Smiths Appeal

Supreme Court of Pennsylvania1883-10-01No. No. 119

103 Pa. 559

Summary · law.co

Holding. The legacies to Samuel Smith and William Smith were specific legacies that were adeemed by the testator's inability to collect the bank deposit. The decree was reversed and the record remitted, directing distribution of the fund according to intestate succession laws.

The court addressed whether bequests to the testator's sons Samuel and William constituted specific or demonstrative legacies. The testator deposited money in a bank and willed certain portions to each son, conditioning payment on collection from the bank's assets or stockholders. The court examined the nature of the bequest, noting that the testator was uncertain of the exact amount on deposit and gave different sums to each son with the remainder divided equally between them. The language of the will, particularly the phrase "providing the said amount and interest is collected," indicated the testator's intention to limit payment strictly to the bank deposit itself rather than to draw from the general estate if collection failed.

Under established principles, specific legacies differ from demonstrative legacies in that they identify particular property rather than a sum of money generally. The court concluded that because the entire fund was identified and each son received a designated portion of that specific fund, and because the testator conditioned payment upon collection from the bank deposit, the legacies were specific rather than demonstrative. Since the fund could not be realized, the specific legacies were adeemed and therefore failed.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether a bequest of designated sums from a specified bank deposit constitutes a specific or demonstrative legacy
Effect of conditional language conditioning payment on collection from the named fund
Whether a specific legacy is adeemed when the identified fund cannot be collected

Procedural posture

An appeal concerning the proper classification and enforcement of legacies from a will involving a bank deposit.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

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.