residences, 'stores, ,and 's.caftered iIf dit: fetent: parts 'of the citymight i insist upon supply to'allat the lowest rate; or, as neither ownership nor contiguity is spoken of, why might he not cnotract for all the water from defendant, and subcontract it to vain there .can be little doubt on thIS..,.T,he practIce whlChh'as obtamed ever SlUee defendant's water'works were established correctly interprets the ordinance t and expresses its true spirit and meaning; and .that gives defendant the right to building a separate consumer, and charge either for the bmldmg or at meter rates accordingly. This being the true interpretation or the contract, it follows that complainant's case must fail, and a decree'must go dismissing the

a.

GEORGIA INFIRMARY FOR TIlE REi,IEF AND PROTECTION OF AGED AND :,; , ,AFFLICT1l:D ;NEGMES 1:. JONES et al. CITY CoUNCIL 'OF AUGUSTA'lI. SAME.

(Cirouit Oourt, S. D. New York. February 22, 1889.)
., Testator.'after disposing of all the residue of hill estate except certain cotton against the United States government. bequeathed a specified sum out of the proceeds of ,said claims to complainants. or so much should remain'after paying cert!,in legacieS to others. At that time his claims were pending before the court of claims, but before his death he col· lected them, and invested the proceeds insecurities, realizing a sl1m sufficient to 'have satisfied the bequest to complainants. Held, that the legacies were 8,pecifip. and were payable only in case executors collected the funds from source inqica:ted, and, that ttlstator by coJlectini' t,hem caused an ademption of'the legaCIes. ' , ;
LEGACy-ADEMPTION.

In Bills for legacies. ' Bills respectively by tht> Georgia Infirmary fOl'the Relief and Prote-e:. tion of Agl:ldand Afflicted Negroes and the city council of against Jones· and a-n()ther,administratorsc. t. a. of Gazaway B. Lamar, for the payment of certain legacies given to complainant. John W. Weed; forcomplllinallts. Oharles O. 'Beaman, for defendants. WALLAGE; J. These aCtiOllS involve the rights of the complainants, to legacies of $50,000, bequeathed to then1 for charitable objects by the willof Gazaway B.-Lamar, deceased. The will was executed September 28, 1872, Rhdatthat time the testator owned 'real and personal property in possession,antl 'had besides certain claims fora large am(nihtagainst the goverritrient'ofthe United Statesfor cotton which had -been seized and sold by its ,officers during the war of the Rebellion, whicl> were then' 'being'prosecuted for collection. The will, by the first

directs. that. all the· debts, 'of the testator ,'\:fe paid by the, executors. By the second clause the exeoutol'$, are directed to divide into four equal parts "all the rest of my property of whiqh I may die seised hereafter acquire,):excepting only my cotor possessed, (or which I ton claims upon the government of the United States." The will then · provides, by clauses 3, 4,5, and 0, for the distribution of the four parts by of the property of the second clause. one to each of the four children of the testator, according to specified trusts and conditions. The cla.use directs the executors "to press my claims upon the government of the United States for payment for cotton, which are now before the court of claims, or before the committee on claims of the. con, gress of th!3 United States," and enumerates the particulars of the several ,claims. By clauses 8 and \) the will makes provision for the payment ,.to certain. persons of specified sums to which they are legally orequitably from the proceeds .of the cotton claims. The tenth clause directs "the executors to divide the" amount collected" from the said cotton claims parts, if it be $200,000, and distribute it the into ,four IJhildren of the testator pursuant to the provisions of clauses 3, ,.0, and o.The eleventh clause bequeaths to th.e present complainants, \ of the residue of my cotton claims wijen collected, $100,000, (,ifsomlmQ' may remajn" and, if not, whatever balance may remain, to .pediyided equally," for the charitable objects particularly specifil'ld.. Clauses 12, 13, and 14 bequea,th certain other legacies out of therElsidue , of. the, ptoceeds..of the cotton claims. The fifteenth clause dev,ises and : bequeaths all. t4e rest and Jesidue .of the testator's, property, "real, personal,andmixed," to thefau!. children of the testator. died , in Octo.ber, 1874:. The will was probated in New York city, , i place of do:micile. After making the will, the testator collected from, t.b.e · govemmentof the United Stlltes 8342,819 on account ,of his cotton.cl,aiInl3, ,a,ndipv:ested the proceedsin\7ario:us securities. The cottonclll-iIllI3 not i(Jollectedduring his life-tiIIleare of inconsiderable value, and. eElxecutors have been unsuccessful in their efforts to collect them. . . Applying thefalIliliar rule that a will spea}rs as of the time of the delt:th !of the testator, and not as oLthe time of its date, the second cla\lse of ,thepresentipstrumerit coald,be interpreted to mean,that all i whichljDightbelong to the tes,tator at the time of his death, excepting .only S1;1()h cotton,claims.ashe:should then have, is to be divided by the · . executors intofour parts, to be, distributed for the benefit of his chUdren. < ,. in the absence ofany other language or provision in the i will to liplit or control the meaning of the .<;llause, according to this canon "of interpretation, the proviSIOn would require the executors to include in the property to be distributed to ,the testator's children all $e property ;, and assets belonging to hipl at tbetime of his death, excepting such ,-only as Illight exist in the form of and uncollected demands ,-llgainst the government oLthe PAited States. This view w01;1!d: bEl fatal the claims of the compll1inantsi but it does notseemto reason, one. It ,seems very plain that when by that clause the testator dii 'l'ecte4' to divide: for the. benefit of his .children all ,the prop-

762

I'EDERAL REPORTER,

vol. 37.

erty ofwhich he might die possessed, excepting only his cotton claims against the government of the United States, he intended to exclude from the property thus to be divided the outstanding demands. which he particularly enumerated in clause 7, of the will. When he used the words, "mv cotton claims," he referred to the uncollected debts, from which he thought enough might be realized to create a further fund of $200,000 for his children, and $100,000 for the complainants. These particular claims which he enumerated and described, and which he directed his executors to press and collect, were the prop'erty which he had in mind, and which he intended to except from the operation of the second clause. In this sense, the will speaks as of the time of its execution, and the seventh clause is to be read as a gift of the cotton claims belonging to the testator at that date for the benefit of the children and the complainants together. According to this interpretation, howe"'erj the legacies to the complainants are specific legacies, and the case falls within the rule that, where the subject of the bequest has ceased to exist before the testator's death, the legacy is adeemed. A specific legacy is one which is to be paid only out of a particular source or fund designated byihe will. The extinction of the subject of a specific regacy, or such a change in its state as makes it another thing, annuls the bequest, for reasons paramount to considerations of intention. An example of the class, and an illustration of the rule, is found in the recent case of Davis v. Orandall, 101 N. Y. 311,4 N. E.Rep. 721. The will in that case bequeathed to the legatee "the sum of $243.92, a portion of the debt due me from James Davis, secured by his note." The court held that this was a specific legacy. and said: "If that note had been paid during the life-time of the testatrix, or otherwise canceled or destroyed, so that no obligation at her death rested upon James Davis to pay it, the legatee would have taken nothing." This authority is in harmonl with to the effect that if the bequest be of the sum owmgupon a security or obligation, or of a sum to be paid out of a designated and distinct part of the testator's property, the legacy is specific. Sidebotham v.. Watson, 11 Hare, 170; Chaworth v. Beech. 4 Ves 555, Ford v. Fleming, 1 Eq. Cas. Abr. 302; Fryer v. Morris, 9 Ves. 360; Towle v. Swasey, 106 Mass. 100. In G-ilbreath v. Winter, 10 Ohio, 64,the bequest was: "All the amount of moneys and interest that may be recovered of and from K. for the sums due me 011 the purchase of the [described] estate, to her and to her assigns." The· bequest was held to be a specific one, and the receipt of the money by the testator to be an ademption oiit. Because of the hardship of the doctrinethat a specific legacy is lost if the subject of it is disposed ofb)" the testator, or is extinguished in his life-time,notwithstandillg the will may denote unmistakably that the testator intended to treat the legateeaEl an object of his bounty, the courts incline to consider legacies as demonstrative, rather than specifio, where the language of the will is reasonablyeapable of that construction. Acoordingly, if the bequest, instead of bfling for a specified sum "due upon" a security or obligation, lsfor the sum "outofthe proceeds," or "contained in" a or obligation, it will be treated as a demonstrative legacy, to which the rule
i

GEORGIA INFIRMARY: FOR AGED AND AFFLIcrED NEGROES fl. JONES.

753

of ademption does not apply. And whenever it can be inferred from the language of the will that the testator's intention was to give the legatee a specified sum, not necessarily out of a particular fund, although incidentally and primarily so, but irrespective of it, the gift will be construed as a demonstrative, instead of a specific, legacy. Le Gricev. Finch, 3 Mer. 50; Giddings v. Seward, 16 N. Y. 365; Newton v. Stanley, 28 N. Y. 61; Clark v. Broome, 2 Smale & G. 524. A case in which the distinction between a specific and a general legacy in the same will is taken upon these principles, is Gillaume v. Adderley, 15 Ves. 384. In determining Whether the legacy is specific or demonstrative the question always is whether it is a gift out of a specified fund or security, or a gift of a specified sum, with a specified fund as security. If it falls within the former class, the legacy tails when the fund or security ceases to exist in the testator's life-time. The law is well stated in Walls v. Stewart, 16 Pa. St. 281: "Theclistinction seems to be this: If a legacy be given with reference to a pai-iicular fund only, as pointing out a convenient mode of payment, it is considered dempnstrative, and the legatee will not be disappointed, though the fund totally fails. But when the gift is of a fund itself, in whole or in:part. or is so charged upon the object made subject to it as to show an intent to burden that object alone with its payment, it is specific."

Upon the authorities, it is entirely clear that the legacies to the complainants do not fall within of demonstrative legacies. They are legacies of $50,000, payable exclusively out of the amount to be collected from the cotton claims by the executors; they are a gift out of a specified fund, and not otherwise. The will, in effect, gives the cotton claims' to the executors, in trust to collect them, appropriate the proceeds. a distinct fund, and apply $200,000 of the fund pursUftnt to the directions of clauses 3,4,5, and 6, and the residue, if any, to the complainants and other legatees. The bequest cannot take effect except as to thlilclaims which were not collected before the testator's death, because there was su<!'h a change in the subject-matter as to annul the gift to the executors in trust. As to the collected claims, there was nothing in existence in respect to which the trusts imposed by the will upon the executors could attach. The case is directly met by the observations of Lord THURLOW in Humphreys v. Humphreys, 2 Cox, 185, that"The only rule to be adhered to is to see whether the subject of the specific bequest remained in specie at the time of the testator's death; for, if it did not, then there must be an end to the bequest; and the idea of discussing what were the particular motives and intention of the testator in each case in destroying the SUbject of the bequest would be productive of endless uncertainty and confusion." So far as the authorities which are cited for the complainants declare that bequests ·by which the collections or proceeds, or the amount to be received from a particular claim or fund, are given to legatees, are not defeated when the proceeds are received by the testator in his life-time, and have been kept by him so .as to be distinguishable from the rest of his estate,. they are to as undoubtedly correct. They proceed v.37F.no.14-48

I'EDERAL
UPbR tlie:distinction

vol.S7..

betilveen the:gift of a debt qua debt, and 'the gift of a sum of. money to arise when' the. debt shall have been reoovered and ceased to exist as a debt. In a gift of the latter class it may be inferred that the testator contemplated the recovery of the debt in his own lifetime, and intended to give, not the debt itself, but the amount to be receiv'edin J.'espect of it. When the, bequests are of this the fund received by the testator in his life-time may be followed through its transmutations, and reached, if capable of identification. The case of Doughty v. Stillwell, 1 Bradf. (Sur.) 300, is a departure from the doctrine of these authorities, and, so far as it sanctions the proposition that tbe ademption of a specific legacy caused by tbe act of the testator in extinguisbingtbe subject may be' nullified by extrinsic evidence .of bis motive or intentions, it is not approved. The bequests bere are for tbe sums given to tbe complainants, respectively, in case the executors should realize the amount by collecting the cotton claims, and, not otherwise. The testator, by collecting; the claims, himse!f,put it out of the power oOheexecutors to comply.with the provisionsofthe will,and to that. 'eXtent his acts were equivalent to a revocation of the bequests. The bill is dismissed. ' :"
. · :. ; "I

WHI'l'E tt

ale

V.RUKES.:

(CirCUit Oourt, JJ. Indiana.

February 28, 1889.)

. ', .

,', :

' . Testator l1ad many children, and devfsed re.al estate to several o.f them and heirs. the will OM devise of land was to "the , binrs of H.. {testator's sonl 'by lils paYing $600 ol'ltof -thll'l'ents andprotits yearly arising ,out,of the place." H. was named as one executors·. At testator's d.eath H. had one child, bQrn out of wedlock, 9ut which he and hfs wi'fe 'treated as their chUd,and another child in ventre lIa mere. and born a few weeks later. Three other children were born toR. 'afterwards.' Before executed, H. took possession of the land, and occupied it with testll-to,r'l!consent, and. continued to occupy. it for,22 years after testator's death, when he sold it. Held, that the devise should be construed as if it rtlad "to H. and ,his heirs...
j' '

DESCRIPTION' OpDlilVISEE.

" Actiollby Winfield S. White and Sarelda White against Harrison J. Rukes to recover land. Trial by the court. James A. Shackelford andWilliatn H. Dye, for complainants. HarriiJ &: for defendant.
GRESHAM,

James, Alexander, Amelia, Rebecca,Esther, and ,William. The entire estate was disposed of byth,e will, which was written by an unskilled, if not an illiterate,person; direoting the payment of, his debts and funeral expenses, and making money bequests to Polly,Malinda,

ai widow, and sons and daughters; namely,. Henry,Polly, Malinda,

J.

John A.White.died testate November 1, 1858, leaving