Williams, Ch. J.
The question upon this appeal, is, what property is given to the appellant, by this will, in the East-Haddam bank stock.
The testator, on the 3d of July, 1841, after having made a disposition of a part of his personal property, on the 30th of June, completed the disposition of his whole estate, both real and personal; and having given to Hannah Brainerd, the appellant, by the former will, as the friend of his mother, the use of sundry articles, which he deemed of peculiar value, he now makes a more substantial donation in these words: “I give to Miss Hannah Brainerd of Hartford, a long time member of my father’s family, my East-Haddam bank stock. The notes secured upon said stock are to be paid, by my executor or administrator, so far as may be consistent with my will; and said stock to be in payment and discharge of my indebtedness to her, if enough for that purpose; and if said stock exceed said indebtedness, then the use of all such stock to go to the said Hannah for life: after her decease, to go with the residuum of my property.” That this was a specific legacy to Miss Brainerd, cannot admit of a doubt. A [7]*7specific legacy is a disposition of a certain thing, which may be known and distinguished from any other thing of the same kind,—so that the legatee may say, I have a right to this very thing. 1 Pow. Swinb. on Wills, 308. All the testator’s interest in thirty shares of U. S. Bank stock, was held a specific legacy. Walton v. Walton, 7 Johns. Ch. R. 202. If he had the stock at the time, it would be considered specific, and that he meant the identical stock. 3 Ves. jun. 310. The legacy, then, is as specific as if he had given his horse or his watch; and it is a settled principle, that a specific legacy shall not be taken for the payment of debts until the general fund is exhausted.
It is said, however, that in this case, the bank stock was mortgaged to the bank, on the very day the will was made, with a power to sell, and of course, must be subject to that mortgage.
That certainly is true as between the mortgagee and the legatee; but not necessarily so between the legatee and the executor. It is the duty of the executor to pay all the debts, without reference to any collateral security existing; and the property thus relieved is subject to the will of the testator; nor can we see, that the time of making this mortgage could change the general rule.
The testator, then, must be supposed to make this bequest, with knowledge of this rule, and with an understanding that the property bequeathed must be relieved of this incumbrance, unless something appear to show a different intent. So far from that, in this case, the testator explicitly provides, that the notes secured on said stock shall be paid by his executor. He is anxious that it should be known, that his intent corresponds with the law, or that it shall not be frustrated by it. It is as if he had said, this incumbrance is not to be in the way of her enjoying this property: my executor must see to that. Had he stopped here, there could be no question what was meant; but he makes this addition—“ so far as may be consistent with my will;" and also provides, that the stock should go in payment of this indebtedness to said Hannah Brainerd, if there was enough for that purpose.
It brings us, then, to this precise question, whether there is in the will any thing inconsistent with the direction before [8]*8expressed. If there is not, the appellant is entitled to this stock freed from the incumbrance.
It is said, this could not have been his intent, because the fund he relied upon for the purpose of paying debts, is so totally inadequate for the purpose. That fund, they say, was the cotton goods, which, with what he has in the hands of agents, he estimates at about enough to pay his debts, strict regard being observed to allow no false or extravagant claims. And now it appears, that debts have been allowed, by the commissioners, to the amount of 7,143 dollars, besides the debt due the appellant; and that the cotton goods were worth, at the time of the testator’s death, but 2,400 dollars; from which it is inferred, that he could not have intended to include the bank debt. This clause in the will differs entirely from cases where a fund is designated from which the debts are to be paid, and the fund falls short. This is a mere expression of opinion—an estimate amounting to little more than a strong hope that these cottons will be sufficient, if no false or extravagant claims are allowed.
What data he had before him, whereon to make an estimate of the value of this property, or of the amount of debts, we know not; but we do know how often such estimates are fallacious. We know not but he greatly over-estimated the cotton, or underrated the amount of debts. However the fact may have been, it would go but little way to prove that he did not mean what he said, when he directed his executor to pay his debts, imposing no restriction but that he should not pay false or extravagant ones. Far more probable is it, that the property is worth much less than he supposed, or that he was a more partial judge in regard to the debts than the commissioners,—than that he did not intend this incumbrance should be removed, by the executor. The fact, if proved, is of too equivocal a character to change the construction of this will. He has indeed modified the provision of the first will, by directing that the debt of the appellant should be paid from this stock; but this, so far from being an argument in favour of the appellees, rather operates the other way; for if he intended any other debts should have been paid in the same way, we may reasonably suppose he would have made similar provision. This would have been the ordinary course.
[9]*9Here we may advert to the consequences which would seem to follow from this claim of the appellees. If the testator intended, that the bank debt and the appellant’s debt should both be paid out of the East-Haddam bank stock, he must have intended to trifle with this legatee, when he made this donation. The legacy purports to convey the use of all his East-Haddam bank stock, deducting her debts. The stock is appraised at 6320 dollars; her debt is 1530 dollars; leaving 4790 dollars. The debt due to the bank is 4600 dollars; so that this munificent donation to this friend of his mother, so long a member of his father’s family, dwindles down to the pittance of dividends for life on stock amounting to 190 dollars.
The fact that he pledged the stock, with power to sell, upon the very day he made the will, is also urged as evidence of his intent that it should be subject to this incumbrance; and yet we find him, that very day, directing the executor to pay this debt, and procuring an extension of time on his debts.
But he adds to his direction that the debt of Miss Brainerd shall be paid out of the bank stock, “if there should be enough of it.” This, it is said, shows an intent that it should be taken for the bank debt. But it only proves, that he knew it might possibly be taken, or what perhaps at that time is more probable, he knew that this stock was subject to the same casualties which had attended much more prominent institutions. If he made any calculations, he knew that the stock would pay both debts, and leave a balance, unless there was a depreciation in the stock.
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Williams, Ch. J.
The question upon this appeal, is, what property is given to the appellant, by this will, in the East-Haddam bank stock.
The testator, on the 3d of July, 1841, after having made a disposition of a part of his personal property, on the 30th of June, completed the disposition of his whole estate, both real and personal; and having given to Hannah Brainerd, the appellant, by the former will, as the friend of his mother, the use of sundry articles, which he deemed of peculiar value, he now makes a more substantial donation in these words: “I give to Miss Hannah Brainerd of Hartford, a long time member of my father’s family, my East-Haddam bank stock. The notes secured upon said stock are to be paid, by my executor or administrator, so far as may be consistent with my will; and said stock to be in payment and discharge of my indebtedness to her, if enough for that purpose; and if said stock exceed said indebtedness, then the use of all such stock to go to the said Hannah for life: after her decease, to go with the residuum of my property.” That this was a specific legacy to Miss Brainerd, cannot admit of a doubt. A [7]*7specific legacy is a disposition of a certain thing, which may be known and distinguished from any other thing of the same kind,—so that the legatee may say, I have a right to this very thing. 1 Pow. Swinb. on Wills, 308. All the testator’s interest in thirty shares of U. S. Bank stock, was held a specific legacy. Walton v. Walton, 7 Johns. Ch. R. 202. If he had the stock at the time, it would be considered specific, and that he meant the identical stock. 3 Ves. jun. 310. The legacy, then, is as specific as if he had given his horse or his watch; and it is a settled principle, that a specific legacy shall not be taken for the payment of debts until the general fund is exhausted.
It is said, however, that in this case, the bank stock was mortgaged to the bank, on the very day the will was made, with a power to sell, and of course, must be subject to that mortgage.
That certainly is true as between the mortgagee and the legatee; but not necessarily so between the legatee and the executor. It is the duty of the executor to pay all the debts, without reference to any collateral security existing; and the property thus relieved is subject to the will of the testator; nor can we see, that the time of making this mortgage could change the general rule.
The testator, then, must be supposed to make this bequest, with knowledge of this rule, and with an understanding that the property bequeathed must be relieved of this incumbrance, unless something appear to show a different intent. So far from that, in this case, the testator explicitly provides, that the notes secured on said stock shall be paid by his executor. He is anxious that it should be known, that his intent corresponds with the law, or that it shall not be frustrated by it. It is as if he had said, this incumbrance is not to be in the way of her enjoying this property: my executor must see to that. Had he stopped here, there could be no question what was meant; but he makes this addition—“ so far as may be consistent with my will;" and also provides, that the stock should go in payment of this indebtedness to said Hannah Brainerd, if there was enough for that purpose.
It brings us, then, to this precise question, whether there is in the will any thing inconsistent with the direction before [8]*8expressed. If there is not, the appellant is entitled to this stock freed from the incumbrance.
It is said, this could not have been his intent, because the fund he relied upon for the purpose of paying debts, is so totally inadequate for the purpose. That fund, they say, was the cotton goods, which, with what he has in the hands of agents, he estimates at about enough to pay his debts, strict regard being observed to allow no false or extravagant claims. And now it appears, that debts have been allowed, by the commissioners, to the amount of 7,143 dollars, besides the debt due the appellant; and that the cotton goods were worth, at the time of the testator’s death, but 2,400 dollars; from which it is inferred, that he could not have intended to include the bank debt. This clause in the will differs entirely from cases where a fund is designated from which the debts are to be paid, and the fund falls short. This is a mere expression of opinion—an estimate amounting to little more than a strong hope that these cottons will be sufficient, if no false or extravagant claims are allowed.
What data he had before him, whereon to make an estimate of the value of this property, or of the amount of debts, we know not; but we do know how often such estimates are fallacious. We know not but he greatly over-estimated the cotton, or underrated the amount of debts. However the fact may have been, it would go but little way to prove that he did not mean what he said, when he directed his executor to pay his debts, imposing no restriction but that he should not pay false or extravagant ones. Far more probable is it, that the property is worth much less than he supposed, or that he was a more partial judge in regard to the debts than the commissioners,—than that he did not intend this incumbrance should be removed, by the executor. The fact, if proved, is of too equivocal a character to change the construction of this will. He has indeed modified the provision of the first will, by directing that the debt of the appellant should be paid from this stock; but this, so far from being an argument in favour of the appellees, rather operates the other way; for if he intended any other debts should have been paid in the same way, we may reasonably suppose he would have made similar provision. This would have been the ordinary course.
[9]*9Here we may advert to the consequences which would seem to follow from this claim of the appellees. If the testator intended, that the bank debt and the appellant’s debt should both be paid out of the East-Haddam bank stock, he must have intended to trifle with this legatee, when he made this donation. The legacy purports to convey the use of all his East-Haddam bank stock, deducting her debts. The stock is appraised at 6320 dollars; her debt is 1530 dollars; leaving 4790 dollars. The debt due to the bank is 4600 dollars; so that this munificent donation to this friend of his mother, so long a member of his father’s family, dwindles down to the pittance of dividends for life on stock amounting to 190 dollars.
The fact that he pledged the stock, with power to sell, upon the very day he made the will, is also urged as evidence of his intent that it should be subject to this incumbrance; and yet we find him, that very day, directing the executor to pay this debt, and procuring an extension of time on his debts.
But he adds to his direction that the debt of Miss Brainerd shall be paid out of the bank stock, “if there should be enough of it.” This, it is said, shows an intent that it should be taken for the bank debt. But it only proves, that he knew it might possibly be taken, or what perhaps at that time is more probable, he knew that this stock was subject to the same casualties which had attended much more prominent institutions. If he made any calculations, he knew that the stock would pay both debts, and leave a balance, unless there was a depreciation in the stock.
We are then again brought back to the question, whether the executor can pay this debt, consistently with the other provisions of this will? If so, it must be his duty to do it.
The two instruments, one dated the 30th of June, and the other the 3d of July, though made at different times, constituted one will, and are to be construed together; and his intent is found from the whole compared.
The first paper purports only to convey some particular articles of personal property, after payment of debts to Miss Brainerd and Mrs. Sarah Cowdrey, closing with an intimation that something further was intended. On the 3d of July following, he carries out this intention, and after the clause alluded to, in the first part of this opinion, he makes a general [10]*10devise of all the rest and residue of his property, real and personal, (not necessarily taken to pay his lawful debts,) to Mrs. Cowdrey and her son. Had he stopped here, it could not have been claimed, that it interfered at all with the legacy to Miss Brainerd. All that is given is the estate remaining after the payment of his lawful debts, including of course the legacy just given.
But the will proceeds further, and says, it being understood that Mrs. Cowdrey shall have exclusively the dwelling-house, and after her death, the factory estate shall be wholly the estate of said Loren. It is claimed, that by “factory estate,” the devisor means the factory and machinery; and so this machinery is also specifically devised, and cannot be sold to pay debts. But we see nothing in the words “factory estate,” which necessarily imports a conveyance of the machinery in the factory. It has been decided, by this court, that the machinery in a factory is personal property; and the word “estate” is one appropriated to real property, though it is sometimes applied to personal. There is certainly nothing to prove that he intended to convey machinery, unless we can infer it from the words “factory estate.” Had a man given his estate at East-Haddam, where he had a house and homestead, no one could pretend he intended to give the furniture in the house; and had he given his factory merely, it could hardly have been claimed, that he gave the furniture in it, or the machinery; and certainly, there is nothing in the term “estate,” which will convey a stronger idea of personal property; nor is there a syllable tending to show that he used the word “estate,” in any other than its legal sense.
It is asked, however, could he intend to strip his factory of all that could render it useful? If a farmer, having a well-stocked farm, and one well furnished with farming utensils, should order his lawful debts paid, and give legacies to one child, and devise his farm or his estate to another, it would hardly be claimed, that because that farm would be of no use without stock or farming implements, the stock or farming implements passed with the farm; and we see no difference in the principle. The factory estate and the farm would both possess a certain value, without the machinery or the implements used with them; but they would be of just as much more value, if these implements or that machinery were given [11]*11with them, as it would cost to supply them; and whether the devisor intended that both should pass or not, must be ascertained, not by the importance of them, but by the words he used and the general intent.
When then the farmer provides, that his debts shall be paid, and his farm pass to his son, we have no reason to suppose he means to give his son any thing but his land. And here, when the testator devises his “factory estate,” we see no reason to suppose he means to give any thing more than that estate; at all events, we cannot suppose, that by this expression, he intended to limit a former bequest, by which the personal property in this factory might be appropriated.
But we think the true view of this part of the will, is, to consider the devise to Loren, the son, as not intended to enlarge at all the estate before granted to the mother, but to direct how what he understood would eventually (after payment of debts &c.) be received under the will, should be divided between them. Mrs. Cowdrey should have the dwelling-house; the son, not the factory building, but the factory estate—that is, not the building merely, but the water-works and lands connected therewith. We can, therefore, see nothing in this part of the will, which will prevent the personal property in the factory from being taken for the payment of debts. Of course, the decree of the court of probate directing the bank stock to be sold for the payment of the debts, is erroneous.
The general rule that parol evidence is admissible to explain a latent ambiguity, is perfectly well settled; and that the condition of the testator’s property may be shown to raise this ambiguity, is also settled. Fonnereau v. Pointz, 1 Brown’s Ch. Rep. 472. Selwood v. Mildmay, 3 Ves. jun. 306. How far these principles are applicable to this case, we have not thought it necessary to determine, because whether the evidence is admitted or not, we think the result must be the same; and therefore, we advise the superior court to disaffirm the decree complained of.
In this opinion the other Judges concurred, except Waite, J., who declined sitting in the case.
Decree of probate disaffirmed.