In Re Eagle's Estate , 5 Wash. 2d 254 ( 1940 )

¹ Reported in 105 P.2d 31; 109 P.2d 1072. [2] See 28 R.C.L. 291 (8 Perm. Supp. 6123). Hattie M. Eagle died testate July 30, 1939. In paragraph I of her will, she bequeathed to "Rev. Ezra P. Giboney one hundred dollars." In paragraph II, she bequeathed to "Katie Brown two thousand dollars." By paragraph III, her surviving husband, Clark Eagle, was made the residuary legatee and devisee.

After the will had been duly admitted to probate and the inventory and appraisement had been filed, the surviving husband petitioned the court for an award of property out of the estate in lieu of homestead, as provided for in Rem. Rev. Stat., §§ 1473 and 1474 [P.C. §§ 9893, 9894]. All the assets of the estate were the separate property of the deceased. There were no children, and there had not at any time prior been a claim for a homestead. The trial court entered an order denying the application, from which the surviving husband appealed.

[1] The question is whether the husband's claim for an award and set-off of property out of the estate in lieu of homestead is superior to the claim of the legatees named in the will; and this depends upon whether the legacies are specific or general bequests. If they are specific, the rights of the legatees are superior, and, on the other hand, if they are general, the surviving husband has the superior right.

[2] A specific legacy is a bequest of a particular thing. The testator must intend that the legatee have the very thing bequeathed, and not merely a corresponding amount in value, or like property. A general legacy is one which is payable out of the general assets of the testator's estate, such as a gift of money or other things in quantity, and not in any way separated or distinguished from other things of like kind. In re Wood'sEstate, 267 Pa. 462, 110 A. 90; Crabtree v. Kelly, 65 N.D. 501,260 N.W. 262; Leighton v. Leighton, 193 Iowa 1299,188 N.W. 922; In re Doepkes' Estates, 182 Wash. 556,47 P.2d 1009.

Under the rule stated, the bequests to Reverend Ezra P. Giboney and Katie Brown were definitely general, and not specific.

The order appealed from will be reversed, and the cause remanded for further proceedings.

BLAKE, C.J., MILLARD, ROBINSON, and SIMPSON, JJ., concur.

ON REHEARING. [En Banc. February 3, 1941.]