The bill is filed to recover from the defendant Evans, the executor of John Kelly, legacies claimed by the plaintiffs under his will. Mr. Kelly, by will, devised to his wife, in the first clause of it, a large portion of property, both real and personal, among which are "the negroes, Caroline and Henry, children of Henry and Mary." He then goes on to say: "I also give and bequeath to my dear wife, absolutely, fifty shares of the capital stock of the Bank of Cape Fear." In the (270) same clause of he gives to his wife for life two other negroes, Bill (shoemaker) and Tibby, and "also the dividends upon twenty-five shares of the capital stock of the Bank of Cape Fear," and after her death Bill and Tibby are given to Benjamin Rush.
By the 3d clause, "twenty shares of the capital stock of the Bank of Cape Fear" are given to John K. McGuire, and by the 5th, "ten shares of the capital stock of the Bank of Cape Fear" are given to Patrick Murphy. The 6th clause gives to Frances Casey a negro slave "Etty, child of Henry and Mary," and twelve and a half shares of "the capital stock of the Bank of Cape Fear."
The 7th clause gives, in the same words as in the preceding section, "twelve and a half shares in the capital stock of the same bank to Andrew B. Casey." The 8th clause gives to John Kelly McGuire twelve shares of the same stock, and the 28th gives thirteen shares of the capital stock of the same bank to Margaret Casey. The 14th clause is in the following words: "In case there shall be any deficiency in the bank stock which I hold at my death, as compared with the amount bequeathed in my will and testament, then in that case the amount limited and given to my wife is not to abate, but the deficiency must fall on the other bank stock given to the other legatees exclusively."
To this will the testator has annexed several codicils. In the first he directs as follows: "And in the event my bank stock should not be absorbed *Page 191 in the payment of debts which may come against my estate, then and in thatcase I give and bequeath to my executors and survivors of them ten shares of the capital stock of the Bank of Cape Fear" in trust for Catherine and Mary Fitzharris. This legacy is claimed by these legatees to be made up to them out of the general residue of the estate — the particular fund having failed.
The bill, after setting forth the above legacies, in substance, (271) states that the testator, at the time of his death, had but one hundred and seventeen shares of stock in the Bank of Cape Fear, and that the number devised by him, exclusive of ten shares to Catherine and Mary Fitzharris, was one hundred and thirty-two; that the executor had transferred to Mrs. Kelly the fifty shares given to her, and had still in his possession sixty-seven. It further states that there are no debts or liabilities of the testator of the nature of those stated in the 14th clause, and alleges that the legacies to the Fitzharrises were made dependent on the existence of the fact that his bank stock was exhausted by such claims. The bill charges that the girl Caroline, given in the first clause of the will to the testator's wife, Ann Kelly, is the same girl who in the sixth clause is given by the name of Etty to the plaintiff John K. McGuire, in trust for the plaintiff Frances, and that, therefore, the said Ann and Frances held her as tenants in common. And the plaintiffs insist that the legacies of the Bank of Cape Fear stock are general, and as there are not shares sufficient belonging to the estate to satisfy all the said legacies, that they are entitled to have the sixty-seven shares applied pro rata to their respective legacies, and that the residue of the estate will be resorted to to supply the deficiencies, as far as it will go; and that they have now the right to demand an account and settlement. The widow, Mrs. Kelly, is dead. The prayer of the bill is for an account and payment of the legacies.
The answers admit the facts set forth in the bill. The defendant Jonathan Evans, executor of John Kelly, craves the instruction of the court, and claims that the legacies to the plaintiffs of Cape Fear Bank stock are specific and not general; and that the said legatees have no right to resort, on failure of the said stock to meet the said legacies, to the residue of the estate; and that the legacies to the Fitzharrises must fail altogether. The answer of John Rose and his wife, Margaret, claims their legacy as a general one and that any deficiency of stock on hand must be made up out of the residue. Jonathan Evans is the executor of John Kelly and the administrator of Mrs. Kelly, who is dead. (272) The first question that presents itself is as to the nature of the bequests of the bank stock: Are they general or specific? Mr. Roper defines a general legacy to be a testamentary gift of personal estate generally; and a specific legacy to be a bequest ofparticular things, distinguished from all others of the same kind. In the will of Mr. Kelly, in every instance in which he gives the Cape Fear Bank stock, he uses the general words, so many shares of the capital stock of the Bank of Cape Fear. If the answer to this question depended alone upon the words used in making the bequest, we should, without hesitation, pronounce the legacies general. Nor would the fact that the testator, at the time he made his will, had stock in that bank to the amount bequeathed, vary the construction. 1 Roper on Leg., 157. In order to have that effect it must appear upon the face of the will that the testator meant the identical stock owned by him. The intention to make it specific must be clear; for courts of equity incline to consider legacies general rather than specific. Thus the word "my," preceding the word "stock," will sufficiently show the intention. Barton v. Cooke, 5 Ves., 461, 4 Ves., 750; Davis v. Cain, 36 N.C. 304. To render such a bequest specific, it is essential that the testator, in the will, in connection with the bequest, should refer to the stock he then has, or express the intention that it should come out of that stock. If such intention does clearly appear from the will itself, his intention will make the bequest specific. 1 Rop., 164; Sleech v. Thorington, 1 Ves., Sr., (273) 561. If the will of Mr. Kelly be tested by the above rule, it will, we think, very clearly appear that the bequests of the stock are specific. In the 14th clause the language is clear as to the stock he had in his mind when he devised it. His words are: "In case there shall be any deficiency in the bank stock which I hold at my death, as comparedwith the amount bequeathed in my will and testament," etc. There can be no doubt what stock the testator meant. He meant, evidently, the stock he then had; and if so, they are specific legacies, not general.
The second question submitted is as to the legacy to the two Fitzharrises. We are of opinion that the bequest fails because of the failure of the fund out of which it was to come. This bequest is specific in its nature, and it is of the nature of specific legacies that when the specific fund fails the legatee will not be entitled to any satisfaction out of the personal funds of the testator. 1 Rop., 150.
The third question is as to the negro Caroline. In the first clause she is given to Mrs. Kelly under the name of Caroline, and in the sixth she is given to Frances Casey under the name of Etty. When the same property is by the same will given to two different legatees, they take by moieties. So that one-half of the value of Caroline belongs to the estate of Mrs. Kelly, and the other half to Frances Casey. Field v. *Page 193 Eaton, 16 N.C. 283. Another question was made at the bar as to the maintenance of the aged negro Tibby. We do not decide that question, as it is one which arises exclusively between two of the defendants, and with which the plaintiffs have no concern.
PER CURIAM. Declared accordingly.
Cited: Heath v. McLauchlin, 115 N.C. 402; Pigford v. Grady, 152 N.C. 181.
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