Are tbe legacies of stock contained in Items 10, 11, 12, 13 and 14 of tbe will specific or general?
If they are general legacies the stock dividends would constitute a part of tbe general estate of tbe testator, and, after tbe administration of tbe estate, pass to tbe residuary legatees. If, upon tbe other band, tbe legacies are specific, tbe legatees named are entitled to said stock dividends by virtue of tbe fact tbat said stock dividends are accretions to tbe stock bequeathed by tbe testator. ' “Specific legacies carry with them all accessions by way of dividend or interest tbat may accrue after *690the death of the testator, unless the will specifies otherwise.” Palmer v. Palmer’s Est., 75 Atlantic, 130; Perry v. Leslie, 126 Atl., 340; Gordon v. James, 86 Miss., 719; 1 L. R. A. (N. S.), 461.
In Graham v. Graham, 45 N. C., 297, Battle, J., defined a general legacy as follows: “A legacy is said to be general when it is so given as not to amount to a bequest of a specific part of a testator’s personal estate; as a sum of money; generally or out of the testator’s personal estate and the like. 1 Roper on Leg., 256. In the same case a specific legacy was defined as follows: ‘A specific legacy is defined to be “the bequest of a particular thing or money specified and distinguished from all other 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.” ’ 1 Roper on Leg., 149. A specific legacy has been further defined as ‘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.’ ” Harper v. Bill, 47 Ala., 547.
In determining whether a legacy of shares of stock is specific or general, the whole will must be considered and not merely the clause containing the gift or legacy. Blair v. Scribner; 57 Atl., 324; McGuire v. Evans, 40 N. C., 269; Graham v. Graham, 45 N. C., 297; Perry v. Leslie, 126 Atl., 340.
The definitions of the terms are well settled, but the difficulty arises in applying the definitions to a given state of facts. “The leaning of the courts is against construing doubtful terms into a specific gift, because the gift is lost upon the failure of the fund, from any cause; and also, because it is not subject to the equitable principle of equality by abatement. It must be clear, therefore, upon the will, that nothing is meant but a particular thing, or a part of a particular thing, existing in specie at the making of the will or when it is to take effect. If the words will be satisfied by any thing of the same kind, not owned by the testator, the legacy is general. The difference may be illustrated by the common case of a contract to sell and deliver goods of a common kind, say one hundred barrels of corn, upon which the remedy is by action for damages for not delivering, and a contract to sell a certain hundred barrels, as a distinct parcel in a crib, which vests the property, and gives trover or detinue upon refusal to deliver.” Ruffin, C. J., Perry v. Maxwell, 17 N. C., 503.
There are, however, certain well defined indicia of specific legacies. These may be classified as follows:
2. The property must be described as belonging to the testator. This ownership is usually expressed by such words as “my,” “standing in my name,” “in my possession,” “which I now hold,” “owned by me.” Perry v. Maxwell, 17 N. C., 503; Davis v. Cain, 36 N. C., 309; Howell v. Hooks, 39 N. C., 188; McGuire v. Evans, 40 N. C., 269; In re Wiggins, 179 N. C., 326; Kearns v. Kearns, 76 Atl., 1042; Rogers v. Rogers, 48 S. E., 176.
In applying the pertinent principles established by the authorities, it is necessary to inquire whether or not there are any words in the will bearing upon the legacy which are indicative of present ownership or possession of the stock bequeathed. The word “my,” which has been held to be sufficient to designate a specific legacy, receives its force from the fact that it indicates present ownership or possession of the thing bequeathed. Therefore, it is necessary to determine whether or not there are words in the will indicating present ownership or possession of the stock bequeathed by the testator.
Item 5 of the will is as follows: “I will and direct that all my property shall remain as it is now under the direction of my wife, Frances E. Nesbit, so long as she shall live, and after her death my property shall be distributed as provided in the items following.” The items in which the stock in the Mooresville Cotton Mills were bequeathed are “items following,” to wit, 10, 11, 12, 13 and 14 of the will. Obviously, item 5 must be read in connection with items 10, 11, 12, 13 and 14 of the will. Thus, it would seem clear that in item 5 the references to “my property” indicate that the testator owned the stock in the Mooresville Cotton Mills at that time and was in possession thereof and intended that it should vest in the legatees named upon the death of his wife, Frances E. Nesbit.
The defendants rely upon the case of McGuire v. Evans, 40 N. C., 269. In that case the testator bequeathed “twenty shares of capital stock of the Bank of Cape Fear” to John K. McGuire. Nash, J., speaking for the Court, says: “If the answer to this question depended alone upon the words used in making the bequest, we should, without hesitation, pronounce the legacies general. ... To render such a bequest specific, it is essential that the testator, in the will, in connection with the bequest, should refer to the stock he then has, or express the intention, that it should come out of that stock. If such intention, does clearly appear from the will itself, his intention will make the bequest specific.”
In the McGuire case, supra, the Court held that the bequest of twenty shares of the capital stock-of the Bank of Cape Fear, in the third clause *692of tbe will, was made specific by language appearing in the fourteenth clause thereof. After referring to the fourteenth clause of the will, Justice Nash says: “There can be no doubt what stock the testator meant. He meant, evidently, the stock he then had; and if so, they are specific legacies — not general.” Heath v. McLaughlin, 115 N. C., 398.
Our conclusion is, upon the whole record, that the legacies of stock in the Mooresville Cotton Mills were specific, and that the stock dividends accruing upon said shares belong to the legatees named.