'118
REPORTER,
vol 48.
:ratione, providing, for winding up ·insolvent corpQl"ll.tiol1$, it being' nowhere; ll.Y:erred, in either count of, this declaration, thllt thisJohn B. J effray Printing Company was solvent, and able to pay its debts. In the third' cpnnt there is no allegationb.nt, what these judgments were isa legitimate sned in due course of buainess, for the purpose of indebtedness of the said corporation, and hence 1 fail to see how the facts alleged can amount to a fraudulent conspiracy to wreck thecorporation. : The ,transactions complained of seem to have occurred in the early part of the year 1884,more than years berote tne bringmg of this suit,rand presumably the plaintiff :bas put the averment in regard to fraudltlentconcealment,of the plaintiff's cause of action into, each of these of taking the case out of the operation of the stat.ute of Umitations. I do not think this averment of fraudulent conceal· ment is ,sufficient., It is made in the precise language of the statute.bllt it seems to ,roe that the plaintiff should have stated in what the fraudulent concealmmtconsisted, so that the defendant would beto JIleet and l!luch aJIegatipns by plea and proof. Probably it,wl!,8 not necessary for the plaintiffs in their declaration to have atteIrJpted 'evade the effect of the statute of limitationl'l, but they ,might, have lert' 1hat to the qefenc4nt to 'ele,ct or not the defendant would inl!list upon the ,bar of the but, if the plaintiff attempt& to take., out of operation of this statute, he shou'd setup, facts. whicl;l, if proven" wquld effectually accomplish that purpose; in other worc..!4, ,he state inwha,t the fraudulent c<?11cealment con· these reaSOo!! the demurrer to each count .01 the &UUended sisted. dec1araUun ,iii .' '
I VJ;:S v. '.' ,. (CCrtmft '1" ',-. '.
CANBY. Deceinber 19, 189L)
cotwe; D. Delaware.
A \lequ",t of "12,000 01 .the South W Loan of Pennaylvan\..,- by .. person owblllg $10,000 Worth of boods knowo by that designation, isa delDonstra. tlve; and :not.Bpeoifio,legllCy,and la not adeemed by thepayment.of the bondabe, foJ'e tile, ,; " , ' .
i.NDDEKONaTRATITB LBG<40JlIS.
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,Actionby,'A,lffoo S. Ivee Hradlol,"iJ" to recover ",legl1cy. Gedrge H. Batu, for plaitltifi.·· .
J, uugrllient tor plaintiff. ., ,
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,aD,d: both · " ,', ". · 'J
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ainicable _lOtion t'or of the CO}lf,t on,&, statenlent of facts .to, her andallP9lDted the pefenuant her ex'ec,utor..
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719 Mls.:l;lrlldforddiedonthe5thofSeptember,1888 1 and on the 1st day ofOctoberintbe same year ber will was dnly probated, and letters test· amentary thereOn issued to the defendant. The'third clause of her will is in' these words: · "Item. I gIve, devise, and bequeath to AlfredStilIe !ves, the second child of Dr. Robert !ves and Maria, his' wife, of New Haven,Conn., his beirs and assigns, forever, two thousand dollars of .the South Ward Loan of Che!fter, ;Pennsylvania." . At the til'rie of making her will the te!!tatrix owned and possessed securities known as the" Soutb Ward Loan of Chester, Pennsy)vaDUl.," oftna value of$10,OOO,represented by bondsD-umbered and dated as fOI'$4,500, dated Jttly2, 1870, payable in 010 follows: 'Bond years'from that date;' bond No.'80, for $4,500, dated·July 1, 1870,pay. able' in 'ISyears froIn that date; .and bond No. 83, for $1,000, datellJwt, I, 1871, payable in to years after that date. All of these bonds were paid off prior to thedeatli oftlhe testatrix. After the payment of all the detitB due fronFbel' estate, and, all'of the othedegacies,there were suftioient assets iq ili'6 handll'ofthedefendant, asexecu'tor; '(or'the payment df'itht} it'c'. 'to'ihe lain'tiff·. ' .. : . " , I, · . I' .·.. , ... facts is whether: tpe legacy of to theplai:ntif:l' isa ,specific legacy, .andwas therefore by the payment.ofthebonds during the Hfe-time ofthetestatrix. The qUeRtion is not a'-hew' one: . The definition of a "speoific legacy" has long been settled, and the presEmt corltroversy canbedeterrnined by 'el1tleW the authorities, witho\!ltfurther discussion. A specific legacy is attehdedwith s6me advantagE's and with some disadvantages. If, at the 'time oCthe death of the testator, the subject' oithe legacy is Jound among the assets of the testator, it lnuetbe paid to thel-egatee by the executor in' preference to thegeneraUegacies,and is not liable to contribution· For 'the 'Payment of debts due fiom the estate, if there should not be a ciencyofassE'ts for that purpose, and for the payment of dtberlegaoies is payable at once, and; ,:where:jt, is in full; ,and, a' inoneylegaoy, with interest rfrom the death of the testator. . hand, if the prO'pei:'ty so specificallY' bequeatbed is not p08''session of the testator at the time of his death, by reason of its payment,sale, or it is adeemed, and the gift fails., ,The courts, hav-e inclined against construing legacies as specific, in order to guard the legatee against the risk of ademption; and that the legacy may be liable tocontribution.arid abatement, if the assetl3 are insufficient to pay the ·debtsaud also,to satisfy the general pecuniary legacies.. H is therefore important to ascertain the intention of the testator, and such ·intention must always be either expressed in reference to the thing bequeathed; orothe'rwise clearly appear fr.om the will, to constitute a :specifiC'legacy. 'fhil{ is Bradford's will contains no word pilrag&,. other thanw-hat is· found in the third olause, that .shows· her 'intentiouinreference to the payment ·of this legacy; In thosedaaeB in of money due onabond; have been held to be specific, some expression has been found froJ,U' which ail intention i
FEDERAL REPORTER, vol.
48.
t() th,epartlCU1f'r shares or. 4ebtcould be inferred. It seernllW,pe :al): l'lw.inent authority, that mere possession by thetestJttor,atthe date of hjs:will, of stock or annuities, of equal or larger amount than the bequest, will not (without words of reference, or appearing upon the will that ,he mea,nt the.identical stock of' an which was possessed) make such bequest specific. Rop. Leg. c. 5, §5. InDaviB v. Cain, 1 Ire8. Eq. 309, the bequest was of 25 shares of capital stock of the State Bank of North Carolina. The testator owned llhares. The court :said,tbeJegacy was not specific. If the testl:1.to,ll ,J:Nt,d. said "my" 25 Sba1;eB,:it would have been specific·. In RobinBWt,v.,,.,tddti,sQn, 2 having 1JHLeeds & Liverpool bequeathed, to A ··· 5 shares to B., ,and to Q. . Wlls.;n() description or reference,in.the will to 5. aliloW'·tlwtthe give the particular shares which he l1elQahthe date of hisvvill·. ..his death he, possessed no Leeds & Li:V$rpQOl canal shares. of the rolls said: the gift the blaSfU"4· no words of description orreferl'DCe, by , whicn it, appears tb,atlle specific shares which he then had. If he had meant to give only the shares WhICh he had, he might have.q,esignated them as -his,' He iJ,ltended his legatees to have so many canal shai-es,:l1tit,not giVing the specific $hares he had, he gave nothing which was distinguished or severed from the rest of the testator's estate, but, in effect. gsVtpsoch an indefinite sum of .money as would suffice to purchase so many he had ·given, thos6,sllar'8s, l:leing any 8uchsh,ares as could he purchasl/d·. and not certain and particuls,r. .. I.nDrYden v. Owings, 49 Md. 356, the. testator,atthe time of making in his possession eight state of his will, and at. the time, of, Missouri bonds, of the value,of.SIOOO. His will contained this legacy: "I give and bequeath to VirginiaM. Owings $8,000 in theatate of Missouri bonds." One year after ,the; death of the testator ihis executrix, delivered to the legatee $8,000 iu!.state of Missouri bonds, hut the latter claimed that the legacy was specifid; and that she was entitled to interest on the bouds from the testator's !ieMh. The court decided that, according to weU·settled rules of coustruction, in order to constitute a specific legllcy;it is necessary for thei distinguish or identify the stock or thing given by saying "stock now in my possession?' "or now standing in .my name," or some other equivalent expression marking the corpus of ,the stock bequeathed, and showillg that the testator meant that identic81 stock, and no other, should ,pass to the legatee. In Ludlam's Estate, 13 Pa; St. 188, cited by thedefenQa,nt's counsel, the testator devised to his nephew "one thousand dollars of the United States six per cent. stock or loan of the year 1812, standing iumy name on the books of the loanoffice, Pennsylvania, as per certificate No. 269." The loan had heen paid to the testator.in his life-time. The court then held that this was a .specificlegacy; that it WllS not ahequest of $1,000, payable out of the stock held by him, but $1,000 of .stock which stands in his name in the loan-office certificate 269. It is the very thing itself,-the corpus of the stock. The same court, in ArmBtrong's Appeal, 63 Pa. St. 312, used the following language:
VlnT;ED
REYNOLDS·
721
.. A Qamonstrative legacy is the bequest ofa certain sum of money. with th,e direction that it shall be paid out of a particular fund. It differs from a specilici legacy in' that, if the fund out of vi' hich it is payable fails for any cause, it is nevertheless entitled to come on We estate as a genel'allegaey; and it differs from a generlillegacy in this: that it does not abate in that class, but in the, class of specific legacies." , Had 'thelegacy totheplaintiff been restricted to $2,000 "of my South Ward Loan ofChestet,!l' or had the testatrix given $2;000 of the debt belonging to her on o'ri.e of the bonds in her possession at the date of hier will,particularly describing the bond by number and date, showing 'that, intended to give to the plaintiff that amount of a speei£ed debt, a different caSe would pave been presented; but, in the absence of any stich expressed or' implied intention to this a specific legacy, it'.tI1ust(urider the 'rules for the construction of similar' be:beheld to be legacy, and payable out of the estate. " 8avue v. Bldcket, 1 P. Wins. 777; CJhaworth v. Beech, 4Ves.'565; Smith v; Jilitzgerald, 3 Ves. & B. 5; GillaU1ne v. Adderley, IS Qiddingsv. Seward; 16 N. Y. 365; Nf1Wton v. Stanley, 28 N.Y. 61; Ncirri:8'v. Th011U1On, 16 N.J. Eq. 222. See,: also, American note to ¥acguire,2Whlte& T. Lead. Cas. 646, and 3 Amer. Dec. , ";, i" Judgment will' be entered for the plaintiff for the sum of $2,266.66, that amount being the principal of the legacy, with interest from the 1st day of Ootober, costa of s u i t . ' ! , "
UNITED S'rATE8
tI.
REYNOJ,DS.
(Dtatrict Court, E. D. South Carolina. January 8,1899.) PBnloNs-l'ROOUJlING 'PAYMENT-E'lrOEsStVE COMPENSATION:
At the instance of an ignorant pensioner, an attorney filled out the VOUchers necessary to obtain the first payment, forwarded them to the proper pension agent, reo ceived the latter's cbeck, procured the pensioner's indorsement tbereto, and drew tbe money. HeW that, although, he had no hand in procuring' the allowance of, tbe pension, he was still a "person instrumental in prosecutin,g the claim," wi,thin, 'the meaning of Rev. St. U.S, § which makes it a misdemeanor for such a person to retain a greater compensation than is allowed by the pension laws.
At Law. Indictment of Thomas J. Reynolds for wrongfully withholding pension money. On motion to instruct the jury to return a verdict of not guilty. Denied. B. A. Hagood, Asst. U. S. Atty. S. J. Lee, for SIMONTON, J. The defendant is indicted under section 5485, Rev. St. U.:;. The indictment charges that the defendant, a "person instrumental in prosecuting the claim" of one Jack Danner for pension, wrongfully withheld from him the sum of $10. Danner was a private v.48F.no.9-46 .