Hunn's Will

3 Del. Cas. 55, 1823 Del. LEXIS 2

• Court: Orphan's Court of Delaware
• Decided: February 15, 1823
• Status: Published

Opinion

The opinion of the Chancellor. I have considered the will of Jonathan Hunn, the arguments of Mr. Hall, and the cases cited by him, and I am of opinion that the bequest of $1319 to Elizabeth Howell, Ann Mifflin and Samuel Rowland gives pecuniary and not specific legacies. I have looked into all the cases on the subject, in addition to those mentioned, and there [is] none in which the legacy was adjudged to be specific, unless the specific thing, or an aliquot part of it was given.

Mr. Hunn gave a definite sum, and not an aliquot part of the ground-rents to these legatees. In Ashburner v. MacGuire, 2 Bro.C.C. 108, the bond was given. And in Chaworth v. Beach, 4 Ves.Jr. 555; Innes v. Johns, 4 Ves.Jr. 568; Barton v. Cook, 5 Ves.Jr. 461; — they were specific, because the very thing was given. This is a general legacy with a reference to the particular fund which seemed to the testator most convenient to him to pay it, and which it was most likely, under the particular circumstances, he would appropriate to this purpose, as far as it would go, especially too when he had ascertained that its amount was precarious. In Raymond v. Broadbelt, 5 Ves.Jr. 199, the Lord Chancellor said, “There is a general legacy but attended with the qualifications of a specific legacy, yet, with an appropriation upon part of the property. That was the ground I went upon in Roberts v. Pocock, and that is the case here.” Roberts v. Pocock is strictly in point. I refer to Simmons v. Vallance, 4 Bro.C.C. 345; Sibbly v. Perry, 7 Ves.Jr. 524; Webster v. Hale, 8 Ves.Jr. 410; Deane v. Test, 9 Ves.Jr. 146; Gillaume v. Adderly, 15 Ves.Jr. 334; Smith v. Fitzgerald, 3 Ves. & Bea. 2, — as shedding much light on this subject. The case in Vesey and Beames is very satisfactory. There legacies were given in precise sums, not equal to the debt “out” of which they were to be raised. The legatees claimed the whole as specific; and, although the testator conceived that the legacies would exhaust or nearly exhaust the whole debt, according to his computation of the amount, it was adjudged that they were entitled to nothing more than the sums of money bequeathed, as the debt was not given, but only constituted a fund out of which the legacies were to be paid.

It seems to me, from the whole context of the will, that Mr. Hunn intended an actual bona fide repayment or return of the $3319. This he says he had provided for in the year 1810, so as substantially to comply with the Article of 1800. And as he was bound in justice to do so, and felt disposed to mete out the same measure that he should had his wife survived him, after her death, he made an arrangement by will, and gave and devised the ground-rent and $319 in the manner mentioned in her will; and that he considered as a compliance with the demands of strict justice. All this while the security of the ground-rent was not doubted, or it could not have been in his estimation a compliance with the demands of strict justice. Then he devised the ground-rent itself; but having discovered that a material change had taken place by its insecurity, he changed his plan and, in lieu of the ground-rent and $319, he devised a mortgage of $2000 which he deemed perfectly safe, and $1319 to be raised out of the ground-rent. He would not have substituted the mortgage and $1319, without intending to secure these legacies; and when he declares that he changes his plan and bequeathes the mortgage and $1319 in lieu of the ground-rent, I cannot conceive how the ground-rent, or any part of it, can be specifically retained. It was not a partial change that he intended. He intended to appropriate a certain and sure fund to the payment of money which he held himself bound in justice to return.

He probably expected that the ground-rent was sufficient for the $1319, and for more, but he has expressed no opinion of that sort; and a conjecture should not avail against so many express declarations of his intention to pay the whole sum of $3319, and against the repeated bequests of $1319. We see the prima facie intention of the testator, and that should not be overruled but by some clear and explicit expression of a contrary intention. And there is none such.

In every provision which he made for returning the money received from his wife’s estate, as well before her death as after, he guarded against the claim under the Article, because he did not intend to make a double satisfaction, one by his will, and another by the Article, for the same money; and because he deemed his arrangement, whenever made, and whatever it was, sufficiently a satisfaction of the Article. It was done from an abundance of caution, and I can discover no other intention by it than to confine the parties to the will, for satisfaction. He had done so before the investment of money in the mortgage and in the ground-rent, and it indicates no other design than such as I have mentioned.