Smith's Appeal , 103 Pa. 559 ( 1883 )

Mr. Justice Tiuinkey

delivered the opinion of the court,

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 as distinguished from all others of the same kind. If made payable primarily out of a specified fund it is called demonstrative. A specific legacy is a bequest of a specified part of the testator’s estate which is so distinguished. A general or demonstrative legacy is not adeemed by the sale or change of the fund ; but generally a specific legacy is revoked by a sale or change of form of the thing bequeathed. Courts are averse to construing legacies to be specific, and will not unless it be clear that the testator so intended. Where a legacy is bequeathed out of a debt generally, it is demonstrative, and if the debt be not in existence at the testator’s death, or be insufficient to pay the legacy, the legatee will be entitled to satisfaction out of the general estate. In view of these principles, which were uneontroverted at the argument, the real question in dispute is, whether the testator intended to give his sons, Samuel and William, so much money, primarily payable out of the debt owing by the bank, or to give to each a part of that debt.

It appears that the testator did not know, the exact amount of the debt, or how much thereof would be collectible ; nor did he wish to equally divide the money or debt between his sons. He gave to Samuel $2,000, to William $1,500, and the residue to be divided equally between them. The whole of the money, the entire fund, is given — the money and fund areundistinguishable. When the legacy is so connected with the fund out of which it is payable, that the legacy and fund are the same, it is specific; as if I bequeath to B. the money now owing to me from A. or in the hands of A., or the money due to me on the bond of A., the legacy is specific: Welsh’s Appeal, 28 Pa. St. 363. Certain parts of the money dne to the testator on the deposit are given to each son, and the money thus given is the whole deposit owing by the bank.

The giving to each a certain portion — to both the whole— is indicative of an intent to give that fund — not so much money out of the estate if the fund failed. The phrase, “I give and bequeath to my son Samuel the sum of $2,000 out of the sum of near $4,000 now on deposit in the bank,” by itself, would vest a demonstrative legacy; but the testator added, “ providing the said amount and interest is collected from the assets or stockholders of said bank.” Manifestly, the word “ providing ” is used in the sense of “ provided,” and means upon condition, or with the understanding, that said $2,000 shall be collected out of that debt. Then, if it should not be collected out of the specified debt, it was not to be paid. Here, also, the intention seems to be to limit payment of the legacy to the fund itself.

' We are of the opinion that the legacies to -Samuel Smith and William Smith are specific, and were adeemed, and that the whole fund should be distributed to the next of kin according to the intestate laws.

• Decree reversed at the costs of the appellees, and record remitted for further proceeding.