Henry v. Graham
This text of 30 S.C. Eq. 100 (Henry v. Graham) is published on Counsel Stack Legal Research, covering Court of Appeals of South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
The opinion of the Court was delivered by
On the'point, whether the will charges the [108]*108debts of the testator on the estate owned by him at the date of his will, (which was entirely personal property,) in such manner as to reduce the gift of it to his legatees to a gift of the balance only, after deducting debts, I prefer to retain my opinion. It is not necessary to decide it here; both because I am now satisfied the legacy was general, and not specific; and because the third clause might be considered as a mere alternative to the second, and the words, “ after the payment of my debts,” as a mere reference to the general direction to pay the debts which precedes the second. Besides, I would ■ not, without necessity, enter into an examination of the seeming conflict, upon this point, between the case of Warley vs. Warley
If the gift of the whole personal estate to a single legatee, were a specific legacy, manifestly the gift of it to several, to be equally divided among them, must constitute them specific legatees as to their different shares. But the real question in the case is, whether the gift of the whole estate, in general terms, is a specific legacy. It is so said in Warley vs. Warley, and in Brown vs. James; and certainly the position is not totally devoid of support. .
But it does not strike me as entirely correct, as an abstract proposition. Unless there be something in the will to confine the general expressions of the gift to property of a particular description, or in a particular condition, the legacy is general and not specific. The distinction between these two sorts of legacies, says Mr. Williams,
It is not doubted that the bequest, in general terms, of a testator’s whole personal property at a particular place, may be regarded as a specific legacy, because the description of its position serves to discriminate it from all other property of like character situated elsewhere; or that where a testator disposes of real and personal property, describing it as his estate in another country, he having other estates differently described, this is specific, as in Nesbit vs. Murray,
It is not essential to a specific legacy, that the property bequeathed should actually exist in the testator at the making of the will, as Sir Thomas Plumer intimated, in Parrot vs. Worsfield.
Nor is it an invariable test of a specific legacy, that it be liable to ademption; as is held in the case last mentioned.
But after all that can be said,- there is not, and cannot, in the nature of things, be a specific intention, in a general and indefinite bequest of a whole estate, subject to continual changes, to an entire conversion, and including not only chattels, but choses of every description.
And so Mr. "Williams, concurring with Mr. Roper, sums up the doctrine: “ The bequest,” says he, “ of all a man’s per[110]*110sonal estate generally is not specific; — tbe very terms of snob a disposition demonstrate its generality ;
It is ordered, tbat tbe circuit decree, so far as it adjudges tbe after acquired real estate, referred to in tbe pleadings, primarily liable for tbe debts of tbe testator, be reversed and set aside; and it is adjudged and declared, tbat tbe personal estate upon wbicb tbe will operates, is tbe primary fund for payment of said debts. And it is ordered, tbat tbe case be remanded to tbe Circuit Court.
Decree reversed.
а) 1 Bail. Eq. 397.
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30 S.C. Eq. 100, Counsel Stack Legal Research, https://law.counselstack.com/opinion/henry-v-graham-scctapp-1856.