Mr. Chief Justice Alvey
delivered the opinion of the Court:
This appeal is taken by the sister, and the children of a deceased sister, as the next of kin of the late Alexander M. Kenaday, deceased, from an order of the court below, approving and passing what would appear to be a final account settled by the executrix of the deceased. And the questions presented on the appeal, as stated in the assignment of errors, have relation to the construction of the last will and testament of the deceased; the power and jurisdiction of the special term of the Supreme Court of this District, sitting to transact orphans’ court business, to make and enforce distribution of the residue or surplus of the personal estate of the deceased, not specifically or expressly disposed of by his will; and also as to the right of the executrix to be allowed certain sums claimed as credits in her account, against the exceptions of the appellants.
The ^deceased, Alexander M. Kenaday, died in this city of Washington, on March 25, 1897, leaving a last will and testament bearing date the 3d of April, 1894, and by which his widow, Mary Louise Kenaday, was made sole executrix, and which will was duly proved and admitted to probate, and letters testamentary'were granted to the executrix named. The deceased left no child or descendant; but he left one sister surviving, and several children of a deceased [13]*13sister, who pre-deceased the testator. The surviving sister and some of the children of the deceased sister are the appellants in this appeal, and the widow, the sole executrix, is the appellee.
The ease has been in this court on a former appeal (Sinnott v. Kenaday, 12 App. D. C. 115); but the specific questions now presented were not then decided by this court-We did, however, say, that the court below would have the power and jurisdiction to grant relief of the nature then prayed, upon a petition filed at the proper time. _ The petition in that case had been prematurely filed. There had been, at that time, no final or other account, in the nature of a full account, stated by the executrix and approved by the court, showing the true condition of the estate. The final, or what is substantially a full account, has now been stated, and distribution thereon made. The appellants excepted to the account and distribution, but the exceptions .were overruled, and the account and distribution were approved and passed by order of the court of October 11, 1898. It is from that order that this appeal is taken.
• By the will of the testator, all his real estate, of considerable quantity and value, was devised to his wife, and also a considerable portion of his personal estate. He specifies by general designation a particular class of claims bequeathed to his wife; and he then bequeaths to her his business as a claim agent, and as publisher of “The Vidette,” together with all books, papers, files, furniture, etc., etc., also 200 shares of the Sutro tunnel stock and Comstock bonds; also notes and evidences of indebtedness to him, “of more or less value; ” also deposits of currency entered on his bank book of the National Metropolitan Bank amounting to $10,000, more or less.
He then gives to his sister, Mrs. Arabella E>. Sinnott, of New Orleans (the sister who survives him), $12,000 in registered United States 4 per cent, bonds, on special deposit in the National Metropolitan Bank.
[14]*14Then follow gifts to the children of Mrs. Piles, his deceased sister, “ out of the residue of 4 per cent, bonds deposited as aforesaid $3,500 as follow:” — naming the legatees, and the amounts given to each, though the several amounts added only make $3,000, and not $3,500 — thus leaving of the residue of $3,500 United States bonds on deposit in bank, $500 undisposed of. It is alleged by the appellants that of these amounts thus given to the children of Mrs. Piles, the legacy of $500 given to Eloise Piles, and the legacy of $250 given to Henry O. Piles, have both lapsed by the death of the legatees in the lifetime of the testator.
By another clause of the will there is a promissory note for $1,100, secured by a chattel mortgage, made by Mrs. Hemenway, which he directed to be canceled, and that his executrix might allow Mrs. Hemenway $500 in settlement of her account. And then in what appears to be a separate clause of the will he declares that “the bond of the city of Richmond for $5,000 bearing 5 per cent, interest, payable January and July (on special deposit with the 4 per cent, bonds of the United States in the National Metropolitan Bank) is hereby devised and bequeathed to my wife and executrix.”
There are some other special provisions in the will, but ' nothing in addition to what we have recited that is at all material to the questions raised on this appeal. There is no residuary clause in the will. I
It appears by a certificate from the United States Treasury Department, that about a year after the date of the will, that is, on the 1st of April, 1895, the testator acquired and left standing in his name and to his credit, in the Treasury of the United States, additional $9,000 United States registered 4 per cent, bonds, and thus making the sum total of United States bonds held to his credit at the time of his death amount to $24,500. And in the absence of a residuary clause or bequest in the will, the principal question here is, to whom should these after acquired bonds, and the [15]*15$500 of the residue of the $15,500 bonds on special deposit in the bank, and the two lapsed legacies, or such residue thereof after payment of debts, and all other legitimate claims and charges to which they are subject, be distributed ?
The will is certainly very unskillfully drawn, but we think there is no great difficulty, by the application of the ordinary principles of construction, in getting at the intention of the testator, and the legal effect of the instrument.
In this final, or what appears to be the full account stated by the executrix, she charged herself with the amount of the inventory, and with the increased value or increment of the bonds belonging to the estate, the total amount of the inventory being the sum of $36,454.85. .Upon this amount she asked and'was allowed a commission of 10 per cent., making the sum of $3,645.48. This allowance of commission is excepted to by the appellants as being improper, or as excessive, under the facts of the case.
The executrix claimed and was allowed credit for $268.50 paid to the undertaker as funeral expenses; and she also claimed and was allowed as credits in her account the sum of $317 paid for a burial lot in Rock Creek Cemetery, and the sum of $575 paid for a monument placed over the grave of the deceased. These two latter sums are excepted to by the appellants as not being legally chargeable to the estate.
In making the distribution of the surplus or residue of the personal estate, after deductions of all claims and allowances and for debts paid, and for all legacies paid over or retained, the executrix took credit in her account, and in discharge of the inventory, for the household furniture, and the city of Richmond bond for $5,000; and she then makes distribution to herself of the balance, or remaining surplus of the estate, in this form: “ On account of the bequest- to her by the testator of ‘notes and evidences of indebtedness to me;’ ‘ deposits of currency entered on my bank book/and other personal estate, the residue consisting mainly of United States bonds and deposits in bank, $9,218.76.” This distri[16]*16bution is excepted to by the appellants, as being without right or warrant in law.
There is also an objection made by the appellants to a sale made by the executrix of $1,500 of the United States bonds, the proceeds of which sale, it appears, were paid over to the Piles legatees, and for which they gave their receipts to the executrix.
1. We shall first examine the question as to what right and nature of interest was taken by the widow and executrix of the testator, under the will; as upon the determination of that question the other questions raised by the exceptions to the account may, to a certain extent, depend.
There can be no question but that the bequest of the particular claims mentioned and described by the testator as then depending in the courts, were specific legacies, and would have been adeemed if they had been collected in the lifetime of the testator. And so the bequests in the succeeding clause- of the will whereby the testator gave to his wife “200 shares of Sutro stock and Comstock bonds; also notes and evidences of indebtedness to me, of more or less value; also deposits of currency entered in my bank book of the National Metropolitan Bank, amounting to $10,000, more or less,” are of the same character as the claims bequeathed. It is very clear that this bequest did not embrace United States registered bonds. In all these bequests specific things or matters are referred to as the objects of the bequests; and if they had been disposed of or extinguished by the testator-in his lifetime, the legacies would have ceased to exist as such. It has been held in repeated decisions, that á bequest of “100Z'consols now standing in my name at the Bank of England (Roper on Leg. Ch. 3), or of 100Z consols, part of my stock;” (Kirby v. Potter, 4 Ves. 750; Hays v. Hays, 1 Keen, 97; Shuttleworth v. Greaves, 4 M. & Cr. 35), are specific bequests. Aiid while a legacy is general when it is so given as not to amount to a bequest of a particular thing, yet a legacy is specific when it is a bequest of a specific part of [17]*17the testator’s personal estate, which is and can be distinguished from the rest of his personal estate. Therefore, a bequest of money to be received under a judgment or decree of court, is a specific bequest, and, consequently, not liable to abate with general legacies; and as a result of this principle, if the fund out of which such bequest is payable fails, or should for any cause prove to be insufficient to fulfill the bequest, the legatee must suffer the loss. Chase v. Lockerman, 11 Gill & Johnson, 186. If, therefore, a thing or subject-matter be bequeathed in a will by such description as to distinguish it from all other things disposed of by the will, so that it does not remain at the death of the testator as property embraced in any other bequest made by the will, it is a specific legacy, as distinguished from a general legacy; and the legatee is entitled to the very thing bequeathed if it be possible for the executor to deliver it to him, with all interest or dividends received; but if it can not be delivered, he can have no claim for compensation in money in lieu of the specific thing bequeathed by the will. But, as a distinguishing quality of a specific legacy, and one that gives it preference over other legacies, it must be paid or retained by the executor, while general legacies may be applied to the payment of debts of the estate of the deceased. Specific legacies must be paid or retained by the executor in preference to those which are general, and must not be sold or otherwise applied for the payment of debts or other charges against the estate until the general assets of the testator’s estate are exhausted. But while it enjoys this quality of preference or exemption, it is liable to be adeemed by the act of the testator in his lifetime; and this liability to ademption is a fair test of the character of the legacy itself.
According to the principles just stated, all the legacies; including those given to the wife, except the pecuniary legacy of $500, directed to be allowed to Mrs. Hemenway, are specific legacies; and therefore such legacies do not of course embrace the after-acquired United States bonds, or lapsed [18]*18legacies, or any other personal estate or funds of which the testator died possessed; but such estate or funds make up the residue of the estate, which is subject to be applied to the payment of debts, legacies and charges of all kinds, and expenses of administration, to which the estate is liable, to. the exoneration of the specific legacies.
But though there is no residuary clause in the will, and the specific legacies do not embrace or exhaust the entire personal estate, the testator did not die intestate as to this residue or surplus, remaining after payment of debts, and any legacy not otherwise provided for, and all the charges and expenses to which the estate was liable. Such surplus or residue devolved on his executrix. And the next question is, what interest did she take in it, if any, other than that of mere executrix for purposes of administration, and how and where is she to account for and distribute this undisposed-of surplus or residue?
• It is contended on behalf of the widow and executrix, that this surplus or residue, undisposed of by any express provision of the will, is by law vested in her as executrix; and that the orphans’ court, or the special term of the Supreme Oourt exercising the jurisdiction of the orphans’ court, under the Testamentary Act of 1798, Oh. 101, has no jurisdiction or power over the subject of this undisposed-of residue; and if distribution thereof is to be made, it can only be made and enforced by a court of equity, in the exercise of its jurisdiction in respect to implied or constructive tests. But to this contention we can not for a moment yield our assent.
It is true, according to the English testamentary system, at law, it had been the rule from the earliest period, that the whole personal estate devolved on the executor, and if, after payment of the funeral expenses, testamentary charges, debts and legacies, there should be any surplus, it would vest in the executor beneficially. In equity, hbwever, while the rule was prima facie the same as at law, [19]*19yet, it was held in many cases, that the general rule at law should be controlled in equity in all cases where a necessary implication or strong presumption arose that the testator meant to give only the office of executor, and not the beneficial interest in the residue. 2 Wms. Executors, 1263, 1264, where the cases are. com piled. This rule remained unchanged in England until the year 1830. In all such cases the executor was considered as a trustee for the next of kin of the testator, the trust to be declared and enforced by a court of equity, the theory being that the English ecclesiastical courts had no jurisdiction over such trusts, or, as said in one of the cases, “but a lame jurisdiction.” Pamplin v. Green, 2 Cha. Cas. 95; Matthews v. Newby, 1 Vern. 133, 134. And in stating the origin and growth of the jurisdiction in equity, in engrafting a trust upon the legal estate devolved upon the executor, Lord Chancellor Hardwicke, in Southcot v. Watson, 3 Atk. 227, 228 (in 1745), said that, “ever since the case of Foster v. Munt, 1 Vern. 473, before Lord Chancellor Jefferies (in 1687), which underwent various fates, the doctrine established in this court has 'been that where a man makes a will and 'an executor, and gives him a legacy, he is to be considered as a trustee merely for the next of kin, upon an equity founded on the Statute of Distribution,” This doctrine of a court of equity in raising a trust in favor of the next of kin was introduced in order to overcome what was regarded as an unjust and inequitable result of allowing the executor to take the beneficial interest in the residue to the exclusion of the next of kin. In some of the early cases it was held that where the wife of the testator was made executrix, and there was a surplus or residue undisposed of, she would take beneficially, upon consideration alone of being wife. This was so held in the case of Ball v. Smith, 2 Vern. 675; .arid in the leading case of Farrington v. Knightly, 1 P. Wms. 544, 549, before Lord Chancellor Macclesfield. The chancellor, in stating his first impressions of that case, said: “An executor, from his name, [20]*20is but a trustee, he being to execute his testator’s will, and therefore called an executor. In the present case the testator is not to .be looked upon as dying intestate, but to have made the executor a trustee of the surplus; and this is the reason why the spiritual courts can not compel a distribution, because they can not enforce the execution of a trust. Indeed, in the case of a wife it has been held that where she is executrix and has a legacy, and there is no disposition of the surplus, she shall have it; but I do not hear any prcedents cited that go further.” This was said by the chancellor in giving his first irppressions of the case; but, upon further examination and consideration, he held, and produced several precedents to show, that the wife being the executrix made no difference, and that where she took a legacy under the will, she should be decreed to make distribution of the surplus among the next of kin. 1 P. Wms. 550, and the cases cited, and the note to that case by Mr. Cox. And in speaking of the reason of the rule, the chancellor said: “That as to the reason of the case, it was most plain, the making a person, executor ought not to amount to a gift of the testator’s personal estate; it was no more than making him a trustee, the very word executor importing, ex vi termini, that he was only appointed to execute the will, and to have nothing but the management of the personal estate.”
The question of the right of executors to appropriate to themselves the undisposed-of surplus or residue of the personal estate of their testators gave rise to much perplexing and expensive litigation, and the state of the law upon the subject became very unsatisfactory, and was frequently the subject of severe animadversion by the equity judges. See cases of Urquhart v. King, 7 Ves. 225, and Pratt v. Sladden, 14 Ves. 193, 197. And to correct what was conceded to be an unjust and unsatisfactory state of the law upon this subject in England, the Statute of 11 Geo. IV and 1 Wm. IV was passed. By that statute it was declared that any person [21]*21appointed an executor shall be deemed by the courts of equity to be a trustee for the person or persons (if any) who would be entitled to the estate under the Statute of Distributions, in respect of any residue not expressly disposed of, unless it shall appear by the will or codicil that the person so appointed executor was intended to take such residue beneficially.
The principle that obtained in the English law prior to the passage of the statute just referred to never had force or recognition in the jurisprudence of Maryland, and, consequently, it never had force or recognition as any part of the law of this District. Indeed, we think we are justified in stating that such principle never formed part of the American law; and hence Mr. Justice Story was well warranted in laying it down as clear that “in America the surplus is by law universally distributable among the next of kin, in the absence of all contrary expressions of intention by the testator.” 2 Sto. Eq. Jur., Sec. 1208.
The executor, as is well understood, derives his title as executor from the will of the testator, but he takes no beneficial interest in the undisposed-of surplus or residue of the personal estate, by mere implication or construction, as by the former English rule. It is true every executor is, in a certain sense and to a certain extent, a trustee for all persons interested in the preservation and distribution of the personal estate of the testator, and he is equally so in respect to the surplus or residue of the estate undisposed of by the will, as of any other portion of the estate. He takes the estate under the will for purposes of administration, and of distribution to those entitled; and while a court of equity has a long-established jurisdiction in all matters of trust, of account, of administration, and of construction, in the settlement of estates, yet such jurisdiction is not exclusive of the very ample jurisdiction conferred on the orphans’ courts of Maryland, and the special term of the Supreme Court of this District for orphans’ court business, by the Testamentary [22]*22Act of 1798, Ch. 101. That act embodies in its various provisions a testamentary and administrative system, intended to be complete in itself. It is by no means limited and restricted, in the general scope of jurisdiction conferred on the orphans’ court, to the limited powers and jurisdiction of the spiritual courts of England, as formerly exercised, in respect to testamentary matters. The title of the act plainly indicates its general scope and policy. The title is “ An act for amending and reducing into one system, the laws and regulations concerning last wills and testaments, the duties of executors, administrators and guardians, and the rights of orphans and other representatives of deceased persons.” In an act so comprehensive as that of 1798, intended to embrace the whole law of administration of decedent’s estates, if it had been the intention of the legislature to exclude the jurisdiction of the orphans’ court in respect to the surplus or residue of the personal estate of the deceased, undisposed of by his will, and to confide that jurisdiction exclusively to a court of equity, and thus, in such case, to divide the administration between the two tribunals, we should certainly find some provision in the statute relating to such an exception from the jurisdiction of the orphans’ court. But nothing of the kind appears in the act. The only provision to be found in the act that has reference to the right or interest of the executor in the residuary estate of the deceased, is found in Sec. 6, Subch. 9. By that section, if the executor be a residuary legatee, he may be excused from returning to the court an inventory or account, upon giving bond for the payment of all debts and claims against the estate, and for the payment of all legacies given by the will. But it is very plain that this provision contemplates the case of an express residuary bequest to the executor, and not a right to such residue or surplus undisposed of, arising alone by implication or construction of law.
An inference is sought to be drawn, and as showing that the orphans’ court was not intended to take cognizance [23]*23and make distribution of such residue or surplus, from the fact that in the Subch. 11, and the sections of that sub-chapter, providing for the distribution of an intestate’s .estate, the word “executor” does not appear. But that fact can furnish no material inference in support of the contention of the appellee.- There is no lack of provision in the act conferring power and jurisdiction upon the orphans’ court to make and enforce distribution of the residue' of a testator’s estate which has not, by any express terms of his will, been disposed of; the power and jurisdiction of that court being ample to superintend and direct full and complete administration of as well the estates of testators as those of intestates. By Sec. 1 of Subch. 15, the orphans’ court is instituted “for the purpose of taking the probate of wills, granting letters testamentary and of administration; directing the conduct and settling the accounts of executors and administrators, securing the rights of legatees, superintending the distribution of the estates of intestates, securing the rights of Orphans and legatees, and administering justice in all matters relative to the affairs of deceased persons, according to law.” And further, by Secs. 6 and 10 of Subch. 10, relating to the duties of executors and administrators, it is, by the first of these sections, provided, that it shall be the duty of an executor, upon the settlement of his account showing that all debts and claims are paid, to deliver up the estate in his hands to those entitled to receive it; and by the next of these sections, it is made the duty of an administrator, upon the settlement of his account, showing the debts and claims all to be paid, to deliver up and distribute the surplus or residue of the estate as therein directed. And by section 12 of Subch. 15, among other things, it is provided, that “The orphans’ court shall have full power, authority, and jurisdiction, to examine, hear, and decree upon, all accounts, claims, and demands, existing between-wards and their guardians, and between legatees, or persons entitled to any distributable part of an intestate’s estate, and [24]*24executors and administrators, and may enforce obedience to, and execution of, their decrees, in the same ample manner as the court of chancery may.”
These provisions of the statute are certainly ample to confer authority and jurisdiction upon the orphans’ court, or the special term of the Supreme Court exercising the jurisdiction of the orphans’ court, to direct and enforce the distribution of the undisposed-of residue of the personal estate of the testator, in this case; and we are clearly of opinion, that the executrix, the widow of the deceased, did not take, by any construction of the will, any beneficial right or estate in such undisposed-of residue, as distinguished from her title merely as executrix; and that such undisposed-of residue must be distributed to the next of kin of the testator.
2. The next question is that raised by the exception to the allowance of the commission to the executrix.
It is objected in the first place, that no allowance of commission should have been made, because the specific bequest of the city of Richmond bond, for $5,000, was bequeathed by way of compensation for all trouble and services to be rendered by the executrix in the administration of the estate; and in the second place, if such specific bequest was not intended as such compensation to the executrix, the rate of commission allowed was excessive and" unreasonable.
We are of opinion that neither of these objections can prevail. The bequest of the Richmond bond was to “my wife and executrix,” without other designation, but nothing to indicate that it was given by way of compensation, and to be taken in lieu of commissions. The descriptive words used to designate the legatee were entirely natural and proper, and were clearly intended as mere descriptio personae of the legatee; and if the wife had failed to obtain letters testamentary, she would, doubtless, have taken the legacy, notwithstanding her failure to become executrix by qualification. This legacy, therefore, can not be treated as compensation in the place and stead of the commission allowed [25]*25by law. The terms of the bequest will not bear any such construction.
Nor can the objection that the rate of commission is excessive and unreasonable be available to the appellants on this appeal. The statute, by its terms, declares that the commission to be allowed to the executor or administrator shall be, at the discretion of the court, not under 5 per cent, nor exceeding 10 per cent, on the amount of the inventory or inventories, excluding what is lost or hath perished.” Act 1798, Ch. 101, Subch. 10, Sec. 2. This provision of the statute, having fixed a minimum and a maximum rate of commission to be allowed to executors and administrators, and vested a discretion in the orphans’ court, restricted only by those limits, an allowance by that court, or the court exercising its powers and jurisdiction, within those limits, is conclusive, and therefore not the subject of review in an appellate court. This has been uniformly held by the Court of Appeals of Maryland, in cases where this question on this statute has arisen. Wilson v. Wilson, 3 G. & J. 20; Gwynn v. Dorsey, 4 G. & J. 453; McPherson v. Israel, 5 G. & J. 60; Thomas v. Frederick Co. School, 9 G. & J. 115. The court below was therefore clearly right in overruling the exception to the commission allowed the executrix.
■ 3. Then, as to the exceptions to the allowance for the price paid for the cemetery lot in Rock Creek Cemetery, at this city, and the price paid for the monument placed oyer the grave of the deceased. The statute provides for the allowance for funeral expenses of the deceased, at the discretion of the court, not to exceed $300. In this case $268.50 were paid the undertaker as funeral expenses. The allowance made of $317 for the lot in the cemetery, and $575 for the monument placed on the lot, are charged and allowed as distinct claims for expenditure incurred for the interment of the deceased. If this were a case where creditors were prejudiced by the allowance of these expenditures, or even lega[26]*26tees whose legacies were lessened by the allowance, the exceptions might receive different consideration.
But this is not such case. The case- here is one where the deceased has left a considerable estate, but no children or descendants; and his estate goes to his surviving wife and. certain collateral relations. He occupied in life a respectable position in society, and was entitled at his death to such funeral obsequies and respectable interment as accorded with his position and circumstances in life. He was entitled to be buried in the cemetery, and to have his grave marked and distinguished with such monument as is customary with persons of his position and estate. To inter his body in a cemetery, the usual place of interment, it was necessary that a lot should have been purchased, and improved, and distinguished by a suitable monument, to make it conform to its environment, at least to a certain degree. The expenses incurred for these purposes were not strictly funeral expenses; certainly not within the sense and meaning of the provision of the statute, which limits funeral .expenses to an amount not to exceed three hundred dollars. It does not appear that there was any extravagance in the expenditure for these objects, and we can not say that there was error in allowing credits for the amounts claimed in respect to them by the executrix. ,It would seem to be an ungracious act on the part of the exceptants, the relatives and recipients of the bounty of the deceased, to deny and object to the right of the widow and executrix of the testator to place over the grave of the latter a lasting memorial structure, at the expense of his own estate, simply because it may lessen to a small extent the amount of distribution that they would otherwise receive. If it were shown that such expenditure was extravagant, and for inappropriate objects, quite another question would be presented; but there is nothing to show any such state of case. •
4. And lastly, with respect to the exception to the sale by the executrix of the $1,500 United States bonds, we think [27]*27there is nothing in the case to support the exception. If the bonds had been of denominations capable of specific delivery, and the legatees had desired such delivery, it would have been the duty of the executrix to have delivered the bonds. But it appears the legatees were content to have the bonds sold and to receive the money therefor, and they did receive the money and receipted to the executrix for it. They can not now be heard to urge an objection to the sale.
It follows, from what we have said, that the order of the court below, of the 11th of October, 1898, approving and passing the account of the executrix, must be reversed, and the cause be remanded, that the account be re-stated in accordance with the principles of the foregoing opinion; and it is so ordered.
Order reversed and cause remanded.