DETERMINATION AS TO THE CHARACTER. OF THE LEGACY BEQUEATHED.

Court of Appeals for Franklin County.

#### Simeon Nash, as Executor of the Last Will and Testament of Mary Maxon Nash, Deceased, v. Darien C. Hamilton et al.

Decided, January 15, 1918.

*Wills*— Bonds *Bequeathed But Afterward Sold by the Testatrix*— Be*quest Demonstrative and Ordered Satisfied Out of Other Funds of the Estate.*

1. A bequest of $2,000 of the first mortgage bonds of the Gallipolis Gas & Electric Company is a demonstrative and not a specific legacy.

2. The bonds described having been converted by the testatrix, the legacy is not thereby adeemed but may be satisfied from any property or fund of the estate not specifically devised or bequeathed.

*Williams & Nash,*for plaintiff.

*G. C. Bibbe,*contra.

Allread, J.

On appeal.

This cause involves a construction of the following clause of the will 'of Mary Maxon Nash:

> “To my sister Darien O. Hamilton, wife of F. W. Hamilton, I give and devise the following property: * * *.

> “ (c) $2,000.00 of the first mortgage 'bonds of the Gallipolis Gas & Electric Company, said bonds being secured by mortgage upon both the gas and electric plants. ”

At the time of the execution of said will the testatrix owned four first mortgage bonds of the par value of $2,000 issued by the Gallipolis Gas & Coke Company, which operated a gas and electric plant in said city and which were evidently the bonds contemplated in the provision above quoted.

*207Subsequent to the making of the will, the testatrix sold two of said bonds for the sum of $1,016.92. The other two bonds were, in the lifetime of said testatrix, liquidated, the testatrix receiving therefor the sum of $950.

At the time of the testatrix’s death she held no bonds in said company.

Counsel for Darien C. Hamilton contends that the bequest under consideration is primarily one of $2,000, and that the bonds referred to merely designate the fund from which the bequest is to be raised.

On the other hand, counsel for the executor contends that the primary bequest is of the said bonds, and that the $2,000 is merely descriptive of the bonds.

If the latter contention prevails then it would follow that the bequest was specific and that the sale of the bonds by the testatrix would have the effect of adeeming or revoking the legacy.

If the former contention is adopted the bequest would become a demonstrative one, to be realized first from said bonds and in the absence of such bonds from other funds of the estate not specifically devised.

The respective contentions have been supported by counsel in able and exhaustive briefs in which all the leading authorities have been cited and reviewed.

In proceeding to a consideration of the construction of the clause above quoted, we find that the authorities are practically unanimous that, where the terms of a will are ambiguous or doubtful, the courts are strongly inclined against .a specific legacy, and favor a construction which will make the same either general or demonstrative.

The reason for this is apparent when the nature of a specific devise is considered. The property which is made the subject of a specific devise is often disposed of in the lifetime of the testator, and while the proceeds may remain in the testator’s estate, yet such proceeds can not, for obvious reasons, be made liable to the specific devise. In many cases, therefore, the specific devise fails by operation of law, when the testator did not actually intend to adeem or revoke the legacy.

*208This rule of construction is thus stated by Wood, J., in *Gilbreath*v. *Winter Ex’rs,*10th Ohio, on page 69:

> “The distinction which marks the specific from the demonstrative legacy is frequently nice and difficult, but it is the oft repeated language of the boobs that courts lean against the former, and it is with regret the chancellor declares he finds the intention of the testator establishes a specific legacy.”

The same rule- is thus stated in the case of *Kenaday*v. *Sinnott,*179 U. S., 606:

> “4. Certain familiar rules of construction of wills reiterated; (a) that the intention of the testator must prevail. * * * (e) That the courts in general are averse from construing legacies to be specific.”

Many other authorities are to the same effect. We, therefore, come to a careful examination of the language employed to determine whether the legacy was clearly intended to be specific.

The case of *Rote*v. *Warner,*17 C. C., 342, is cited. In this case the devise was of $10,000, payable out of certain shares of the capital stock of certain corporations, .and this was held to be demonstrative.

The ease of *Ives*v. *Canby,*48 Federal, 718, is very similar to the case at bar and holds the devise to be demonstrative.

Counsel for the executor insists that the preposition “of” is significant and is consistent only with the theory oE a specific bequest of the bonds. While such construction is possible, yet we have no hesitancy in holding that it does not clearly follow.

Under what we consider to be the almost unanimous trend of authority, we are bound to hold that the provision above quoted creates a demonstrative legacy in favor of Darien C. Hamilton and that, in the absence of the bonds referred to, the legatee is entitled to have the same satisfied out of other funds of the estate not specifically devised.

Decree accordingly.

Kunkle, J., and Ferneding, J., concur.