BELT, J.
This suit is to determine the proper construction of the last will and testament of Eliza Margaret Preston, who died in Portland, Oregon, on Febru
ary 20, 1935, leaving an estate of an appraised value of $18,448.75, but which had only an approximate net value of $12,000. Eliza Margaret Preston left surviving her no children or other lineal descendants. Her nearest relatives were two brothers and a niece, who lived in the state of Washington, and a nephew Byrne Marconnier, the son of a predeceased sister, who lived in New York City.
The will, so far as material herein, provides as follows:
“First: I give and bequeath unto my niece, Patricia Lynch of Walla Walla, Washington, the sum of One Dollar ($1.00).
“Second: I give and bequeath unto my brother Martin Bernard Lynch, of Walla Walla, Washington, the sum of One Dollar ($1.00).
“Third: I give and bequeath unto Byrne Marconnier, my nephew, of New York City, the sum of $5000.00 to be paid from monies as and when received from my former husband, Charles Bliss Preston, under and by virtue of that certain agreement made and entered into by and between said Charles Bliss Preston and myself on or. about November 18th, 1931, wherein and whereby said Charles Bliss Preston agreed to pay me the sum of twenty-five thousand dollars ($25,000.00), said contract being in connection with divorce proceedings instituted by me against my said former husband, Charles Bliss Preston.
‘ ‘ Fourth: I give and bequeath unto Eula Cavanaugh Cohan, of Portland, Oregon,.all of my diamonds and other jewelry.
“Fifth: All of the rest, residue and remainder of my estate, both real, personal and mixed, of every nature and description and wheresoever situated, of which I may die seized or possessed, or in which I may have any interest at the time of my decease, I give, devise and bequeath unto Eula Cavanaugh Cohan and Frank D. Cohan, of Portland, Oregon, in equal shares; to have and to hold the same absolutely and forever and to use and enjoy and dispose of as they may see fit.”
On January 14, 1936, Byrne Marconnier, named as legatee in the third paragraph of the will, filed a petition in the lower court praying that the will should be so construed as to create an absolute gift of $5,000 in his favor, entitling him to such sum from the general assets of the estate even though the proceeds of the fund specifically mentioned in such paragraph were insufficient for that purpose.
It is conceded that the testatrix had no contract with her former husband, Charles Bliss Preston, wherein the latter agreed to pay her the sum of $25,000. The record, however, does disclose a property settlement contract,, dated November 14,1931, between testatrix and her then husband, whereby a trust estate was established from which she was to receive, during h.er lifetime, the sum of $250 per month, plus one-third of the annual income in excess of $9,000 from certain properties in the state of Washington. It was this contract to which the testatrix undoubtedly referred in her will. It is admitted that the executors of the estate have collected only the sum of $604.05 due under such contract.
Appellants contend that the gift to Marconnier was not absolute and unconditional, but that the payment of $5,000 was contingent upon its being derived from the property settlement contract. Hence appellants assert that Marconnier is entitled to receive only the sum of $604.05 and not $5,000.
The circuit court, department of probate, entered a decree in accordance with the contentions of Marconnier, that a demonstrative legacy had been created and therefore that the legacy was a charge against the general assets of the estate. Hence this appeal.
The sole question is whether the gift is a specific or a demonstrative legacy. If it is a specific legacy, the
respondent will receive only $604.05, or the amount collected by the executors of the estate; if it is a demonstrative legacy, the respondent will receive the full sum of $5,000.
A demonstrative legacy is a “gift of money or other property charged on a particular fund in such way as not to amount to a gift of the corpus of the fund, or to evidence an intent to relieve the general estate from liability in case the fund fails:
Nusly v. Curtis,
36 Colo. 464 (85 P. 846, 7 L. R. A. (N. S.) 592, 118 Am. St. Rep. 113, 10 Ann. Cas. 1134), cited with approval in 28 R. C. L. 292.
As stated in
Walls v. Stewart,
16 Pa. St. 275, a specific legacy is one “where the gift is of the fund itself, in whole or in part, or so charged upon the object made subject to it as to show an intent to burden that object alone with the payment, * * * and consequently liable to be adeemed by the alienation or destruction of the object”. It is a gift of a part of the decedent’s estate identified and differentiated from all other parts: 28 R. C. L. 291.
Two elements are necessary to constitute a demonstrative legacy, viz, (1) it must appear first that the testator intended to make an unconditional gift in the nature of a general legacy; (2) the gift must be given with reference to a particular fund as a primary source of payment. It is plain that the second element exists. The vital question is: Does the legacy contain the first essential element, viz, the intention to make an absolute and unconditional gift?
The courts are in accord as to what constitutes a specific or a demonstrative legacy. The difficulty lies not in the statement of the law but rather in its application; The books are replete with cases involving the question of whether certain legacies were specific or
demonstrative and it is apparent that the decision in each case hinged upon the precise phraseology in the will. It is, therefore, idle to review cases as none of them contain language similar to that of the will under consideration.
Whether a bequest is specific or- demonstrative depends entirely upon, the intention of the testator as expressed in his will and as gleaned from the facts and circumstances surrounding its execution. No technical rule of construction should be permitted to supersede this cardinal principle. Did the testatrix herein intend to make this gift a charge upon a specific fund? Did she intend to make the gift a charge against the general assets of her estate-in the event the specific fund failed? These are the vital questions.
If Eliza Margaret Preston had stated in her will that “I bequeath to my nephew Byrne Marconnier the sum of $5,000 to be paid from money coming to me from my former husband, Charles Bliss Preston, by virtue Of a property settlement contract, and not otherwise,” the bequest would undoubtedly be specific. If, however, the testatrix had said, “I bequeath to my nephew Byrne Marconnier the sum of $5,000 to be paid* if possible, from money coming to me from my former husband, Charles Bliss Preston, by virtue of a property settlement contract; otherwise out of funds belonging to my estate,” it would likewise be clear that a demonstrative legacy had been created.
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BELT, J.
This suit is to determine the proper construction of the last will and testament of Eliza Margaret Preston, who died in Portland, Oregon, on Febru
ary 20, 1935, leaving an estate of an appraised value of $18,448.75, but which had only an approximate net value of $12,000. Eliza Margaret Preston left surviving her no children or other lineal descendants. Her nearest relatives were two brothers and a niece, who lived in the state of Washington, and a nephew Byrne Marconnier, the son of a predeceased sister, who lived in New York City.
The will, so far as material herein, provides as follows:
“First: I give and bequeath unto my niece, Patricia Lynch of Walla Walla, Washington, the sum of One Dollar ($1.00).
“Second: I give and bequeath unto my brother Martin Bernard Lynch, of Walla Walla, Washington, the sum of One Dollar ($1.00).
“Third: I give and bequeath unto Byrne Marconnier, my nephew, of New York City, the sum of $5000.00 to be paid from monies as and when received from my former husband, Charles Bliss Preston, under and by virtue of that certain agreement made and entered into by and between said Charles Bliss Preston and myself on or. about November 18th, 1931, wherein and whereby said Charles Bliss Preston agreed to pay me the sum of twenty-five thousand dollars ($25,000.00), said contract being in connection with divorce proceedings instituted by me against my said former husband, Charles Bliss Preston.
‘ ‘ Fourth: I give and bequeath unto Eula Cavanaugh Cohan, of Portland, Oregon,.all of my diamonds and other jewelry.
“Fifth: All of the rest, residue and remainder of my estate, both real, personal and mixed, of every nature and description and wheresoever situated, of which I may die seized or possessed, or in which I may have any interest at the time of my decease, I give, devise and bequeath unto Eula Cavanaugh Cohan and Frank D. Cohan, of Portland, Oregon, in equal shares; to have and to hold the same absolutely and forever and to use and enjoy and dispose of as they may see fit.”
On January 14, 1936, Byrne Marconnier, named as legatee in the third paragraph of the will, filed a petition in the lower court praying that the will should be so construed as to create an absolute gift of $5,000 in his favor, entitling him to such sum from the general assets of the estate even though the proceeds of the fund specifically mentioned in such paragraph were insufficient for that purpose.
It is conceded that the testatrix had no contract with her former husband, Charles Bliss Preston, wherein the latter agreed to pay her the sum of $25,000. The record, however, does disclose a property settlement contract,, dated November 14,1931, between testatrix and her then husband, whereby a trust estate was established from which she was to receive, during h.er lifetime, the sum of $250 per month, plus one-third of the annual income in excess of $9,000 from certain properties in the state of Washington. It was this contract to which the testatrix undoubtedly referred in her will. It is admitted that the executors of the estate have collected only the sum of $604.05 due under such contract.
Appellants contend that the gift to Marconnier was not absolute and unconditional, but that the payment of $5,000 was contingent upon its being derived from the property settlement contract. Hence appellants assert that Marconnier is entitled to receive only the sum of $604.05 and not $5,000.
The circuit court, department of probate, entered a decree in accordance with the contentions of Marconnier, that a demonstrative legacy had been created and therefore that the legacy was a charge against the general assets of the estate. Hence this appeal.
The sole question is whether the gift is a specific or a demonstrative legacy. If it is a specific legacy, the
respondent will receive only $604.05, or the amount collected by the executors of the estate; if it is a demonstrative legacy, the respondent will receive the full sum of $5,000.
A demonstrative legacy is a “gift of money or other property charged on a particular fund in such way as not to amount to a gift of the corpus of the fund, or to evidence an intent to relieve the general estate from liability in case the fund fails:
Nusly v. Curtis,
36 Colo. 464 (85 P. 846, 7 L. R. A. (N. S.) 592, 118 Am. St. Rep. 113, 10 Ann. Cas. 1134), cited with approval in 28 R. C. L. 292.
As stated in
Walls v. Stewart,
16 Pa. St. 275, a specific legacy is one “where the gift is of the fund itself, in whole or in part, or so charged upon the object made subject to it as to show an intent to burden that object alone with the payment, * * * and consequently liable to be adeemed by the alienation or destruction of the object”. It is a gift of a part of the decedent’s estate identified and differentiated from all other parts: 28 R. C. L. 291.
Two elements are necessary to constitute a demonstrative legacy, viz, (1) it must appear first that the testator intended to make an unconditional gift in the nature of a general legacy; (2) the gift must be given with reference to a particular fund as a primary source of payment. It is plain that the second element exists. The vital question is: Does the legacy contain the first essential element, viz, the intention to make an absolute and unconditional gift?
The courts are in accord as to what constitutes a specific or a demonstrative legacy. The difficulty lies not in the statement of the law but rather in its application; The books are replete with cases involving the question of whether certain legacies were specific or
demonstrative and it is apparent that the decision in each case hinged upon the precise phraseology in the will. It is, therefore, idle to review cases as none of them contain language similar to that of the will under consideration.
Whether a bequest is specific or- demonstrative depends entirely upon, the intention of the testator as expressed in his will and as gleaned from the facts and circumstances surrounding its execution. No technical rule of construction should be permitted to supersede this cardinal principle. Did the testatrix herein intend to make this gift a charge upon a specific fund? Did she intend to make the gift a charge against the general assets of her estate-in the event the specific fund failed? These are the vital questions.
If Eliza Margaret Preston had stated in her will that “I bequeath to my nephew Byrne Marconnier the sum of $5,000 to be paid from money coming to me from my former husband, Charles Bliss Preston, by virtue Of a property settlement contract, and not otherwise,” the bequest would undoubtedly be specific. If, however, the testatrix had said, “I bequeath to my nephew Byrne Marconnier the sum of $5,000 to be paid* if possible, from money coming to me from my former husband, Charles Bliss Preston, by virtue of a property settlement contract; otherwise out of funds belonging to my estate,” it would likewise be clear that a demonstrative legacy had been created. The testatrix, in the will executed by her, did not so clearly express her intention, but we are convinced that no absolute and unconditional bequest of $5,000 was intended. -Such sum was not to be paid in any event, but only “from monies as and when received from my former husband”. Here was a gift which was made a charge upon a particular fund and-it is believed that the testatrix never intended,
in the event such money was not received from her former husband, that the general assets of her estate should be so charged. The use of the words “as and when received” plainly denote a contingency. If it was the intention of the testatrix to make an absolute and unconditional gift of $5,000 to her nephew, reference to the money which she expected to receive from her former husband was unnecessary. Testatrix, in our opinion, intended to make a gift to her nephew of $5,000, “if” or “provided” the money with which to pay such sum was received by her estate from her former husband. She intended this gift to be a charge on a particular fund and there is nothing in the will to indicate that it was to be a charge against the general assets of her estate in the event of failure of the designated source of funds. See
Waters v. Selleck,
201 Ind. 593 (170 N. E. 20), and cases cited in footnotes. As stated in
In re Jepson’s Estate,
181 Cal. 745 (186 P. 352):
“While it is true that a legacy is presumed to be general unless it clearly appears to be specific, especially where it is of pecuniary character, the intent of the testator necessarily controls, and where it appears that his intent was to give a particular thing or a given sum of money, not generally, but only from a specified and definitely ascertained source, the court has no choice but to give effect to that intent.”
Testatrix erroneously thought she had a claim against her former husband for $25,000. Having bequeathed $5,000 to her nephew, she undoubtedly intended the balance, viz, $20,000, to go to the Cohans under the residuary clause of the will. Assuming that respondent’s theory of a demonstrative legacy is correct, what would have been the result had the testatrix bequeathed $20,000 from such fund to some third per
son? Since there remained in the estate only $10,000, if the demonstrative legacies were to he paid from the general assets, the nephew would receive only $2,000 and the other demonstrative legatees $8,000. Yet it is now contended that there was an absolute and unconditional gift of $5,000 to the respondent.
Listed in the assets of the estate is a dwelling house — the home of decedent — appraised at $11,000. The estate had cash in the sum of $1,338.18. It is plain that, under the residuary clause of the will, testatrix intended the home to go to Eula Cavanaugh Cohan and her husband. If the $5,000 bequest to the nephew is a charge against the general assets of the estate, the result will be either a forced sale of the home or a mortgage incumbrance thereom In view of the situation of the parties and their relationship, it is difficult to believe that, the testatrix ever contemplated such a result.
The intention of the testatrix is the guiding star and all other rules of construction are subordinate thereto. As stated in
Gildersleeve v. Lee,
100 Or. 578 (198 P. 246, 36 A. L. R. 1166):
“The controlling rule in ascertaining the meaning of the will of Pearl D. Gildersleeve to which all technical rules' of construction must give way is, to give effect to the true intent and meaning of the testatrix as the same may be gathered from the whole instrument; and in arriving at that intention the relation of the testatrix to the beneficiaries named in the will and the circumstances surrounding her at the time of its execution are to be taken into consideration and the will read as nearly as may be from her standpoint, giving effect, if possible, to every clause and portion of it.”
The court is not unmindful that a demonstrative legacy is favored in law as against a specific legacy but, after all, it is the. duty of the court to carry out the intention of the testatrix if it can be gleaned from
the language of the will itself and the facts and circumstances surrounding its execution. In the solution of such problem every word, clause and sentence of the will must be given effect. The will must be considered by its four corners in the light of the situation of the parties.
In our opinion, respondent, in urging the theory of a demonstrative legacy, fads to give significance to the words, “to be paid from monies
as
and
when received
from my former husband”. (Italics ours.) It: will not do to ignore them as testatrix, in using such words, must have had something in mind. We think they were used for the purpose of charging the bequest against a specific fund, distinct from the remainder .of her property.
Eva Cavanaugh Cohan was not a blood relative of testatrix but was a niece of decedent’s first husband. She had lived with decedent since a child six years of age. The love and affection that existed between decedent and Mrs. Cohan was that of a proud mother and a devoted daughter. There was every reason for testatrix to select Mrs. Cohan as the principal object of her bounty.
The judgment is reversed and the cause remanded with directions to proceed in accordance with this opinion. Neither party will recover costs or disbursements.
Bean, C. J., and Rand and Kelly, JJ., concur.