In Re Preston's Estate , 157 Or. 631 ( 1937 )

The question is whether the legacy in the third paragraph of the will is specific or demonstrative; that is to say, whether the testatrix intended the respondent, Byrne Marconnier, to have $5,000 only in the event that sufficient moneys for that purpose should be derived from the contract between the testatrix and her former husband, Charles Bliss Preston, or whether the gift was a general one, payable at all events, the proceeds of the contract being indicated only as a convenient source of payment.

Legacies are either general or specific. A general legacy is one which does not necessitate delivering any particular thing or paying money out of any particular portion of the estate. But a specific legacy is the converse of this, or where a particular thing must be delivered, according to the terms of the bequest, or money paid out of some particular portion of the estate: 4 Schouler on Wills (6th Ed.) p. 2554, § 3057.

"A demonstrative legacy", the court said, in Nusly v. Curtis,36 Colo. 464 (85 P. 846, 7 L.R.A. (N.S.) 592, 118 Am. St. Rep. 113, 10 Ann. Cas. 1134, "partakes both of the nature of a general and specific legacy. It is a gift of money or other property charged on a particular fund in such a way as not to amount to a gift of the corpus of the fund, or to evince an intent to relieve the general estate from liability in case the fund fails. A specific bequest is subject to ademption, but such is not true of a general, or a demonstrative legacy."

The following frequently cited general statement of the law governing this subject is taken from Walls v. Stewart, 16 Pa. 275 :

"If a legacy be given with reference to a particular fund, only as pointing out a convenient mode of payment, it is considered demonstrative, and the legatee will not be disappointed though the fund totally fail. But where the gift is of the fund itself, in whole or in part, or so charged upon the object made subject to it as to show an intent to burden that object alone with the payment, it is esteemed specific, and consequently liable to be adeemed by the alienation or destruction of the object. In this, as in other questions springing from the construction of wills, the intention of the testator is principally to be ascertained, and it is said to be necessary that the intention be either expressed in reference to the thing bequeathed, or otherwise clearly appear from the will, to constitute a legacy specific. If it be manifest there was a fixed and independent intent to give the legacy, separate and distinct from the property designated as the source of payment, the legacy will be deemed general or demonstrative, though accompanied by a direction to pay it out of a particular estate or fund specially named."

See also 2 Page on Wills, (2d Ed.) p. 2049; Georgia Infirmaryv. Jones, 37 Fed. 750, 753; Nusly v. Curtis, supra.

The courts are inclined to hold legacies to be demonstrative, rather than specific, both because the presumption is stronger that the testator intends some benefit to a legatee rather than that he intends a benefit only upon the collateral condition that he shall remain until death the owner of the property bequeathed, and because specific legacies are not liable to contribution in case a deficiency of assets: Tift v. Porter, 8 N.Y. 516;Gardner v. McNeal, 117 Md. 27 (82 A. 988, 40 L.R.A. (N.S.) 553, Ann. Cas. 1914A, 119).

In Noon's Estate, 49 Or. 286, 293 (88 P. 673, 90 P. 673), this court said:

"Specific bequests are not favored, and, unless the will clearly disclosed the testator's intent to give the thing mentioned, the donation will not be considered of that class: 18 Am. Eng. Enc. Law 2d, 715. In assigning a reason for this legal principle, Mr. Justice Sawyer says: `Courts have always leaned strongly against construing a legacy as specific when there is any doubt, and such a rule of construction is usually far more favorable to the legatee; for a specific legacy is liable to be adeemed, and therefore entirely lost': In re Estate of Woodworth, 31 Cal. 595. "

In 4 Schouler on Wills, (6th Ed.) p. 2556, § 3057, it is said that no direction out of what fund the legacy shall be raised will render that legacy specific unless the clear intent was to transfer all or a part of the same identical fund.

In doubtful cases, therefore, where the language of a will is susceptible of being construed either as a specific or as a demonstrative legacy, the courts lean to the construction which will regard it as demonstrative: Gardner v. McNeal, supra; 4 Schouler on Wills, (6th Ed.) p. 2557, § 3058.

These principles have been long entrenched in the law of wills and have been applied in a multitude of cases in this country and in England. The decisions, cannot, perhaps, in all instances be reconciled because it is frequently a matter of difficulty to determine from the language of a will whether the testator intended to make the gift an exclusive charge upon a particular fund or security, or has merely indicated such fund or security as a convenient source or mode of payment. Yet, in general, in the absence of circumstances indicating a contrary intention, the construction adopted has been that suggested by the following excerpt from Walls v. Stewart, supra:

"A familiar instance, given in the last book cited, (Ward on Legacies 21) is of a bequest of 10 pounds, which J.S. owes tothe testator: when in truth J.S. does not owe any such money, the gift fails; but if he gives 10 pounds, and wills that the same be paid out of the money he has in a certain place, or out of a particular debt due to him, the devise is good, notwithstanding there should appear to be no money in the place or no such debt owing." To the same effect, see 6 A.L.R. 1370.

The distinction is pointedly illustrated in some of the more recent cases. Thus, in Nusly v. Curtis, supra, the court held specific a bequest of "any and all sums of money which may at any time hereafter become due and payable to me or my estate by or under any insurance policy upon the life of my husband * * * which may have heretofore been issued". This was not, the court held, a gift "out of" or "from the proceeds of" any insurance policy, but was a gift of the entire fund itself and could not therefore be called a demonstrative legacy. But, inByrne v. Hume, 86 Mich. 546 (49 N.W. 576); Kramer v. Kramer, 119 C.C.A. 482 (201 Fed. 248), and Cascaden's Estate, 8 Phila. (Pa.) 582, there were gifts of specific sums made payable out of the proceeds of life insurance policies, and in each instance the bequest was determined to be demonstrative.

So, in Maxim v. Maxim, 129 Maine 349 (152 A. 268,73 A.L.R. 1244), the will recited that the testator had a certain note and mortgage in a bank "which said note and interest thereon the said Fidelity and Trust Company is to collect for me, when said money becomes due". Then followed several bequests of which this is typical:

"Out of this said amount, I give and bequeath to my beloved grandson, Clarence H. Maxim * * * the sum of two thousand dollars."

The testator collected the proceeds of the note during his lifetime and mingled them with his other property. It was held that the legacies were demonstrative and therefore not adeemed, but should be paid from any other assets of the testator's estate.

Bequests couched in language more or less similar to the language of the wills which we have quoted, were held to be demonstrative in the following cases: Gardner v. McNeal, supra;Matthews v. Targarona, 104 Md. 442, 450 (65 A. 60, 10 Ann. Cas. 153), and In re Miller's Estate, 195 N.Y.S. 253, 118 Misc Rep. 877. Numerous other illustrations are to be found in the exhaustive review of the English authorities contained in the opinion by Bell, J., inWalls v. Stewart, supra. The subject is annotated in 6 A.L.R. 1353 and 73 A.L.R. 1250.

Of the decisions cited by the appellants in support of their contention that the legacy in question is specific and therefore lost because the fund failed, some may be readily distinguished from the instant case. In Warren v. Phebus, 132 Kan. 816 (297 P. 657), the will directed a named person to cash a check made out in his name, and pay the proceeds to certain legatees. There was no gift of a sum of money, and the legacy was held specific in accordance with the rule stated by Mr. Thompson that a mere direction to pay a certain sum of money without words of direct gift does not constitute the gift a demonstrative legacy: Thompson on Wills, (2d Ed.) p. 573, § 483. In Nielsen v.Jepson, 181 Cal. 745 (186 P. 352), the court in holding a legacy specific, said that it should be noted that "the testator does not bequeath any sum of $12,000 or $12,000 out of a specific fund, but the sum of $12,000 which was invested in a specific manner". In Stevens v. Fisher, 144 Mass. 114 (10 N.E. 803), the conclusion that a legacy was not demonstrative was based on the fact to hold otherwise would have rendered impracticable the whole scheme of administration of another fund provided by the will. The decision in Baker v. Baker, 319 Ill. 320 (150 N.E. 284, 42 A.L.R. 1514), is predicated to some extent at least on the fact that the clause in dispute was closely associated with specific devises in other clauses. In the case of Stilpen'sAppeal, 100 Maine 146 (60 A. 888, 4 Ann. Cas. 158), the testator, as the court pointed out, "bequeathed to Mary D. White, $600 of the $1,100 in the hands of her brothers". In the opinion,Byrne v. Hume, supra, was referred to as a good illustration of a demonstrative legacy. As we have seen, the later Maine case ofMaxim v. Maxim, supra, holds a bequest in language similar to that of the will under consideration to be demonstrative. Watersv. Selleck, 201 Ind. 593 (170 N.E. 20), is authority for the appellants' position, but the case which the court cites in support of its decision, in our opinion, fails to sustain it. InGelbach v. Shively, 67 Md. 498 (10 A. 247), there was a legacy in this language: "I give and bequeath, out of the portion or share of my father's estate that may come to me, $1,000 to my brother, Joseph Gelbach", and this is followed by another legacy in identical language to the testator's sister. The court said that this language amounted to no more than a mere testamentary assignment or relinquishment of the testator's interest in his father's estate, to the extent of the legacies mentioned in favor of his brother and sister, if his interest should prove to be of that amount; that the amount necessary to pay the balance of these legacies out of the personal estate of the testator would have to be raised out of the portion given to the testator's wife and children, and that such result would contravene the intention of the testator, as manifested in the general scheme of the will, and by the terms of the bequests themselves.

The question has arisen most frequently, as an examination of the reported cases will disclose, where the fund or security designated as the source of payment was actually in existence at the time of the execution of the will, and afterwards, either through the act of the testator or otherwise, was dissipated or lost. But we apprehend that on a question of the construction of the will it makes no difference whether that be the case or whether, as here, there never was a fund, although the testatrix thought there was. Thus in Cunliffe v. Cunliffe, 23 Week Rep. 724, where legacies were left to be paid out of the sum of 6,000 pounds, which the testatrix erroneously supposed she had coming to her from her father's estate, the court held they were demonstrative legacies and payable out of the general personal estate. And in Mann v.Copland, 2 Madd. 233, where the will directed a legacy to be paid from Navy Five per Cents., and the testator owned no Navy Five per Cents., there was a similar ruling, the Vice-Chancellor saying:

"At the time of the Will the Testator had no Navy Five per Cents.; and, therefore, the Legacy cannot be considered as a specific Legacy out of such Five per Cents. A specific Legacy cannot be given out of what does not exist. It is evident, however nonsensically expressed, that he meant to give 200 pounds out of his Personal Estate, to be set apart as a Fund for the payment of this Legacy. In the absence of Authorities to the contrary, I think here must be considered a positive intent to give this Legacy; and though the mode by which the payment was to be secured, fails, he is yet entitled to have it made good out of the Personal Estate."

The will under consideration contains a direct gift to the testatrix's nephew of the sum of $5,000, "to be paid from monies as and when received from my former husband, Charles Bliss Preston, under and by virtue of that certain agreement," etc. Under the precedents this would seem to be a demonstrative legacy, and we must so hold unless a contrary intention appears either from the will itself or the circumstances attending its execution. We are bound, of course, to "ascertain from the testamentary words, construed according to their natural meaning the intent of the testator, and then give effect to that intent, unless prohibited by some positive rule of law.": In reShepherd's Estate, 152 Or. 15, 33 (41 P.2d 444, 49 P.2d 448). It is also to be borne in mind that the distinction between a specific and demonstrative legacy involves not merely a technical question, depending for its solution solely upon the precise language of the bequest, but a substantial inquiry respecting the intention of the testatrix, as shown by the terms of the particular legacy examined in connection with all of the other provisions of the will,Stilphen's Appeal, supra.

The appellant urges that the word "as" in the legacy should be construed as importing a contingency and cites In re Blake'sEstate, 157 Cal. 448 (108 P. 287), and Colt v. Hubbard,33 Conn. 281. These cases along with Appeal of Seibert, 13 Pa. 501, and Fisher v. Johnson, 38 N.J. Eq. 46, involve the question of whether or not a legacy which is given to a person "as" and "when" he reaches a certain age is vested or contingent, and apply the rule that a legacy given in that language is ordinarily contingent. But these decisions are not apposite. It is self-evident that the payment of the Marconnier legacy from the proceeds of the Preston agreement was contingent upon the existence of such proceeds. If there were no proceeds, there could be no payment from that source. This obvious deduction, however, does not lead to the construction that the Marconnier legacy was not to be paid at all if there were not sufficient moneys for that purpose available from the Preston agreement. The most that can be said is that the language is ambiguous, and, if that be so, it is the court's duty to place upon it the construction which will save, rather than destroy, the gift. To do otherwise would be violative of the established principles of construction to which we have referred.

As we have said, the will was executed on December 30, 1932, and the testatrix died February 20, 1935. The objects of her bounty were her nephew, Byrne Marconnier of New York City, and Eula Cavanaugh Cohan and Frank D. Cohan of Portland, Oregon, the residuary legatees. A niece, Patricia Lynch, and a brother Martin Bernard Lynch, of Walla Walla, Washington, were each left $1. The relationship between Eula Cavanaugh Cohan and Mrs. Preston was one of affection and intimacy. Mrs. Cohan was a niece of William A. Erickson, the testatrix's first husband, and had lived in the home of the Ericksons from her sixth year until the testatrix's divorce, 11 years later. For the next 11 years, approximately, Mrs. Cohan lived in Marshfield and Mrs. Preston in Portland. During that period Mrs. Cohan visited the testatrix two or three times a year, and, on one occasion, during an illness, took care of her for 10 days. In 1921, Mrs. Cohan moved to Portland and from then on until the time of Mrs. Preston's death was with her almost constantly. The evidence indicates that their relations were much like that of mother and daughter.

Byrne Marconnier has been a resident of New York City since 1928. Prior to that time, he had lived in various cities of this country and the Orient. He was born in Seattle and has never lived in Portland, nor in the Pacific Northwest since 1920. He last saw Mrs. Preston in the summer of 1932, during his mother's last illness in Tacoma. At that time the testatrix was with him for the larger part of four months and, after his mother's death, Byrne Marconnier visited Mrs. Preston in Portland. Although they did not see each other frequently, it is nonetheless manifest from the testimony that Mrs. Preston was exceedingly fond of her nephew. During the last three years of her life the two corresponded by letter and telegram and on two occasions she talked to him in New York over the long-distance telephone.

The estate was appraised at $18,448.75, and consists of the following items: Money, $1,386.18; claim against Charles Bliss Preston under the settlement agreement, $17.58; automobile, $75; diamonds and other jewelry, $1,540; silverware, $818; furniture and furnishings in the decedent's home, $3,451; real estate in Portland, Oregon (decedent's home), $11,000. The net value of the estate after paying expenses of administration and inheritance taxes is not yet precisely fixed, but it is agreed by the parties to be approximately $12,000. According to a statement in appellants' brief, which is not disputed, the estate consisted of substantially the same items at the time the will was executed.

Mrs. Preston mistakenly thought that her contract of settlement with her divorced husband called for the payment to her of the sum of $25,000; in fact, there was no such provision in the agreement and the amount collected by the executors thereunder is but $604.05. Thus, if the respondent prevails in his contention, the result will be that the home (which is a part of the residue) must be sold or mortgaged in order to provide the cash for the payment to him of the $5,000 legacy.

It is argued that no such eventuality was in the mind of the testatrix; that both the relations existing between Mrs. Preston and Mrs. Cohan, on the one hand, and with her nephew, on the other, as well as evidence received at the hearing of oral declarations of the testatrix at the time the will was executed and later, manifest an intention on her part that Mrs. Cohan was to have the home. That evidence of such declarations is wholly incompetent and inadmissible, is placed beyond debate by the decisions of the court in the following cases: Hansen v. OregonHumane Society, 142 Or. 104, 118 (18 P.2d 1036); Holohan v.McCarthy, 130 Or. 577, 584 (281 P. 178); Soules v. Silver,118 Or. 96, 104 (245 P. 1069); In re Estate of Hodgkin, 110 Or. 381, 387 (221 P. 169, 233 P. 738). The language of Mr. Justice RAND in Soulesv. Silver, supra, leaves nothing to be said on the subject:

"There was evidence offered and received tending to show oral declarations of the testator to the effect that he intended by this will to provide an income ample for the support of the plaintiff, and other declarations to the effect that she had not helped him to acquire this property in any way, and that he did not intend for her to have anything more than the net income of his real property. These declarations were wholly incompetent and inadmissible. The intention of a testator is to be gathered from the language of the will. In construing wills, the question is not what the testator meant, but what the words used mean. Wills are required to be in writing, and parol evidence cannot be adduced either to contradict, add to or explain the contents of a will. Oral declarations of the testator's intention cannot be resorted to in aid of the exposition of a will, except where a person or thing is described in terms equally applicable to two or more. Here there was no uncertainty of the persons of the devisees, nor of the thing devised. This testimony, therefore, was incompetent and inadmissible. See 1 Greenleaf on Evidence (16 ed.), § 289 et seq., 1 Jarman on Wills (6 Am. ed.), star p. 379 et seq.; Thayer's Preliminary Treatise, 482, 483."

The court is, of course, at liberty to consider the circumstances attending the execution of the will and the relation of the testatrix to the beneficiaries named as an aid in determining her intention, but we are unable to find anything in the facts above stated or in the will itself, taken by its four corners, to overthrow the interpretation demanded by the language of the legacy. Had it been Mrs. Preston's intention to leave Mrs. Cohan and her husband the home, to the exclusion of her nephew, that purpose could have been easily accomplished by a specific devise of the property, just as she made a specific bequest of her diamonds and other jewelry. She was, undoubtedly, devoted to Mrs. Cohan, but she was also fond of Byrne Marconnier, who, besides, was related to her by blood.

He is the son of a deceased sister of the testatrix, and, had she died intestate, would have inherited a substantial portion of her estate by right of representation: Sections 10-101 and 10-102, Oregon Code 1930. The law favors such a construction of a will as will be advantageous to heirs at law and next of kin in preference to strangers; and the heirs of a testator cannot be disinherited upon mere conjecture, by dubious and ambiguous words or negative words, but an intention to disinherit them must be shown clearly, either by express words or by necessary implication: Thompson on Construction of Wills, § 67. Were we to take the appellants' view of the question, we would have to say that Mrs. Preston intended to cut off her nephew without a penny, if the source which she indicated for the payment of his bequest should fail. This, in my judgment, we are not permitted to do, either by the will itself, the extrinsic circumstances which may rightly be considered, or the canons of construction. It seems to me, rather, that she intended what the language of the will, properly interpreted, means, and that is a gift of $5,000 to her nephew, the proceeds of the contract being referred to merely as a primary source of payment. That failing, he is entitled to receive his legacy from the general assets of the estate.

The statement in the majority opinion that, "it is plain that under the residuary clause of the will, testatrix intended the home to go to Eula Cavanaugh Cohan and her husband," is not supported by anything in the will. As has already been stated in this opinion the testatrix made no specific bequest of her home. In Alexander, Commentaries on Wills, Vol. 2, 1002 § 674, it is said: "`Rest' and `residue', in the absence of language showing a contrary intent, are construed to include all the estate remaining after the payment of charges, debts, and particular legacies, including statutory allowances for the maintenance of the widow and the like." All, therefore, that the residuary clause means is that the Cohans were to have such property as remained after making the payments of the character referred to in the foregoing excerpt. If the legacy to Byrne Marconnier is specific, one might naturally conclude that the testatrix intended the Cohans to have her home as part of the residuum; but we are not justified in assuming that to have been her intention and from the premise so assumed arguing that she intended the Marconnier legacy to be limited to the proceeds of the Preston contract.

Nor is it very helpful to point to consequences that might ensue, if the will contained different provisions than those the court is called on to interpret. We must take the language of this will, as we find it, and from that language endeavor to ascertain the testamentary intention. That the task is no easy one may be freely conceded, but it seems to me, after an attentive examination of the authorities and the record in this case, that if we apply settled rules of construction to the question we are more likely to be right, than if we ignore those established aids to the solution of a difficult problem.

For the foregoing reason, I think that the decree of the circuit court should be affirmed.

ROSSMAN and BAILEY, JJ., concur in this dissent.