The testator, by his last will and testament, bearing date the 9th day of March, 1839, after devising to his wife the use, income, and profits of certain land therein mentioned, so long as she should remain his widow, and certain articles of personal property, household furniture, &c. absolutely, directed as follows: “ And my said wife, having now in her possession the sum of eight hundred and fifty dollars in money, I direct and request my said executor, to pay her the sum of one hundred and fifty dollars more, so as to make her the sum of one thousand dollars; my meaning and intention is to give her the sum of one thousand dollars. The foregoing provision is given and made to my beloved wife in *366lieu of dower out of my estate; and I give to my said wife all family provisions now in the house.” The testator departed this life on the 26th of April, 1842, without altering his will, leaving a very considerable real and personal estate, amply sufficient for the payment of all debts and legacies.
The material question in the case is, whether the foregoing is a general, absolute legacy of $1000 to the widow, to be paid by the executor, or only a specific legacy of $850, and a general legacy of $150. In the proceedings in the court below, the respondent treated it as a general pecuniary legacy for $1000; the appellant admitted his liability to pay $150, but alleged that the respondent had, in her possession, as is stated in the will, “the sum of eight hundred and fifty dollars,” and he pleaded a tender as to the said $150 and interest. The surrogate decreed that the respondent was entitled to $1000 and interest from the death of the testator, and the surrogate’s fees. The appellant treated the recital in the will, that the respondent “ had in her possession eight hundred and fifty dollars in money,” as conclusive evidence of that fact; and that she was still so in possession when the will took effect, at the death of the testator. And he objected to all parol evidence tending to show the contrary ; or tending to show that it was embraced in the promissory notes which she in truth had in her possession at that time, and which he required her to surrender to him after the testator’s death. If the $850, mentioned in the will as being in the respondent’s possession, is a specific legacy, the appellant was right in refusing to pay her more than the $150 with interest. Assuming the $850 to be a specific bequest, if it was in the hands of the respondent at the death of the testator, she was entitled to hold it; or if it had been withdrawn by the testator before his death, or been otherwise consumed, the specific legacy would fail by reason of such ademption, or other-destruction of its subject; and the legatee would not be entitled to any recompense or satisfaction out of the general personal estate. (Ashton v. Ashton, 3 P. Wms. 385, per Lord Talbot, C.)
A legacy of quantity, however, is ordinarily a general légacy; *367but there are legacies of quantity, in. the nature of specific legacies ; as of so much money, with reference to a particular fund for payment. This kind of legacy is called by the civilians a demonstrative legacy; and it is so far general, and it differs so much in effect from one properly specific, that if the fund be called in, or fail, the legatee will not be deprived of his legacy, but be permitted to receive it out of the general assets. (Touchstone 433. 2 Wms. Ex’rs. 740. Ellis v. Walker, Amb. 310. 4 Ves. 555. 15 Id. 384. Mann v. Copland, 2 Mad. Ch. Rep. 223. Fowler v. Willoughby, 2 Sim. & Stu. 354. 1 Cond. Ch. Rep. 493, & C. Willox v. Rhodes, 2 Russ. 452. 3 Cond. Ch. Rep. 195, & C. Walton v. Walton, 7 John. Ch. Rep. 282.) The courts, in general, a re averse from construing legacies to be specific; and the intention of the testator that they should be so, must be clear. (Ellis v. Walker, supra.)
The legacy in this case was a general pecuniary legacy of $1000. So much of it as was referred to as being in the hands of the respondent, viz. the $850, was a demonstrative legacy. As to that portion of the $1000, the testator pointed to a fund out of which it was to be paid. If the fund fails, from any cause, the legacy is to be made good out of the general assets. It is merely designated as the convenient means by which it may be discharged. Such is the clear intention of the testator, from the will itself—“ my meaning and intention is,” says the will, “ to give her the sum of one thousand dollars.” When we take into consideration that the bequests are to support a wife, and to be in lieu of dower, we derive additional confirmation, if need be, of this intention. The recital in the will, that the testator’s wife, the respondent, had at the date of the will, in her possession, $850 in money, affords no conclusive evidence that she had the same money in her possession at the testator’s death, two years afterwards; or that it continued in the same form. The onus lay with the executor to show that she had it at the latter time. To carry into effect the intention of the testator, he must see that the respondent is paid $1000. Unless he can show that she had in her possession, at the testa*368tor’s death, a part of the legacy in money, he must pay her the whole.
The general doctrine that it is the duty of the court to carry into effect the intention of the parties to a written instrument, so far as such intent can be collected from, the whole instrument, and is consistent with the rules of law; and that parol evidence cannot be admitted to supply or contradict, enlarge or vary, the words of a will, nor to explain the intention of the testator, except where there is a latent ambiguity, or to rebut a resulting trust, is not disputed. (1 John. Ch. Rep. 234. 1 R. S. 748, § 2.) The appellant was not prejudiced by any testimony admitted by the surrogate. The object of the testimony received was not to alter or vary the will. There were some collateral matters introduced into the petition before the surrogate, but they had no influence in the final determination of the cause. The decree of the surrogate is right as to the amount, and as to the question of interest. It should have made both the legacy and costs payable out of the estate of the testator, and not been against the appellant personally. With this modification, the decree of the surrogate is affirmed, with costs to be paid by the appellant out of the estate of the testator.