McGuire v. Evans, 40 N.C. 269, 5 Ired. Eq. 269 (1848)

Dec. 1848 · Supreme Court of North Carolina

40 N.C. 269, 5 Ired. Eq. 269

JOHN K. McGUIRE & AL. vs. JONATHAN EVANS & AL.

Where a testator bequeathes Bank Stock generally, without saying it is the bank stock he owns, the bequest will be general and not specific.

But, when, after giving several legacies of bank stock, in giving another legacy of bank stock he uses this expression “in case there should be any deficiency in the bank stock, which I hold at my death, as compared with the amount bequeathed in my will and testament.” Held that he meant the stock he should then have, and therefore the legacies were specific and not general.

Held further that the bank stock being insufficient to discharge the legacies, the legatees are entitled to have what stock there may be applied pro rata to the payment of these legacies and that the deficiencies are to be supplied out of the residue of the estate.

A testator directs.among other things, as follows ; “ In case my Bank Stock should not be absorbed in the payment of debts which may come against my estate, then and in that case I give and bequeath to A. two shares of the Bank Stock Sec.” There were no debts, to which the bank Stock was applied but there was not stock enough to satisfy previous legacies. Held, that this bequest failed, because of the failure of the fund, out of which it was to come.

When the same property is, by the same will, given to two different legatees, they take moieties.

The cases of Davis v. Cain, 1 Ired. Eq 304, and Field v. Eaton, 1 Dev. Eq. 283, cited and approved.

Cause removed by consent from the Court of Equity of Cumberland county, at the Spring Term 1548.

The bill is filed to recover from the defendant Evans, the executor of John Keliy, legacies claimed by the plaintiffs under bis will. Mr. Kelly, by will, devised to his wife, in the first clause of it, a large portion of property, both real and personal, among which arc “the negroes, Caroline and Henry, children of Henry and Mary.” He then goes on to say: “I also give and bequeath to my dear wife, absolutely, fifty shares of the Capital Stock of the Bank of Cape Fear.” In the same clause he gives to his wife for life two other negroes, Bill (shoe-maker) and Tibby, and “also the dividends upon twenty five shares of the capital stock of the Bank of Cape Fear,” and after her death Bill and Tibby' are given to Benjamin Hush.

By the 3rd clause," twenty shares of the capital stock of the Bank of Cape Fear,” are given to John K. McGuire, and by the 5th "ten shares of the capital slock of the Bank of Cape Fear” are given to Patrick Murphy'. The 6th clause gives to Frances Casey a negro slave “Ettyx, child of Henry and Mary,” and twelve and a half shares of “the capital stock of the Bank of Cape Fear.”

The 7th clause gives, in the same words as in the proceeding section “ twelve and a half shares in the Capital stock of the same Bauk to Andrew B. Casey.” The 8th clause givc-s to John Kelly McGuire twelve shares of the same stock, and the 18th give thirteen shares of the capital stock of the same Bank to Margaret Casey. The 14th clause is in the following words : “ In case there shall be any deficiency in the Bank Stock, which I hold at my death, as compared with the amount bequeathed in my will aud testament, then in that case, the amount limited and given to my' wife, is not to abate, but the deficiency must fall on the other Bank Stock given to the other legatees exclusively'.” To this will the testator has annexed several codicils. In the first he directs, as follows : “and in the event my Bank Stock should not be absorbed in the payment of debts, which may come against my estate, then and in that case, I give and bequeath to my executors and the survivors of them, ten shares of the Capital Stock of the Bank of Cape Fear,” in trust for Catherine and Mary Fitzharris. This legacy is claimed by' these legatees to be made up to them out of the general residue of the estate — the particular fund having failed. The Bill, after setting forth the above legacies, in substance, states, that the testator, at the time of his death, had but 117 shares of stock in the Bank of Cape Fear, and that the number devised by him, exclusive of ten shares to Catharine and Mary Fitzharris, was one hundred and thirty two : That the executor had transferred to Mrs. Kelly the fifty shares, given to her, and had still in his possession sixty seven. It further states, that there are no debts or liabilities of the testator of the nature of those stated in the 14th clause, and alleges, that the legacies to the Fiztharris were made dependant on the existence of the fact, that his Bank Stock was exhausted by such claims. The bill charges, that the girl Caroline, given in the first clause of the will to the testator’s wife, Ann Kelly, is the same girl, who, in the Gth clause, is given by the name of Etty to the plaintiff, John K McGuire, in trust for the plaintiff, Frances and that, therefore, the said Ann and Frances held her as tenants in common. And the plaintiffs insist, that the legacies of the Bank of Cape Fear Stock are general, and as there are not shares sufficient belonging to the estate to satisfy all the said legacies, that they are entitled to have the sixty seven shares, applied pro rata to their respective legacies, and that the residue of the estate will be resorted to, to supply the deficiencies, as far as it will go ; and that they have now the right to demand an account and settlement. The widow. Mrs. Kelly, is dead. The prayer of the bill is for an account and payment of the legacies.

The answers admit the facts set forth in the bill. The defendant, Jonathan Evans, executor of John Kelly, craves the instruction of the Court, and claims, that the legacies to the plaintiffs of Cape Fear Bank Stock are specific and not general; and that the said legatees have no right to resort, on failure of the said stock to meet the said legacies, to the residue of the estate ; and that the legacies to the Fitzharris’ must fail altogether. The answer of John Rose and his wife, Margaret, claims their legacy as one, any deficiency of stock on hand must be made up out of the residue. Jonathan Evans is the executor of John Kelly and the administrator of Mrs. Kelly, who is dead.

W. Winslow, for the plaintiffs.

Strange and Rusted, for the defendants.

Nash, J.

The first question, that presents itself, is as nature bequests of the Bank Stock ; are they general or specific ? Mr. Roper defines a general legacy be a testamentary gift of personal estate generally; a specific legacy to be a bequest of particular things, distinguished from all others of the same kind. In the of Mr. Kelly, in every instance, in which he gives Cape Fear Bank Stock, he uses the general words, so shares of the capital stock of the Bank of Cape Fear. the answer to this question depended alone upon the words used in making the bequest, we should, without hesitation, pronounce the legacies, general. Nor would fact, that the testator, at the time he made his will, stock in that Bank to the amount bequeathed, vary construction. 1 Rop. on Leg. 157. In order to have effect, it must appear upon the face of the will, that testator meant the identical stock owned by him— intention to make it specific must be clear; for Courts Equity incline to consider legacies general rather than specific. Thus the word “my,” preceding the word “stock” sufficiently show the intention. Barton v. Cooke, 5 461. 4 Ves. 750, Davis & wife v. Cain’s Ex’r, Ire. Eq. 304. To render such a bequest specific, it is essential, that the testator, in the will, in connection with bequest, should refer to the stock he then has, or ex-the intention, that it should come out of that stock. such intention does clearly appear from the will itself intention will make the bequest specific. 1 Rop. 164, Sleech v. Thorington, 1 Vez. Sr. 561. If the will of Mr. Kelly be tested by the above rule, it will, we think, very clearly appear, that the bequests of the stock are specific. In the 14th clause, the language is clear, as to the stock he had in his mind, when he devised it — his words are “in case there shall be any deficiency in the Bank Stock, which I hold at-my death, as compared with the amount bequeathed in my will and testament,” &c. 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.

The second question submitted, is as to the legacy to the two Fitzharrises. We are of opinion, that the bequest fails, because of ilie failure of the fund out of which it was to come. This bequest is specific in its nature, and it is of the nature of specific legacies, that when the specific fund fails, the legatee will not be entitled to any satisfaction out of the personal funds of the testator. 1 Rep. 150.

The 3rd question is as to the negro Caroline. In the 1st clause, she is given to Mrs. Kelly under the name of Caroline, and in the 6th she is given to Frances Casey under the name of Etly. When the same property is by the same will given to two different legatees, they take moieties. So that one half of. the value of Caroline belongs to the estate of Mrs. Kelly, and the other half to Frances Casey. Field v. Eaton, 1st Dev. Eq. 283. Another question was made at the Bar, as to the maintainance of the aged negro Tibby. We do not decide that question, as it is one which arises exclusively between two of the defendants, and with which the plaintiffs have no concern.

Per Curiam.

Declared accordingly.