Final decrees of the Court of Appeals of the District of
Columbia in respect of final settlements in the Orphans' Court may
be reviewed in this Court on appeal.
Where, in a controversy between an executrix and next of kin, a
decree of the Orphans' Court approving the final account of the
executrix has been reversed by the Court of Appeals on the appeal
of the next of kin, and the cause remanded that the account might
be restated in accordance with the principles set forth in the
opinion of the Court of Appeals, involving a recasting of the
entire account, the decree of the Court of Appeals is not
final.
The Court of Appeals of the District of Columbia, sitting as an
Orphans' Court, has jurisdiction over the settlement of estates,
and controversies in relation thereto between the next of kin and
the executrix, and resort to the chancery court is unnecessary.
Certain familiar rules of construction of wills reiterated: (a)
that the intention of the testator must prevail; (b) that the law
prefers a construction which will prevent a partial intestacy to
one that will permit it, if such a construction may reasonably be
given; (c) that the courts in general are averse from construing
legacies to be specific.
Ademption is the extinction or withdrawal of a legacy in
consequence of some act of the testator equivalent to its
revocation or clearly indicative of an intention to revoke.
In this case, in view of the general intention of the testator
as plainly shown by the provisions of his will taken together, and
of the rules against partial intestacy and against treating
legacies as specific, the bequest of money as therein made to
testator's widow is construed not to have been a specific legacy,
but rather in the nature of a demonstrative legacy, and a change,
between the date of the will and the death of the testator,
Page 179 U. S. 607
from money into bonds
held not to be an ademption, and
so a rule of law rather than a question of intention.
This was a proceeding for the settlement of the final account of
Mary Louise Kenaday, as executrix of Alexander M. Kenaday, in the
Supreme Court of the District of Columbia, holding a special term
for Orphans' Court business. Alexander M. Kenaday died in the
District of Columbia, March 25, 1897, leaving a will, which was
probated in the Orphans' Court of the District at the April term,
1897, and was as follows:
"In the name of God, Amen. I, Alexander McConnell Kenaday,
resident of Washington, District of Columbia, being of sound and
disposing mind and memory, calling to mind the frailty and
uncertainty of human life, and being desirous of settling my
worldly affairs and directing how the estates which it has pleased
God to bless me shall be disposed of -- after my decease -- while I
have strength and capacity so to do, do make and publish this last
will and testament, hereby revoking and making null and void all
other last wills and testaments by me heretofore made. And first I
commend my mortal being to Him who gave it, and my body to the
earth, to be buried with [as
*] as little expense by my
executor hereinafter named."
"
Imprimis. My will is that all my just debts and
funeral charges shall be paid out of my estate, by my
executrix."
"
Item. I give, devise and bequeath to my beloved wife,
Mary Louise Kenaday, all my real estate, household furniture, and
claims pending in the courts in relation to said real estate,
to-wit:"
"House and lot known as No. 507 & 509 on F Street,
Northwest, Washington, D.C., lot No. 2 (east half) of square 482,
30 x 101.10."
"House and lot known as No. 621 H Street, Northwest, lot No. 483
sq. No. 483, 20 3/4 x 133 to an alley."
"House and lot known as No. 2006 G Street, Northwest, lot No. 25
in square No. 103, 20 3/4 x 120 ft. to an alley. "
Page 179 U. S. 608
"And I hereby authorize my wife, as executrix, to convey by
deeds in fee simple any or all of said real estate in accordance
with the laws of the District of Columbia under the advice of some
competent attorney."
"
Item. Included as claims pending in the courts are an
account for taxes against the estate of De Vaughn v. De Vaughn,
unjustly withheld, in charge of my attorney Woodbury Wheeler, Esq.
Also, an account for moneys withheld by the trustees of Edwards v.
Maupin, in charge of my attorney Frank W. Hackett, Esq., amounting
to $1,078 with interest at six percent per annum from March 7,
1888."
"Also, my business as a claim agent and as publisher of 'The
Vedette,' together with all books, papers, files, office furniture
&c. &c. Also, 200 shares of Sutro Tunnel stock and Comstock
bonds; also, notes and evidences of indebtedness to me, of more or
less value; also, deposits of currency entered on my bank book of
the National Metropolitan Bank, amounting to $10,000.00, more or
less."
"
Item. I give, devise and bequeath to my beloved sister
Arabella D. Sinnott, residing in New Orleans, La., twelve thousand
dollars in registered U.S. 4 % bonds, on special deposit in the
National Metropolitan Bank."
"
Item. I give, devise and bequeath to the surviving
children of my deceased sister, Martha J. Piles, out of the residue
of 4% bonds deposited as aforesaid ($3,500.00) as follows: To Mrs.
Belle Hubert, $500.00. To Wm. A. Piles, $500.00. To Ida Piles,
$500.00. To Eloise Piles, $500.00. To Edith K. Piles, $750.00. To
Henry C. Piles, $250.00."
"
Item. The promissory note for $1,100.00 filed with a
chattel mortgage in my name in the office of the recorder of deeds
in the District of Columbia, signed by Mrs. Anna Hemenway, shall be
cancelled, and my executrix may allow Mrs. Hemenway $500 in
settlement of her account."
"The bond of the City of Richmond, for $5,000.00 bearing 5
percent interest, payable January and July (on special deposit with
the 4%, bonds of the U.S. in the National Metropolitan Bank) is
hereby devised and bequeathed to my wife and executrix. "
Page 179 U. S. 609
"The sum of $5,000.00 advanced to Wm. C. McGeorge of San
Francisco, California, no account of which has been rendered by
him, is hereby devoted to the relatives of my wife, and used
according to her discretion."
The will was subscribed by the testator April 3, 1894, in the
presence of three witnesses, whose attestation was sworn to.
Mrs. Kenaday duly qualified as executrix, and proceeded in the
discharge of her duties. On June 10, 1898, under the order of the
Orphans' Court, the executrix gave notice, appointing Friday, July
8, 1898, as the day for the settlement of her final account as
executrix by that court, and for making distribution of the estate
under its orders.
Arabella D. Sinnott, William A. Piles, Ida Piles Miller, and
Belle Hubert appeared and filed their petition, claiming as
distributees as the only surviving next of kin and heirs at law of
the decedent. They admitted the receipt from the testatrix of their
respective legacies under the will, and that another legatee
therein named, Edith K. Piles, since dead, had also received her
legacy, and said:
"The other two legatees, to-wit, Henry C. Piles, and Eloise
Piles, have not been paid the amounts left them, the said Eloise
having died before the testator, Alexander M. Kenaday, and the said
Henry C. not having been heard from during the last six years and
who your petitioners believe is dead."
The final account of the executrix was made up and filed July
15, 1898, showing that she charged herself with a $5,000 bond of
Richmond, Virginia; $24,500 United States registered bonds; 200
shares stock Comstock Tunnel Company and one certificate of scrip
of that company, appraised as valueless; cash found on deposit in
National Metropolitan Bank, $810.60, and some items of interest,
etc.; that the Hemenway note had not been found; that she credited
herself with disbursements for costs, funeral expenses, etc.; with
commissions, and with legacies paid or otherwise satisfied, but not
including therein the $810.60 on deposit, and that there was in her
hands $9,218.76, "consisting mainly of United States bonds and
deposits in bank," which the executrix credited herself with "on
account
Page 179 U. S. 610
of the bequest to her by the testator of "notes and evidences of
indebtedness to me," "deposits of currency entered on my bank
book," and other personal estate," and thus balanced and closed the
account in full.
The intervening next of kin claimed the balance on the ground
that it was residuary estate, and that, there being no residuary
clause in the will, it necessarily belonged to them, and filed
their exceptions to the account as stated, particularly excepting
to the credit of the $9,218.76.
A certificate of the Register of the Treasury was filed, to the
effect that the records of his office showed that registered four
percent bonds of the United States were standing in the name of
Alexander M. Kenaday on the 1st day of April, 1897, to the amount
of $24,500; of which, bonds to the amount of $15,500 bore date
April 23, 1889, and bonds to the amount of $9,000 bore date April
1, 1895.
The Orphans' Court, Hagner, J., presiding, on October 11, 1898,
overruled the exceptions and approved the final account of the
executrix as stated. All said next of kin thereupon appealed from
this order to the Court of Appeals for the District of
Columbia.
At the January term, 1899, the cause was heard, the order was
reversed with costs, and the cause was remanded to the court below
with a direction "that the account be restated in accordance with
the principles of the opinion of this Court." 14 App.D.C. 1. The
mandate having gone down, the account of the executrix was restated
as directed by the Court of Appeals, and approved February 10,
1899.
The balance for distribution according to that account was
stated to be $8,285.64, and the distributive shares as follows:
To Arabella D. Sinnott, sister, 1/2 . . . . . . . $4,142.82
To Mrs. Belle Piles Hubert, niece, 1/5 of 1/2 . . 828.56
To Edith K. Piles, " " " " . . 828.56
To Ida Piles Miller, " " " " . . 828.56
To William A. Piles, nephew, " " " . . 828.56
To Henry C. Piles, " " " " . . 828.56
Fractions . . . . . . . . . . . . . . . . . . . . .02
---------
$8,285.64
Page 179 U. S. 611
[611]
On the same tenth of February, Mrs. Kenaday was ordered to pay
over and deliver to the said Arabella D. Sinnott, through her
attorneys of record, the sum of $4,142.82, being her distributive
share of said estate, taking receipt for the same. Thereupon Mrs.
Kenaday appealed in open court to the Court of Appeals from the
order of February 10 approving and passing the account, and from
the order directing the distribution to Arabella D. Sinnott of the
amount therein mentioned as her share. An appeal bond in the sum of
$8,000 running to Arabella D. Sinnott, to operate as a supersedeas
to the order directing the payment to her of $4,142.82 was required
by order of court, and it was also directed that the penalty of a
bond for costs in the matter of the appeal from the order approving
the account, filed the same day, be fixed at $50, or in lieu of
such bond for costs, a deposit of that amount in cash. A
supersedeas bond in the penalty of $8,000 was approved, filed, and
recorded, and $50 was deposited in lieu of bond on appeal from the
order approving the account. The Court of Appeals filed an opinion
per curiam that, on examining the transcripts of record, it was
found that the court below had, in the restatement of the account,
followed and observed the mandate sent down on the former appeal,
and that it was ordered that the motion made by the said Arabella
D. Sinnott to dismiss or affirm the order of the court below
approving and passing said final account of the estate, under rule
sixteen of the court, be denied, but that the said final order of
said court approving and passing said account, the same bearing
date the tenth day of February, 1899, on the appeal of the said
Mary L. Kenaday, executrix, be affirmed, "the said account
appearing to be stated in accordance with the mandate of this Court
issued on the former appeal." Thereupon judgment was entered April
5, 1899,
"that the order of the said supreme court in this cause, of
February 10, 1899, approving and passing account be, and the same
in hereby, affirmed with costs."
A writ of error to remove the cause to this Court was thereupon
allowed by that court, and issued, a supersedeas bond being given
and approved. Subsequently the executrix, being in doubt whether
the proceedings to obtain a review should be by writ of error, or
appeal, prayed an appeal, which
Page 179 U. S. 612
was granted in these words:
"On motion of Mary L. Kenaday, executrix, by her attorney, and
it appearing to the court that the practice in cases exactly of the
character of the present one has not been established by precedent,
it is adjudged and ordered by the court this 17th day of April,
1899, that said executrix be, and she is hereby, allowed an appeal
from the order of this court passed herein April 5, 1899, and that
the same bond in the sum of $10,000 to act as a supersedeas upon
the issuing a writ of error in this case, shall stand and act as a
supersedeas upon said appeal, or according as a writ of error or
appeal is ultimately decided to be the method of obtaining a review
of the decision of this Court in said cause."
The supersedeas bond was in the sum of $10,000, and ran to
Arabella D. Sinnott, William A. Piles, Ida Piles Miller, and Belle
Hubert.
MR. CHIEF JUSTICE Fuller delivered the opinion of the Court.
The Court of Appeals allowed a writ of error to review its
decree approving the final account, and, a few days subsequently,
and at the same term, in view of the fact that the practice in
cases of this precise character had not been established, also
allowed an appeal, the supersedeas bond on the writ to stand on the
appeal if appeal were determined to be the correct method of
procedure. The cause was docketed in this Court as on writ of
error, and as on appeal, and appellees or defendants in error move
to dismiss the appeal because the writ of error had previously
issued, and the writ of error because the remedy was by appeal. We
must decline, however, to sustain both motions on these grounds
under the circumstances. The determination of the proper course to
be taken in seeking our jurisdiction will dispose of one motion or
the other.
Page 179 U. S. 613
By section 8 of the Act of February 9, 1893, 27 Stat. 434, c.
74, final judgments or decrees of the Court of Appeals are to be
reexamined by this Court on writ of error or appeal in the same
manner and under the same regulations as theretofore provided in
cases of writs of error or appeals from judgments in the Supreme
Court of the District of Columbia.
In
Ormsby v. Webb, 134 U. S. 47, it
was ruled that a writ of error would lie to review a judgment of
the Supreme Court of the District of Columbia admitting a will to
probate, not merely because in that case a trial by jury had been
actually had, but upon the more general grounds thus stated by MR.
JUSTICE HARLAN:
"It is, of course, undisputed that a final decree in equity in
the court below cannot be reviewed here by means of a writ of
error. But a proceeding involving the original probate of a last
will and testament is not strictly a proceeding in equity, although
rights arising out of, or dependent upon, such probate have often
been determined by suits in equity. In determining the question of
the competency of the deceased to make a will, the parties have an
absolute right to a trial by jury, and to bills of exceptions
covering all the rulings of the court during the progress of such
trial. These are not the ordinary features of a suit in equity. A
proceeding in this District for the probate of a will, although of
a peculiar character, is nevertheless a case in which there may be
adversary parties, and in which there may be a final judgment
affecting rights of property. It comes within the very terms of the
act of Congress defining the cases in the Supreme Court of this
District, the final judgments in which may be reexamined here. If
it be not a case in equity, it is to be brought to this Court upon
writ of error, although the proceeding may not be technically one
at law, as distinguished from equity."
And see Campbell v. Porter, 162 U.
S. 478.
But while that is the established rule in that class of cases,
it by no means follows that it is applicable in this case.
At common law, jurisdiction over the estates of deceased persons
vested in the ecclesiastical, common law, and chancery courts, and,
in this country, courts of probate or orphans' courts have
universally been created by statute for the general exercise
Page 179 U. S. 614
of that jurisdiction, including the exercise of equitable, as
well as common law, powers and the pursuit of appropriate
procedure.
The district supreme court sits as an orphans' court, and, by
section 1 of subchap. 15 of c. 101 of the Maryland testamentary Act
of January 20, 1799, 2 Kilty, November Session, 1798, the Orphans'
Court was instituted
"for the purpose of taking the probate of wills, granting
letters testamentary and of administration, directing the conduct
and settling the accounts of executors and administrators, securing
the rights of legatees, superintending the distribution of the
estates of intestates, securing the rights of orphans and legatees,
and administering justice in all matters relative to the affairs of
deceased persons, according to law."
By other sections, it is made the duty of the executor or the
administrator, on settlement of his account, to deliver up the
estate or deliver up and distribute the surplus or residue.
And by section 12, of subchap. 15, it is provided that
"the Orphans' Court shall have full power, authority, and
jurisdiction to examine, hear, and decree upon, all accounts,
claims, and demands, existing between wards and their guardians,
and between legatees, or persons entitled to any distributable part
of an intestate's estate, and executors and administrators, and may
enforce obedience to, and execution of, their decrees, in the same
ample manner as the court of chancery may."
There can be no question that the District Supreme Court was
clothed, as an Orphans' Court, with ample powers to proceed in the
settlement of estates and the distribution thereof to those
entitled, in accordance with equitable principles and procedure,
and we think that the controversy raised by the exceptions of the
next of kin to this final account was in its nature of equitable
cognizance, and that the decree of the Court of Appeals is properly
reviewable on appeal, rather than on writ of error.
The reasoning which conducts to this conclusion in proceedings
of this character in effect disposes of the contention of appellant
that the decree should be reversed because the Orphans' Court had
no jurisdiction over an alleged residue of personalty
Page 179 U. S. 615
in the hands of an executrix undisposed of by the will, as
jurisdiction over it belonged solely to a court of equity as a
matter of trust. Alvey, C.J., in the opinion reported 14 App.D.C.
1, 21, discussed the subject at length, and, among other things,
said:
"The executor, as is well understood, derives his title as
executor from the will of the testator, but he takes no beneficial
interest in the undisposed of surplus or residue of the personal
estate by mere implication or construction, as by the former
English rule. It is true every executor is, in a certain sense and
to a certain extent, a trustee for all persons interested in the
preservation and distribution of the personal estate of the
testator, and he is equally so in respect of the surplus or residue
of the estate undisposed of by the will, as of any other portion of
the estate. He takes the estate under the will for purposes of
administration and of distribution to those entitled, and while a
court of equity has a long established jurisdiction in all matters
of trust, of account, of administration, and of construction, in
the settlement of estates, yet such jurisdiction is not exclusive
of the very ample jurisdiction conferred on the Orphans' Courts of
Maryland, and the special term of the Supreme Court of this
District for Orphans' Court business, by the Testamentary Act of
1798, c. 101. That act embodies in its various provisions a
testamentary and administrative system intended to be complete in
itself."
The Chief Justice then gave a
resume of the act, and
quoted the sections to which we have already referred.
There being a controversy over the distribution between the next
of kin and the executrix, we are entirely satisfied that the powers
vested in the Orphans' Court gave it jurisdiction to dispose
thereof, and that appellees were not compelled to go into the
equity court.
Appellees also moved to dismiss both the writ of error and the
appeal on the ground that the judgment of the Court of Appeals on
the first appeal was a complete and final decree, settling and
fixing the rights of the parties, and that appellant, because she
did not appeal therefrom, was concluded from any review by this
Court of the matters then considered.
We do not think so. On the appeal of the next of kin, the
Page 179 U. S. 616
Court of Appeals reversed and remanded the cause "that the
account be restated in accordance with the principles of the
opinion of this Court."
The account was to be entirely recast under the mandate, and the
determination of who were the next of kin, the proportions they
should take, the effect of the death of one or more of them, and
any other questions that might arise, were remitted to the court
below. The settlement was to be a final settlement, and the decree
reversing and remanding that such a settlement might be had on the
principles indicated was not final so as justify an appeal by the
executrix therefrom, although, had it been a decree of affirmance,
the present appellees might have appealed.
We come, then, to the case upon the merits, and it must be
determined on the correct construction of the will, arrived at in
accordance with well settled applicable rules.
The cardinal rule is that the intention of the testator
expressed in his will, or clearly deducible therefrom, must
prevail, if consistent with the rules of law. And another familiar
rule is that the law prefers a construction which will prevent a
partial intestacy to one that will permit it, if such a
construction may be reasonably given. And, in principle, this must
be so when it is contended that the executor takes merely for next
of kin claiming as distributees of an alleged undisposed-of
residue.
The general intention of the testator in this instance is
perfectly clear. The will was inartificially drawn, but its various
provisions, taken together, put it beyond doubt that he intended to
dispose of all his property, and we think that he accomplished that
purpose. In doing so, all property not expressly given another
destination was in substance devised and bequeathed to his wife,
including some $10,000 on deposit. His intention that she should
thus take is evident. And if by the will he disposed of all the
property he had, there appeared no necessity for a technical
residuary clause.
The property enumerated in the will was the property he owned at
the time of his death, except that there was but $810.60 on deposit
in bank, and he had $9,000 in United States bonds more than when
the will was executed. These bonds
Page 179 U. S. 617
were of a subsequent date to that of the execution of the will,
and were necessarily, therefore, purchased afterwards.
The will, executed April 3, 1894, referred to $15,500 of bonds,
and at his death, he had bonds for $24,500, $15,500 dated April 23,
1889, and $9,000 dated April 1, 1895.
The question then really comes to this: whether an irrebuttable
presumption arises that the testator, by reducing the amount of
money on hand at the date of his will, intended that the amount of
such reduction, though remaining in his assets in another form,
should be distributed to his next of kin, rather than that his wife
should receive it.
And it is to be observed at the outset that to each of the next
of kin he made a bequest. To his sister, Mrs. Sinnott, a specific
legacy of $12,000 of the $15,500 of bonds, and to the children of a
deceased sister legacies aggregating $3,000 out of the $3,500 of
bonds remaining after the delivery of the $12,000 to Mrs. Sinnott.
Certain enumerated promissory notes were otherwise disposed of, and
all the rest of his property, real estate, household furniture,
Richmond City bond, money, etc., was devised and bequeathed to his
beloved wife. There was indeed an apparent surplus of $500 of the
$3,500 of bonds, but the allowance to Mrs. Hemenway of $500
immediately followed the bequests to the next of kin.
At his death, there were on hand $9,000 more in bonds, and
$9,000 less in money. Do the rules of law require it to be held
that, by this change, he intended to withdraw so much from what he
had designed his wife to have, and to bestow it on the next of kin
in addition to what he had originally expressly given them?
The question involved is one of ademption, and not of
satisfaction. Without going into refinements in respect of the
definition of the word "ademption," it may be said to be the
extinction or withdrawal of a legacy in consequence of some act of
the testator equivalent to its revocation, or clearly indicative of
an intention to revoke. The satisfaction of a general legacy
depends on the intention of the testator as inferred from his acts,
but the ademption of a specific legacy is effected by the
extinction of the thing or fund bequeathed, and the intention that
the legacy
Page 179 U. S. 618
should fail is presumed. At least a different intention in that
regard which is not expressed will not be implied, although the
intention which is expressed relates to something which has ceased
to exist.
Williams on Executors says, in reference to the different kinds
of legacies, that,
"a legacy is general when it is so given as not to amount to a
bequest 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. . . . A legacy of
quantity is ordinarily a general legacy, but there are legacies of
quantity
in the nature of specific legacies, as of so much
money, with reference to a particular fund for payment. This kind
of legacy is called by the civilians
a demonstrative
legacy, and it is so far general, and differs so much in
effect from one properly specific, that if the fund be called in or
fail, the legatee will not be deprived of his legacy, but be
permitted to receive it out of the general assets; yet the legacy
is so far specific that it will not be liable to abate with
general legacies upon a deficiency of assets."
Vol. 2, p. 1158. And he adds:
"The courts in general are averse from construing legacies to be
specific, and the intention of the testator, with reference to the
thing bequeathed, must be clear."
These rules are considered and applied in well nigh innumerable
cases. Many of them will be found cited in the notes to
Ashburner v. Macguire, 2 White and Tudor's Leading Cases
in Equity, Part II, Fourth American Edition from Fourth London
Edition, p. 600.
In
Walton v. Walton, 7 Johns.Ch. 258, Chancellor Kent
reviews the subject at large with his usual ability, and criticizes
the observation of Lord Thurlow in
Stanley v. Potter, 2
Cox 180, that the question in these cases does not turn upon the
intention of the testator, saying:
"But I apprehend the words of Lord Thurlow are to be taken with
considerable qualification, and that it is essentially a question
of intention, when we are inquiring into the character of the
legacy, upon the distinction taken in the civil law between a
demonstrative legacy, where
Page 179 U. S. 619
the testator gives a general legacy, but points out the fund to
satisfy it, and where he bequeaths a specific debt."
In
Wilcox v. Wilcox, 13 Allen 256, Wells, J., said:
"Courts do not incline to construe legacies to be specific, and
will not do so unless such be the clear intention of the testator.
Kirby v. Potter, 4 Ves. 748;
Attorney General v.
Parkin, Ambl. 566;
Briggs v. Hosford, 22 Pick. 288;
Boardman v. Boardman, 4 Allen 179. If a legacy be given,
with reference to a particular fund only, as pointing out a
convenient mode of payment, it is to be construed as demonstrative,
and the legatee will not be disappointed though the fund wholly
fail."
In
Tifft v. Porter, 8 N.Y. 516, Johnson, J., speaking
for the majority of the court, said:
"A legacy is general when it is so given as not to amount to a
bequest of a particular thing or money of the testator
distinguished from all others of the same kind. It is specific when
it is a bequest of a specified part of the testator's personal
estate which is so distinguished. . . . The inclination of the
courts to hold legacies to be general, rather than specific, and on
which the rule is based that to make a legacy specific, its terms
must clearly require such a construction, rests upon solid grounds.
The presumption is stronger that a testator intends some benefit to
a legatee than that he intends a benefit only upon the collateral
condition that he shall remain, till death, owner of the property
bequeathed. The motives which ordinarily determine men in selecting
legatees are their feelings of regard, and the presumption, of
course, is that their feelings continue and they are looked upon as
likely to continue. An intention of benefit being once expressed,
to make its taking effect turn upon the contingency of the
condition of the testator's property being unchanged, instead of
upon the continuance of the same feelings which in the first
instance prompted the selection of the legatee, requires, as it
ought, clear language to convey that intention."
And so Alvey, C.J., in
Gelbach v. Shively, 67 Md.
498:
"Ordinarily a legacy of a sum of money is a general legacy, but
where a particular sum is given, with reference to a particular
fund for payment, such legacy is denominated in the law a
demonstrative legacy, and such legacy is so far general, and
Page 179 U. S. 620
differs so materially in effect from one properly specific,
that, if the fund be called in or fail, or prove to be
insufficient, the legatee will not be deprived of his legacy, but
he will be permitted to receive it out of the general assets of the
estate.
Dugan v. Hollins, 11 Md. 77. But such legacy is so
far specific that it will not be liable to abate with
general legacies upon a deficiency of the assets except to
the extent that it is to be treated as a general legacy after the
application of the fund designated for its payment.
Mullins v.
Smith, 1 Drew. & Sm. 204; 2 Wms.Exrs. 995. The authorities
seem to be clear in holding that whether a legacy is to be treated
as a demonstrative legacy or is one dependent
exclusively
upon a particular fund for payment is a question of construction,
to be determined according to what may appear to have been the
general intention of the testator. . . . It is certainly true, as a
general proposition, as was said by the Vice Chancellor in
Dickin v. Edwards, 4 Hare 276, that where a testator
bequeaths a sum of money in such a manner as to show a separate and
independent intention that the money shall be paid to the legatee
at all events, that intention will not be held to be controlled
merely by a direction in the will that the money is to be raised in
a particular way, or out of a particular fund."
These references, and rulings of similar import are legion,
serve to illustrate the governing principles. The intention of the
testator must prevail, and legacies will not be held specific when
the result would be that the mere transmutation of money into
securities raised an irrebuttable presumption of ademption
inconsistent with the intention of the testator as plainly
deducible from all the terms of his will taken together.
As we have already stated, the general intention of the testator
in this case was to leave all his property to his wife except what
was expressly otherwise disposed of, and among the clauses inserted
in effectuation of that result were these:
"Also, my business as a claim agent and as publisher of 'The
Vedette,' together with all books, papers, files, office furniture
&c. &c. Also 200 shares of Sutro tunnel stock and Comstock
bonds; also, notes and evidences of indebtedness to me, of more or
less value; also, deposits of currency entered on my bank book
of
Page 179 U. S. 621
the National Metropolitan Bank amounting to $10,000.00, more or
less."
If the latter item stood alone and were not read in connection
with the will as a whole, it might well be that it should be held
to be a specific legacy, adeemed
pro tanto by the use of
the money except $810.60 in the purchase of additional bonds, or
otherwise. But, taken in connection with all the provisions of the
will, with the manifest general intention of the testator, and with
the rules against partial intestacy and against treating legacies
as specific if that construction can be avoided, we think that it
should be regarded as in its nature a demonstrative legacy, and not
adeemed by the change from money into property.
Assuming that the testator had at the date of the will about
$10,000 on deposit in the bank, his intention was clear that his
wife should receive the amount, and we are of opinion that we ought
not to defeat that intention by holding that the pecuniary legacy
was specific, and that the subsequent change was an ademption, and
so a rule of law, rather than a question of intention.
In
Towle v. Swasey, 106 Mass. 100, a legacy of
"whatever sum may be on deposit" in a certain savings bank was held
to be specific, but there the provisions of the will evidenced no
intention to the contrary, and the language used essentially
differed from that in this case.
It results that Mrs. Kenaday was entitled to credit herself with
the $9,218.76, and that the original decree of the Orphans' Court
was correct. But, in view of the lapse of time and the course of
the litigation, we shall simply reverse the decree of the Court of
Appeals and remand the cause to that court with a direction to
remand it to the court below for a restatement of the final account
in accordance with the views we have expressed.
So ordered.
MR. JUSTICE BREWER and MR. JUSTICE PECKHAM dissented.
* Word enclosed in brackets erased in copy.
