Wilde J.
delivered the opinion of the Court. [After stating the nature and subject of the action.] It is agreed, that at the time of making the will (January 30th, 1818) the testator was the owner of the exact amount of stock bequeathed to the school district, in the several corporations named in the will ; and that afterwards, on the 13th day of November, 1823, he sold and transferred his shares in the Beverly bank ; so that the general question is, whether this sale was an ademption of the legacy pro tanto.
The case has been very fully and ably argued, and many cases have been cited, some of which appear to clash, though most of them, we think, may on close examination be satisfac torily reconciled. Perhaps no two cases can be found ex actly similar, and small circumstances may lead to decisions apparently contradictory. I shall not go over all these cases, for in questions relating to the construction of wills, the mind is often perplexed and misled, rather than instructed, by a multiplicity of cases ; especially when the question is as to the intention of the testator. The first question to be considered is, whether the legacy demanded is specific or general. If the object of the testator was to give the identical stock specified in the will, then the sale of a part would be proof of animus revocandi, and would amount to an ademption of the legacy pro tanto.
The general rule is, that if stock be bequeathed, and the testator owns the stock described, at the time of making the will, the bequest must be considered specific. Selwood v. Mildmay, 3 Ves. 310.
There is a strong case in Atkyns in support of this rule, which has a close resemblance to the case under consideration. in that case (Jeffreys v. Jeffreys, 3 Atk. 120) tae testator had given to his daughters 27021. 3s. capital stock in the bank of England ; and 20001. capital stock in the English East India Company. At the time of making his will he had the exact amount of bank and India stock bequeath ed to his daughters, but before his death he sold out a part oi [53]*53ms bank stock (702Z. 3s.), and it was held that this sale of the bank stock was an ademption pro tanto. The master of the rolls makes a distinction, which seems very just, between a bequest of goods perishable in their nature, and that of durable property, as stock and the like. So also the circumstance, that the stock bequeathed and the stock the testator owned at the time exactly agreed, is much relied on as strong proof of the specific quality of the legacy.
In the case of Ashburner v. M'Guire, 2 Bro. Ch. Rep. 108, the words of the bequest were, “ I bequeath to W. B. my capital stock of 1000Z. m the India Company’s stock.” The testator, at the time of making his will, was possessed of 1000Z. East India stock, and no more. This stock he sold out before his death, and Lord Thurloio held that the legacy was specific and was adeemed by the sale.
In the case of Badrick v. Stevens, 3 Bro. Ch. R. 431, the testatrix bequeathed several sums of money to be paid out of a bond debt then due. The obligor in the bond paid the debt in the lifetime of the testatrix, and it was held that the legacies were thereby adeemed.
So in the case of Innes v. Johnson, 4 Ves. 569, the bequest was to the testator’s sister, of the full interest of 300Z. upon bond during her life; and after her decease the interest on the said bond was given to her daughter. The testator had, at the time of making his will, a bond against the hus band and son of the legatee, for 300Z., also one for 200Z., and divers other bonds against other persons. It was contended that this was a legacy of money, with reference to a particular fund, or a demonstrative legacy. But the master of the rolls held it a specific legacy of the interest on the bond for 300Z.
In the case of Fryer v. Morris, 9 Ves. 360, E. I. bequeathed to C. P. such money as her executors should, after her death, receive on a note for 400Z. And a short time before her death the note was paid, and the amount was by her deposited with a banker with whom she had no other money, where it remained at her death, except 10Z. which she drew out. Sir William Grant held that the payment of the note was an ademption of the legacy.
[54]*54These are strong cases to show that the legacy in quest-Qn Spec¡pc an¿ was adeemed as to the shares in the Beverly bank. But there are other cases, which seem to have been decided upon different principles.
In Pawlet's Case, T. Raym. 335, where the testator had given to his niece 500Z. in the hands of his sister, the Lady Cholmeley, and due to him on her bond, it was held that the legacy was not adeemed, although the Lady Cholmeley had paid the bond during the lifetime of the testator, on the ground that it was not a specific legacy. So Lord Camden held, in the case of the Att. Gen. v. Parkin, Ambl. 566, that if a sum of money be given due on a bond, the legacy is not specific. But this decision is denied to be law by Lord Thurlow, after very full deliberation, in the case of Ashburner v. M‘Guire, already cited. It is however remarked by the lord chancellor in the case of Coleman v. Coleman, 2 Ves. jun. 639, (and the master of the rolls in the case of Chaworth v. Beech, 4 Ves. 556, seems to be of the same opinion,) that Lord Camden proceeded on the supposition, that the testator did not mean to refer to any particular bond or security, but that he intended to give the sum specified in the will out of any bond or security he might happen to have. And if so, it is said the case of the Att. Gen. v. Parkin may be sustained ; otherwise it must be considered as overruled by the case of Ashburner v. M'Guire. The master of the rolls refers also to the case of Lord Castleton and Lord Fanshaw, 1 Eq. Cas. Abr. 298, in support of the case of Ashburner v. M'Guire, which he says is an authority conclusive on the subject. It must, however, be admitted, that the distinctions which have been made, in some of the cases, between a specific legacy, and a pecuniary legacy payable out of a particular fund, are extremely nice.
In the case of Rider v. Wager, 2 P. Wms. 328, the question arose on the will of admiral Littleton, who among other things gave to the second son of Sir Harcourt Masters 500Z., part of the money owing to him by Sir Harcourt ; and the residue of the debt was given to his younger children. The legacy of 500Z. was considered as a pecuniary or demonstrative legacy, while that of the residuum to the [55]*55younger children was held to be specific. This case appears to have been decided upon a distinction similar to the one taken by Lord Camden, between a legacy of a debt generally, and that of a certain sum due from a- particular person, a distinction which Lord Thurlow thinks too slender for the sasis of a decision.
In the case of Orme v. Smith, 1 Eq. Ca. Abr. 302, the words of the will are, “ I give and devise to A. my good and only uncle, the sum of 500Z., that is to say, that bond and judgment he gave me for 400Z. and 100Z. in money.” The uncle some time after sold an estate and paid off 320Z. and took up the bond and gave a new bond for the remaining 80Z., and some time after the testator died.
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Wilde J.
delivered the opinion of the Court. [After stating the nature and subject of the action.] It is agreed, that at the time of making the will (January 30th, 1818) the testator was the owner of the exact amount of stock bequeathed to the school district, in the several corporations named in the will ; and that afterwards, on the 13th day of November, 1823, he sold and transferred his shares in the Beverly bank ; so that the general question is, whether this sale was an ademption of the legacy pro tanto.
The case has been very fully and ably argued, and many cases have been cited, some of which appear to clash, though most of them, we think, may on close examination be satisfac torily reconciled. Perhaps no two cases can be found ex actly similar, and small circumstances may lead to decisions apparently contradictory. I shall not go over all these cases, for in questions relating to the construction of wills, the mind is often perplexed and misled, rather than instructed, by a multiplicity of cases ; especially when the question is as to the intention of the testator. The first question to be considered is, whether the legacy demanded is specific or general. If the object of the testator was to give the identical stock specified in the will, then the sale of a part would be proof of animus revocandi, and would amount to an ademption of the legacy pro tanto.
The general rule is, that if stock be bequeathed, and the testator owns the stock described, at the time of making the will, the bequest must be considered specific. Selwood v. Mildmay, 3 Ves. 310.
There is a strong case in Atkyns in support of this rule, which has a close resemblance to the case under consideration. in that case (Jeffreys v. Jeffreys, 3 Atk. 120) tae testator had given to his daughters 27021. 3s. capital stock in the bank of England ; and 20001. capital stock in the English East India Company. At the time of making his will he had the exact amount of bank and India stock bequeath ed to his daughters, but before his death he sold out a part oi [53]*53ms bank stock (702Z. 3s.), and it was held that this sale of the bank stock was an ademption pro tanto. The master of the rolls makes a distinction, which seems very just, between a bequest of goods perishable in their nature, and that of durable property, as stock and the like. So also the circumstance, that the stock bequeathed and the stock the testator owned at the time exactly agreed, is much relied on as strong proof of the specific quality of the legacy.
In the case of Ashburner v. M'Guire, 2 Bro. Ch. Rep. 108, the words of the bequest were, “ I bequeath to W. B. my capital stock of 1000Z. m the India Company’s stock.” The testator, at the time of making his will, was possessed of 1000Z. East India stock, and no more. This stock he sold out before his death, and Lord Thurloio held that the legacy was specific and was adeemed by the sale.
In the case of Badrick v. Stevens, 3 Bro. Ch. R. 431, the testatrix bequeathed several sums of money to be paid out of a bond debt then due. The obligor in the bond paid the debt in the lifetime of the testatrix, and it was held that the legacies were thereby adeemed.
So in the case of Innes v. Johnson, 4 Ves. 569, the bequest was to the testator’s sister, of the full interest of 300Z. upon bond during her life; and after her decease the interest on the said bond was given to her daughter. The testator had, at the time of making his will, a bond against the hus band and son of the legatee, for 300Z., also one for 200Z., and divers other bonds against other persons. It was contended that this was a legacy of money, with reference to a particular fund, or a demonstrative legacy. But the master of the rolls held it a specific legacy of the interest on the bond for 300Z.
In the case of Fryer v. Morris, 9 Ves. 360, E. I. bequeathed to C. P. such money as her executors should, after her death, receive on a note for 400Z. And a short time before her death the note was paid, and the amount was by her deposited with a banker with whom she had no other money, where it remained at her death, except 10Z. which she drew out. Sir William Grant held that the payment of the note was an ademption of the legacy.
[54]*54These are strong cases to show that the legacy in quest-Qn Spec¡pc an¿ was adeemed as to the shares in the Beverly bank. But there are other cases, which seem to have been decided upon different principles.
In Pawlet's Case, T. Raym. 335, where the testator had given to his niece 500Z. in the hands of his sister, the Lady Cholmeley, and due to him on her bond, it was held that the legacy was not adeemed, although the Lady Cholmeley had paid the bond during the lifetime of the testator, on the ground that it was not a specific legacy. So Lord Camden held, in the case of the Att. Gen. v. Parkin, Ambl. 566, that if a sum of money be given due on a bond, the legacy is not specific. But this decision is denied to be law by Lord Thurlow, after very full deliberation, in the case of Ashburner v. M‘Guire, already cited. It is however remarked by the lord chancellor in the case of Coleman v. Coleman, 2 Ves. jun. 639, (and the master of the rolls in the case of Chaworth v. Beech, 4 Ves. 556, seems to be of the same opinion,) that Lord Camden proceeded on the supposition, that the testator did not mean to refer to any particular bond or security, but that he intended to give the sum specified in the will out of any bond or security he might happen to have. And if so, it is said the case of the Att. Gen. v. Parkin may be sustained ; otherwise it must be considered as overruled by the case of Ashburner v. M'Guire. The master of the rolls refers also to the case of Lord Castleton and Lord Fanshaw, 1 Eq. Cas. Abr. 298, in support of the case of Ashburner v. M'Guire, which he says is an authority conclusive on the subject. It must, however, be admitted, that the distinctions which have been made, in some of the cases, between a specific legacy, and a pecuniary legacy payable out of a particular fund, are extremely nice.
In the case of Rider v. Wager, 2 P. Wms. 328, the question arose on the will of admiral Littleton, who among other things gave to the second son of Sir Harcourt Masters 500Z., part of the money owing to him by Sir Harcourt ; and the residue of the debt was given to his younger children. The legacy of 500Z. was considered as a pecuniary or demonstrative legacy, while that of the residuum to the [55]*55younger children was held to be specific. This case appears to have been decided upon a distinction similar to the one taken by Lord Camden, between a legacy of a debt generally, and that of a certain sum due from a- particular person, a distinction which Lord Thurlow thinks too slender for the sasis of a decision.
In the case of Orme v. Smith, 1 Eq. Ca. Abr. 302, the words of the will are, “ I give and devise to A. my good and only uncle, the sum of 500Z., that is to say, that bond and judgment he gave me for 400Z. and 100Z. in money.” The uncle some time after sold an estate and paid off 320Z. and took up the bond and gave a new bond for the remaining 80Z., and some time after the testator died. The uncle brought his bill for the legacy of 500Z., and the lord keeper decreed that the bond for the 80Z. should be delivered up and the residue of the legacy should be paid. The counsel for the plaintiff laid hold of the distinction between voluntary and compulsory payments, which has long since been exploded. But whether the court went upon that ground, or upon the authority of Pawlefs case, does not distinctly appear. This case however and Pawlefs case are both relied on in the case of Ford v. Fleming, 2 P. Wms. 470. In that case A. by her will gave her granddaughter Mary Ford 40Z. out of a debt due to the testatrix from J. S. for rent; and the residue of the rent due was given to her grandson. After making the will the testatrix sued for these arrears of rent and received them. And it was held, that this was no ademption of the legacy, because the testatrix’s suing for the rent might have been occasioned by her apprehension that the debt was in danger. It was said by counsel, arguendo, that this legacy being 40Z., could not be called a specific legacy, but was a gift of so much money, and that the rent was referred to as a fund for the payment of the legacy. And unless this case and Pawlefs case, and that of Orme v. Smith, can be sustained on this ground, I think they are manifestly opposed to very many later authorities.
The case of Coleman v. Coleman, 2 Ves. jun. 639, was decided on peculiar circumstances. In that case the testator gave the interest of a particular bill of exchange to his [56]*56wife for life, and directed that after her death the bill should be sold, and the proceeds of sale divided among certain persons named in the will. It appeared that this bill was the bulk of the testator’s fortune. It was paid to the testator after he had made his will, in the usual course in which the company paid such bills in rotation ; and it was held, that the legacy was not thereby adeemed. But this case was decided on the manifest intention of the testator, and not on the distinction between specific and pecuniary legacies.
Whether these, and other cases, can be fully reconciled or not, they certainly all agree as to one point, namely, that when the question is, whether a legacy is specific or pecunia ry, it must be decided by the apparent intention of the testator. Now when one by his will gives a certain amount of stock, or the income of stock, in a particular bank, or other corporation, and at the time of making the will, he is owner of the exact amount of stock given, the presumption is strong, that he intended to give the stock of which he was the owner. Such is the case under consideration. The testator was the owner of the exact amount of stock described in the will, and we must understand, nothing in the language of the will appearing to the contrary, that it was the income of this particular stock which he intended to appropriate for the use of schools. The provision made in case either of the companies should be dissolved, confirms this construction, and there is nothing in the language of any part of the will which renders it doubtful. This legacy therefore must be considered as specific and not pecuniary.1
But it has been argued, that if it is so considered, there is nothing in the case to indicate an intention on the part of the testator to adeem the legacy. It is however clearly settled, that the alienation of a specific legacy is presumptive proof, and it is strong proof, of an intention to adeem. It is for the plaintiff to show circumstances sufficient to repel this legal presumption, and certainly no such circumstances appear. [57]*57The same considerations which induced the testator to alienate a portion of his stock, might have induced him also to diminish his bounty to the school district; and his suffering his will to stand unaltered after the sale of the Beverly bank stock, is a circumstance tending to strengthen this supposition. Upon the whole, therefore, we are of opinion that the sale of the Beverly bank stock is a sufficient indication of the testator’s intention to adeem the legacy pro tanto; and that the other facts in the case do not repel the legal presumption arising from this circumstance.1
Plaintiff nonsuit.