The learned referee held that by the first clause of the will the testator intended to give to his wife the sum of $30,000, being the amount of a bond and mortgage therein referred to, and then owned by him, in addition to the other legacies mentioned in the same 'clause of the’ will; that such bequest was not a gift of the debt or obligation secured by the mortgage, but of a specific sum of money equal in amount to the debt to be realized out of the bond and mortgage, which was designated as the source from which the funds were to be realized for its payment. If such, was the intention of the testator, then the payment of the bond and mortgage in his life-time was not an ademption or revocation of the legacy, and the legatee may demand its payment from the executor out of the general assets belonging to his estate. The residuary legatees dispute the correctness of the construction given to the will by the referee, and claim that it defeats the purpose of the testator, which was, as they contend, to give- and bequeath to his wife the bond and mortgage as a separate and distinct item of his personal estate as it existed at the time of the making of his will,, and nothing more. If this construction expresses the intention of the testator, the legacy was specific, and the payment and satisfaction of the debt in his life-time was an ademption of the legacy. A specific legacy is a bequest of a particular thing or money specified and distinguished from all other property of the same kind, the title of which would vest in the legatee on the death of the testator, with the assent of the executors. It differs from a general or pecuniary legacy in this respect: That if the thing, security, or money bequeathed is lost, paid, or destroyed in the life-time of the testator, the legatee will not be entitled to any recompense or satisfaction out of his personal estate; whereas a general -legacy is to be paid out of the assets of the testator when converted into money, if the same is sufficient for that purpose, and in. the order prescribed in the will. 1 Rop. Leg. c. 3, § 1, p. 192.
In brief the question presented is, was this a general or specific legacy, within the sense and meaning of those terms as used by courts and commentators in discussing the subject? In all cases the intention of the testator is. to prevail, and his purpose is to be derived from a consideration of all the material provisions of the will to be construed, and of the extrinsic circumstances respecting the situation of the testator’s family and estate at the time of the making of the will, which maybe fairly brought to bear upon the question of intent. Pierrepont v. Edwards, 25 N. Y. 128; Davis v. Crandall, 101 N. Y. 311, 4 N. E. Rep. 721. The general rules of construction applicable to this-class of cases are substantially the same as those which prevail in all other cases where the intention of the testator is left in doubt in consequence of the language used by him in expressing his purpose. Inasmuch, however, as the legacy, if specific, is lost in ease the subject of it is disposed of by the testator, or is extinguished by payment or otherwise in his life-time, it was said by Selden, J., in Giddings v. Seward, 16 N. Y. 365, that “courts, proceeding upon the presumption that the testator intended a real benefit to the legatee, incline to consider legacies as general, rather than specific, where the-language of the bequest will admit of that construction. ” These observations were repeated by the court in Tifft v. Porter, 8 N. Y. 521, with some additional remarks made by Johnson, J., viz.: “ That the presumption is stronger that a testator intends some benefit to a legatee than that he intends a benefit, only upon the collateral condition that he shall remain till death owner of the-property bequeathed. * * * An intention of benefit being once expressed, to make its taking effect turn upon the contingency of the condition of the testator’s property being unchanged, instead of upon the continuance of the-*167same feelings which in the first instance prompted the selection of the legatee, requires, as it ought, clear language to convey that intention. The rule, as settled, accords best with the dictates of experience as to the probable purposes which actuate men in disposing of their property by will. ” In all cases bearing on the question whether the legacy is specific or general the rule is stated with uniformity that to make a legacy specific it is necessary that it should appear that it was the clear purpose of the testator to make it such; otherwise the legacy will be held to be pecuniary or demonstrative.
In seeking the intention of the testator in this case, we have not failed to keep in mind the canons of construction which we have before stated. The referee, in his opinion, which is printed with the papers, held in substance, and his decision rests upon the ground, that the bequest of the bond and mortgage belongs to that class of legacies commonly called “demonstrative. ” Such legacies partake so far of the nature of specific legacies that the security referred to in the bequest, if in existence and belonging to the estate of the testator at the time of his death, is set apart as the primary fund for the payment of the legacy; and, if the same has been paid up or otherwise extinguished, the legacy is to be paid out of the assets of the testator’s estate as a general legacy. To our minds it seems clear and certain that the meaning and effect of the language in the'first clause of the will was to give and bequeath the bond and mortgage specifically to the legatee, and if the testator had remained the owner of the same up to the time of his death, the legatee could, as a matter of right, have demanded from the executor the transfer of the security to herself, whatever may have been its value at that time. We are unable to find in the remaining provisions of the first clause of the will any provision or direction that fairly indicates an intention on the part of the testator to change or alter the effect or meaning of the words used in making the bequest of the bond and mortgage. They are in the nature of instructions by the testator to his executor directing him and empowering him to pay the legatee $250 monthly, if for any reason there should be any delay on his part in paying over to her the pecuniary legacy in the form and manner as provided in the preceding clause of the will. The words used, “in the event there should be, for any reason, any delay in paying to her the amount thereby bequeathed,” evidently refer to the pecuniary bequest of $50,000, for he had given and bequeathed to her that sum, “to be paid to her by his [my] executors immediately after his [my] decease. ” The use of the pi ural of the word “ legacy, ” as it appears in the clause relative to the making of the payment of $250 monthly, was evidently used by mistake, and, if not, then the monthly payment would continue until the gift of the household furniture and pictures was actually transferred to the legatee, which could not have been the intention of the testator. The testator designed that his widow should realize the interest and income of the bequest of $50,000 immediately after his death, and if for any cause the principal should not be paid over as directed, then and in that event the executors were authorized to pay her the sum mentioned monthly, which is equal to the legal rate of interest on the sum bequeathed. We think it proper to direct a new trial, instead of modifying the judgment so as to conform to our views as to the proper construction to be placed upon the will, so that the widow may have an opportunity on the retrial to maintain, if she can, by proper proof, the facts alleged in her answer, that when the bond and mortgage was paid up the proceeds were transferred to her by the testator to be held in her own right and as a part of her individual estate. The referee refused to pass upon this question, as by his construction of the will it became immaterial to determine that issue. We think it also proper to defer a decision upon the other questions until that issue is disposed of. New trial granted before another referee, with costs, to abide the final award of costs. All concur.