VAN ORSDEL, Associate Justice.
This is an appeal from an order of the District Court, sitting as probate court, for the sale of ten shares of stock and the ap[985]*985plication of the proceeds of such sale to the payment of debts of an estate.
At the outset we áre confronted with a motion to dismiss this appeal, on the ground that the transcript of record was not filed in this court within the sixty-day period prescribed by rule 15. The instant appeal was perfected on August 11, 1936, and the time limit fixed by the rule expired on October 21, 1936. Appellant filed her transcript of record on November 14, 1936. Appellee moved to dismiss on November 17, 1936, consideration of the motion being postponed to the hearing on the merits.
Appellee points out that vre have consistently granted motions to dismiss appeals where the transcript has been filed after the time limit prescribed by our rules. McCrane v. McGann, 2 App.D.C. 221; Dist. of Columbia v. Humphries, 11 App.D.C. 68, 70; Dist. of Columbia v. Roth, 18 App.D.C. 547; Gros v. Norment, 30 App.D.C. 574, 575.
Appellant urges that our holding on this point is contrary to that of the Supreme Court and the lower federal courts in enforcing similar rules. The federal rule is that a motion to dismiss on the ground that the transcript has not been filed within the prescribed time comes too late when the transcript has actually been filed. Bingham v. Morris, 7 Cranch, 99, 3 L.Ed. 281; Ow-ings v. Tiernan, 10 Pet. 24, 9 L.Ed. 333; Sparrow v. Strong, 3 Wall. 97, 103, 18 L.Ed. 49; Southern Lumber Co. v. Ward, 208 U.S. 126, 28 S.Ct. 239, 52 L.Ed. 420; Alten-berg v. Grant (C.C.A.6th), 83 F. 980; The Kawailani (C.C.A.9th) 128 F. 879.
After due consideration, we conclude that the federal rule operates more effectively to accomplish the desired result. Under that rule, in order for an appellee to avail himself of the fact that appellant has not filed his transcript within the time prescribed, he must file a motion to docket and dismiss before such transcript is actually filed; if appellee waits until the transcript is filed, even though it be filed after the time prescribed, a motion to dismiss on this ground comes too late. This tends to insure diligence on the part of an appellee, and to expedite the determination of appeals.
We are convinced that notwithstanding the decisions of this court in the past to the contrary, we should adopt the rule followed by the federal courts, and the same shall hereafter be regarded as the rule of practice on this point. The motion to dismiss in this case is accordingly denied.
Jennie T. Davis, a resident of the District of Columbia, died on September 14th, 1934, leaving a last will and testament dated June 4th, 1928, with a codicil attached thereto dated March 31st, 1934. The will was admitted to probate and record January 9th, 1935. The executor named therein having renounced, appellee Mildred Saunders was appointed administratrix c. t. a.
It appears that the testatrix died owning real estate in the District of Columbia assessed at $5,451; three farms in Pennsylvania valued in the petition for probate at $13,800; ten shares of American Telegraph & Telephone stock worth $1,100; personal effects, appraised at $600; and $100 cash. Debts totaled approximately $3,-700.
At the time of the institution of the present suit the administratrix had sold the personal effects, appraised at $1,037.50, for approximately $1,200, and had applied this sum to the payment of debts against the estate, except the sum of approximately $585; which she still held unexpended. In her petition in the court below she alleged that the debts exceeded the balance on hand, and the American Telegraph & Telephone stock is the only personalty left belonging to the estate. Of the ten shares, four are pledged as collateral on a $200 note of the testatrix, which is still unpaid. The administratrix asked authorization to sell the ten shares, pay off the $200 note, and apply the balance —approximately $1,400 — to the payment of debts and expenses.
Appellant, Bertha B. Vogel, contested the authority of the administratrix to sell the American Telegraph & Telephone stock and to apply the proceeds to the payment of the debts against the estate, for the reason that she was, by the terms of the will, specifically given “fourteen shares of American Telegraph and Telephone stock.” From an order of the court below directing the sale of the ten shares of stock, and the application of the proceeds thereof to the payment of debts of the estate, this appeal was taken.
The third paragraph of the will reads as follows: “I bequeath to my friend Bertha B. Vogel, of the District of Columbia, fourteen shares of American Telegraph and Telephone stock, provided she survives me.” The principal question is whether or not this constitutes a specific legacy. It is contended by appellee, and it was held by the court below, that it is a general legacy.
[986]*986The primary subject of consideration is the intent of the testatrix with reference to this legacy, as it appears from the four corners of the will. Douglass v. Douglass, 13 App.D.C. 21, 28. While it appears to be true that the courts will usually lean toward construing a legacy as general, rather than specific (Kenaday v. Sinnotf, 179 U.S. 606, 618 et seq., 21 S.Ct. 233, 238, 45 L.Ed. 339), yet if it clearly appears that the testator’s intention is that the legacy shall be specific, such intention must be given effect.
An examination of the will, and especially of the codicil thereto, clearly indicates that appellant was the chief object of the bounty of the testatrix. We think that the will evinces a clear intention on the part of the testatrix to make special provision for the maintenance and comfort of the appellant In item 4 appellant is given a life annuity, payable quarterly; in item 8 she is given one-eighth of the residue; in the codicil she is further provided for by a life estate in testatrix’ farm known as ‘‘Londonderry Place.” Appellant is referred to in the will as “my friend” and in the codicil as “my dear friend and companion.” In addition to the foregoing, appellant is given fourteen shares of American Telegraph & Telephone stock by item 3, here involved.
The reason for the rule above mentioned, that the courts are generally averse to construing legacies to be specific, is stated in Kenaday v. Sinnott, supra, in a quotation from Tifft v. Porter, 8 N.Y. 516, as follows : “The inclination of the courts to hold legacies to be general, rather than specific, and one which the rule is based that to make) a legacy specific, its terms must clearly require such a construction, rests upon solid grounds. The presumption is stronger that a testator intends some benefit to a legatee, than that he intends a benefit only upon the collateral condition that he shall remain till death, owner of the property bequeathed. The motives which ordinarily determine men in selecting legatees, are feelings of regard, and the presumption of course is that their feelings continue and they are looked upon as likely to continue.
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VAN ORSDEL, Associate Justice.
This is an appeal from an order of the District Court, sitting as probate court, for the sale of ten shares of stock and the ap[985]*985plication of the proceeds of such sale to the payment of debts of an estate.
At the outset we áre confronted with a motion to dismiss this appeal, on the ground that the transcript of record was not filed in this court within the sixty-day period prescribed by rule 15. The instant appeal was perfected on August 11, 1936, and the time limit fixed by the rule expired on October 21, 1936. Appellant filed her transcript of record on November 14, 1936. Appellee moved to dismiss on November 17, 1936, consideration of the motion being postponed to the hearing on the merits.
Appellee points out that vre have consistently granted motions to dismiss appeals where the transcript has been filed after the time limit prescribed by our rules. McCrane v. McGann, 2 App.D.C. 221; Dist. of Columbia v. Humphries, 11 App.D.C. 68, 70; Dist. of Columbia v. Roth, 18 App.D.C. 547; Gros v. Norment, 30 App.D.C. 574, 575.
Appellant urges that our holding on this point is contrary to that of the Supreme Court and the lower federal courts in enforcing similar rules. The federal rule is that a motion to dismiss on the ground that the transcript has not been filed within the prescribed time comes too late when the transcript has actually been filed. Bingham v. Morris, 7 Cranch, 99, 3 L.Ed. 281; Ow-ings v. Tiernan, 10 Pet. 24, 9 L.Ed. 333; Sparrow v. Strong, 3 Wall. 97, 103, 18 L.Ed. 49; Southern Lumber Co. v. Ward, 208 U.S. 126, 28 S.Ct. 239, 52 L.Ed. 420; Alten-berg v. Grant (C.C.A.6th), 83 F. 980; The Kawailani (C.C.A.9th) 128 F. 879.
After due consideration, we conclude that the federal rule operates more effectively to accomplish the desired result. Under that rule, in order for an appellee to avail himself of the fact that appellant has not filed his transcript within the time prescribed, he must file a motion to docket and dismiss before such transcript is actually filed; if appellee waits until the transcript is filed, even though it be filed after the time prescribed, a motion to dismiss on this ground comes too late. This tends to insure diligence on the part of an appellee, and to expedite the determination of appeals.
We are convinced that notwithstanding the decisions of this court in the past to the contrary, we should adopt the rule followed by the federal courts, and the same shall hereafter be regarded as the rule of practice on this point. The motion to dismiss in this case is accordingly denied.
Jennie T. Davis, a resident of the District of Columbia, died on September 14th, 1934, leaving a last will and testament dated June 4th, 1928, with a codicil attached thereto dated March 31st, 1934. The will was admitted to probate and record January 9th, 1935. The executor named therein having renounced, appellee Mildred Saunders was appointed administratrix c. t. a.
It appears that the testatrix died owning real estate in the District of Columbia assessed at $5,451; three farms in Pennsylvania valued in the petition for probate at $13,800; ten shares of American Telegraph & Telephone stock worth $1,100; personal effects, appraised at $600; and $100 cash. Debts totaled approximately $3,-700.
At the time of the institution of the present suit the administratrix had sold the personal effects, appraised at $1,037.50, for approximately $1,200, and had applied this sum to the payment of debts against the estate, except the sum of approximately $585; which she still held unexpended. In her petition in the court below she alleged that the debts exceeded the balance on hand, and the American Telegraph & Telephone stock is the only personalty left belonging to the estate. Of the ten shares, four are pledged as collateral on a $200 note of the testatrix, which is still unpaid. The administratrix asked authorization to sell the ten shares, pay off the $200 note, and apply the balance —approximately $1,400 — to the payment of debts and expenses.
Appellant, Bertha B. Vogel, contested the authority of the administratrix to sell the American Telegraph & Telephone stock and to apply the proceeds to the payment of the debts against the estate, for the reason that she was, by the terms of the will, specifically given “fourteen shares of American Telegraph and Telephone stock.” From an order of the court below directing the sale of the ten shares of stock, and the application of the proceeds thereof to the payment of debts of the estate, this appeal was taken.
The third paragraph of the will reads as follows: “I bequeath to my friend Bertha B. Vogel, of the District of Columbia, fourteen shares of American Telegraph and Telephone stock, provided she survives me.” The principal question is whether or not this constitutes a specific legacy. It is contended by appellee, and it was held by the court below, that it is a general legacy.
[986]*986The primary subject of consideration is the intent of the testatrix with reference to this legacy, as it appears from the four corners of the will. Douglass v. Douglass, 13 App.D.C. 21, 28. While it appears to be true that the courts will usually lean toward construing a legacy as general, rather than specific (Kenaday v. Sinnotf, 179 U.S. 606, 618 et seq., 21 S.Ct. 233, 238, 45 L.Ed. 339), yet if it clearly appears that the testator’s intention is that the legacy shall be specific, such intention must be given effect.
An examination of the will, and especially of the codicil thereto, clearly indicates that appellant was the chief object of the bounty of the testatrix. We think that the will evinces a clear intention on the part of the testatrix to make special provision for the maintenance and comfort of the appellant In item 4 appellant is given a life annuity, payable quarterly; in item 8 she is given one-eighth of the residue; in the codicil she is further provided for by a life estate in testatrix’ farm known as ‘‘Londonderry Place.” Appellant is referred to in the will as “my friend” and in the codicil as “my dear friend and companion.” In addition to the foregoing, appellant is given fourteen shares of American Telegraph & Telephone stock by item 3, here involved.
The reason for the rule above mentioned, that the courts are generally averse to construing legacies to be specific, is stated in Kenaday v. Sinnott, supra, in a quotation from Tifft v. Porter, 8 N.Y. 516, as follows : “The inclination of the courts to hold legacies to be general, rather than specific, and one which the rule is based that to make) a legacy specific, its terms must clearly require such a construction, rests upon solid grounds. The presumption is stronger that a testator intends some benefit to a legatee, than that he intends a benefit only upon the collateral condition that he shall remain till death, owner of the property bequeathed. The motives which ordinarily determine men in selecting legatees, are feelings of regard, and the presumption of course is that their feelings continue and they are looked upon as likely to continue. An intention of benefit being once expressed, to make its taking effect turn upon the contingency of the condition of the testator’s property being unchanged, instead of upon the continuance of the same feelings which in the first instance prompted the selection of the legatee, requires, as it ought, clear language to convey that intention.”
The reason for applying the rule is absent in this instance. Here provision for appellant does not depend solely upon the legacy of fourteen shares of American Telegraph & Telephone stock. Appellant is well provided for during her lifetime by the annuity and the life estate in “Londonderry Place.”' Suppose appellant had been bequeathed only fourteen shares of American Telegraph & Telephone stock under the will, and it was found-upon the death of the testator that she owned no American Telegraph &' Telephone stock at all. In that case the courts would be loathe to construe the legacy as specific, and hold that it had been adeemed. But that situation does not exist here. Testatrix made careful and generous provision for appellant, exclusive of the legacy in question. We think that it was testatrix’ intention that appellant should, in addition, have, specifically, fourteen shares of American Telegraph & Telephone stock owned by her at the time of her death, or such part of that number of shares as testatrix had not disposed of during her lifetime.
We think the bequest in question meets the requirements of a specific legacy. First, the property bequeathed is separated and distinguished from the other property of the testatrix. Indeed, it appears that the testatrix owned no stock other than American Telegraph & Telephone stock. Second, the testatrix at her death owned ten shares of the stock bequeathed.
' Appellee urges that the absence of such words as “my stock” or “the stock now owned by me” indicates that testatrix did not intend to bequeath these shares specifically. The lack of such words is not conclusive. In-Baker v. Baker, 319 Ill. 320, 150 N.E. 284, 286, 42 A.L.R. 1514, 1518, the Supreme Court of Illinois said: “It is immaterial whether the property given is described as being part of the testator’s estate at the time of making the will,' but to be a specific legacy it is essential that the property be owned by the testator at the time of his death, and that it be so described that it can be distinguished from the rest of his estate.”
Appellee takes the position that this is a general legacy. Let us suppose that the testatrix had owned no American Telegraph & Telephone stock at all at the time of her [987]*987death. If appellee’s contention as to the nature of the legacy be correct, it must have been testatrix’ intention that in such case, notwithstanding the other adequate provisions for appellant in the will, the executor was to go into the market and purchase fourteen shares of this stock at the then market price, although the value of the stock may have increased greatly since the execution of the will and although such purchase might exhaust the residue and defeat the' residuary legacies. Obviously, the testatrix had no such intention. We think it clear that she intended a specific legacy of fourteen shares.
It does not appear precisely how many shares of American Telegraph & Telephone stock, if any, were owned by testatrix when the will was executed. All that definitely appears is that upon her death she owned ten shares of this stock, four of which had been put up as collateral on a loan. Ib is clear to us that the testatrix, in making this will, was disposing of all her property, and it would seem to be a fair assumption that at the time the will was executed she owned at least fourteen shares of American Telegraph & Telephone stock. Only ten shares being owned by her at the time of her death, the legacy was adeemed to the extent of four shares.
While we have carefully considered the numerous cases relied upon by appellee, we do not deem it necessary to discuss them, since the nature of a legacy must ultimately be determined by the intent of the testator, as gathered from the whole will, and in view of the intent of the testatrix in the instant case we have determined this legacy to be specific.
Coming to the question of the liability of the specific bequest for the payment of the debts, we find that testatrix, in item 6 of the will, provided as follows: "All the rest residue and remainder of my estate of whatsoever kind and wheresoever located of which I may die seized and possessed or to which I may be entitled at my death, shall be divided into eight equal parts; and, in that event, I bequeath a one-eighth thereof to each of the following:” Bertha B. Vogel, the appellant herein, is the fourth of eight legatees named in this paragraph.
It is clear from the record that there is sufficient in the residue of the estate to more than pay all the debts and charges.
General legacies and residuary legacies abate before specific legacies. The general rule for the application of assets of a decedent to the payment of debts is stated in Adams Equity, 8th Ed., p. 262, as follows: “The prima facie order of application is as follows: 1. Personal estate not specifically bequeathed; 2. Real estate devised for payment of debts; 3. Real estate descended; 4. Personal .and real estate specifically bequeathed or devised, subject to a charge of debts by will; 5. Personal and real estate specifically bequeathed or devised, subject to a charge of debts by mortgage, to the extent of such mortgage; 6. Personal and real estate specifically given, and not charged with debts.”
Appellee insists that the personalty of a decedent must be exhausted to pay debts, before the realty may be lookied to. As a general proposition, with reference to the estates of intestates, this is true. However, it is settled law that where bequests are made antecedently to the residuary clause, and no express trust is created to pay them, and the residuary clause blends realty and personalty together into one fund, both the realty and personalty so embraced in the residuary clause are chargeable with the payment of the debts and legacies. In Lewis v. Darling, 16 How. 1, 10, 14 L.Ed. 819, the Supreme Court said: “The rule in such a case is, that where a testator gives several legacies, and then, without creating an express trust to pay them makes a general residuary disposition of the whole estate, blending the realty and personalty together in one fund, the real estate will be charged with legacies, for in such a case, the ‘residue’ can only mean what remains after satisfying the previous gifts. Hill on Trustees, 508. Such is the settled law both in England and in the United States, though cases do not often occur for its application. Where one does occur, a legatee may sue to recover the legacy, without distinguishing in his bill the estate into the two kinds of realty and personalty, because it is the manifest intention of the testator that both should be charged with the payment of the money legacies. Nor does this conflict at all with that principle of equity jurisprudence, declaring that generally, the personal estate of the testator is the first fund for the payment of debts and legacies.”
And in Baker v. Baker, supra, the Supreme Court of Illinois said:
“The general rule is that the personal property constitutes the natural and primary fund for the payment of the expenses of [988]*988administration and the debts of the estate, but if is also well established that when the intention of the testator to charge his real estate with the payment of such obligations is clear, either from the express words of the will or by necessary implication from the language used, debts and other claims will be held to be a charge upon the real estate. If a man dies intestate owing debts, payment will be made in the regular order pointed out by the statute, commencing with the personalty; but if he dies testate and devises and bequeaths his whole property specifically, both real and personal, it is an indication that the recipients of his bounty shall have the estate in the proportion designated in the will. Where, therefore, the testator makes various specific gifts of property, and large amounts of debt, which perhaps were not contemplated, are proven against his estate, it is not reasonable to assume that it was intended by him that the real estate should be entirely exonerated from his debts by the personal property. The reasonable construction to give the will is one that will carry out the plan of the testator in the distribution of his property as nearly as possible, so that there will be no disappointment to those who were given personal property, when from the will it appears that (they were, equally with those who received devises of real estate, the subjects of the testator’s bounty.”
It follows that the legacy here involved cannot be subjected to the payment of debts until the residue of the estate has been exhausted. In Nash v. Ober, 2 App.D.C. 304, 308, Mr. Justice Shepard, speaking for the court, said: “Specific legacies are not liable to abatement with general legacies, nor subject to contribution with them to pay debts. Necessarily, then, the residuary bequest must always be exhausted before the specific legacies can be called on to contribute to the payment of debts. Though called a residuary legacy general-ally, it can hardly be called a legacy in the ordinary sense of the term; for the words ‘rest’ and ‘residue’ can only apply to that which remains after the payment of debts, legacies proper and legal charges.”
We have no difficulty in reaching the conclusion that the legacy in question is a specific one; that the debts must be paid from the residue, which is ample for the purpose; and that appellant is entitled to the ten shares of American Telegraph & Telephone stock, together with whatever dividends have accrued thereon since the death of the testatrix.
The order of the lower court for the sale of these shares is accordingly reversed, with costs.