is liable to ademption by the testator in his lifetime.

If the legacy is general, the legatee is entitled to have its value paid him out of the estate, but if it is impossible to say what the value is, the legacy fails for uncertainty. In re Gray; Dresser v. Gray, 36 Ch. D. 205.

The most common, though not the only kind of specific legacy, is where the testator gives something which he possesses at the date of the will.

In those cases there must be on the face of the will enough to show that the testator is referring to something actually existing at the time.

A mere legacy of stock in round numbers, though the testator may possess the exact amount of stock, is not specific. Partridge v. Partridge, 9 Mod. 269; Ca. t. Talb. 226; Simmons v. Vallance, 4 B. C. C. 345; Wilson v. Brownsmith, 9 Ves. 180. Similarly, a bequest of 5,000l. in the South Sea Company's Stock is general, though the testator may have the exact

amount at the date of his will. Purse v. Snaplin, 1 Atk. 415; Bronsdon v. Winter, Amb. 57; Bishop of Peterborough v. Mortlock, 1 B. C. C. 565; Webster v. Hale, 8 Ves. 410; Robinson v. Addison, 2 B. 515; Macdonald v. Irvine, 8 Ch. D. 101; In re Gray; Dresser v. Gray, 36 Ch. D. 205; see Page v. Young, 19 Eq. 501, where a gift of "the interest of 4,500l., money in the funds," was held specific.

As to whether the gift is of so much money to be invested in stock, or of stock of that value, see Allan v. Kelly, 7 W. R. 139.

But though the actual gift may not contain anything to show that it is specific, it may appear from the rest of the will that it is so.

A direction to transfer a certain amount of stock, or to pay it as soon as possible, will not make the legacy specific. Sibley v. Perry, 7 Ves. 522, 529; Webster v. Hale, 8 Ves. 410. But a gift of stock generally to trustees on trust to sell, shows that the testator referred to specific stock. Ashton v. Ashton, Ca. t. Talb. 152; 3 P. W. 384.

So where a testator, having given legacies of stock generally, then gives the rest of the stock "standing in my name," the earlier legacies must be specific. Sleech v. Thorington, 2 Ves. Sen. 560; see Millard v. Bailey, L. R. 1 Eq. 378.

A direction that if the testator should not have sufficient stock standing in his name to answer the legacies of stock previously given, the executors should purchase sufficient to make up the deficiency, shows that the testator meant to give something in existence at the time. Townsend v. Martin, 7 Ha. 471; Fountaine v. Tyler, 9 Pr. 94; Queen's Coll. v. Sutton, 12 Sim. 521.

The same is the case with a gift of 4,000l., capital stock, in the 3 per cent. Consolidated Bank Annuities, " or in whatsoever of the Government funds the same should be found invested." Hosking v. Nicholls, 1 Y. & C. C. 478.

Legacy of round num

stock not in

If the legacy is not of stock in round numbers, but, for instance, of 2,7021. 38. Bank Annuities, and the testator has the exact amount, it would seem the argument in favour of specific gift is much stronger. Jeffreys v. Jeffreys, 3 Atk. has the exact 120; see Robinson v. Addison, 2 B. 515.

bers where the testator

amount.