#### JOSEPH M. GRAHAM AND OTHERS *against*JOHN D. GRAHAM’S EX’R.

Where a testator bequeathed tp each of several of his children, certain amounts of iron, iron castings and other personal chattels, and then added a clause directing all his *“*personal property not given away in this will specifically, shall be sold and the money equally divided” among his five daughters and a son, to make them equal with the other children : — It was *held,*that the latter clause did not contain a general residuary legacy but a specific one, the effect of which was to make the bequests of the iron, iron castings and other personal chattels, general in the nature of specific instead of general simply; and upon a deficiency of those articles on hand at the death of the testator, the legacies of them must abate among themselves *pro*rata, with a right to be paid out of the general assets of the estate, if any, but not out of the proceeds of the property left to be sold and divided among the five daughters and son.

If a testator direct, that out of a certain property given to one of his daughters, she shall 'deduct what she may have received in money more than his other daughters, and it appear that they have received unequal sums, she shall deduct only what she may have received more than the daughter who received the next largest sum.

Money legacies are general, and, in case of a deficiency of assets, must abate *pro rata*among themselves and with the residue of the legacies general in the nature of specific, which have not been paid in full out of the specific fund.

If at the death of the testator, one of his daughters be at school, the contract for her schooling is a debt to be paid out of the general assets of the estate; but when the contract terminates, the expenses of her education must be paid out of her share of the property.

*292This iras a bill filed by the legatees in the will of John I). Graham, deceased, against, the executor, for a settlement of the estate and payment of the legacies respectively. The will was as follows

Calling to mind the uncertainty of life and the certainty of death, I, John D. Graham, of Lincoln county, North Carolina, do make, ordain and publish this, as my last will and testament.

I request my just debts to be all paid.

I give and devise to my beloved wife Jane, all my home or Little lands, on the Catawba river, during her natural life ; but when my youngest son, Robert.Clay, comes to be 21 years old, then he is to have one-half of said Little lands until his mother’s death, when be is to have the whole of said Little lands or home place. Also all the household and kitchen furniture, crop, provisions, stock, tools and vehicles, which may be on my home place at my death, I give and bequeath to my wife Jane, except 3 horses worth not less than $75 each, and 6 cows and calves, to be given to my three youngest daughters. The above gift is ma,dc more ample, because I expect and intend my younger children all to live at the home place with my wife.

1 give and bequeath to my wife Jane, the following negroes :— Ebb, Haley and her children, Sue and'her children, Tal, Dover and Arthur.

I give to my son Robert Clay, the following negroes : — Sarah, wife of old Isaac, Moses, Albert, Vice, Lott, Ephraim, Monroe, George, Gill and Sanco.

I give and bequeath to my daughter Mary Ann, one negro girl named Mary, in addition to the negroes heretofore given. I also give her 8,000 lbs. of Iron, and the same quantity of castings.

' I have already, by deeds and bills of sale, given my son Charles his full share of my real estate, negroes and other property at the forge.

1 give and bequeath to my son Joseph, one-half of all my Furnace land, including one-half of my share in the ore bank and liniestone quarry, near King’s mountain, also one-half of all the patterns, flasks, tools and stock of cattle, hogs at the Furnace, his saddle-horse, and one wagon and team, and the half of all the household furniture and bedding that 1 left at the Furnace. I have given Joseph his full share of negroes, and made him a deed of gift to them.

I give and bequeath to my son James Franklin, the other half of all my lands at and around the Furnace, including one-half of my share in the ore bank and limestone quarry, also one-half of *293all the patterns, flasks, tools and stock of bogs and cattle at tire Furnace, one good saddle-horse, one wagon and team, the half of all the household furniture and bedding that I left at the Furnace. I give and bequeath to my son James Franklin, the following negroes : — Isaac the potter, and Pat his wife, Harry, Charity, Milus, Milly, and old Isaac, I give him Julius and two hundred dollars beside to place him equal in division with those that have expended more money than he at school.

I give and bequeath to my son Henry, my half of the Cancel-ler mill lands, and sixteen hundred dollars in money. I give him two horses, worth one hundred dollars each, and one good saddle and bridle. I also give him twenty-eight hundred and fifty dollars worth of negroes, the value of which to be ascertained by reference to my family book.

I give to my son Alfred A. Hamilton, my Cathy plantation, with all the crop, provisions, stock of all kinds, and every thing that may be on that place at. my death. I also give him $2,850 worth of negroes, the value to be ascertained by reference to my family book.

I have given my daughter Malvina, her full share of negroes, and she has a deed of gift for them. I give now to Malvina, three thousand dollar’s worth of iron and castings at 4 cts. each and half of each, deducting what, she has already received.

I give and bequeath to my daughter Martha, $2,850 worth of negroes, the value to be ascertained by reference to my family book. I also give her $3,000 worth of iron and castings, at 4 cents each and one-half of each, deducting out what money she has received more than the rest of my daughters.

I give and bequeath to my daughter Eliza P., $2,850 worth of negroes, the value to be ascertained by reference to my family book. I give her one bridle and saddle, $3,000 worth of iron and castings at 4 cents each and one half of each.

I give and bequeath the same amount and kinds of property to my daughter Julia, (hat I have just given to Eliza.

I will and direct that my Iredell plantation, on the Catawba river, near 1,000 acres, be sold, and the money equally divided among all my children by my first wife, who owned about 800 acres of said lands.

I keep a family book, in which I set down and charge each of my children with what I give them ; now if any one of them receive any portion of the above legacies between the date of this will and my death, that is to be deducted out of their share.

I will and direct that all my personal property not named and given away in this will specifically shall be sold, and the money equally divided among my five daughters and my son Henry, to *294make them, equal with my other children, who have received somewhat more in land.

In the event of the death of my son Clay before he is twenty-one years old, or in case he dies without lawful children, then my wife is to hold, use and enjoy, the advantages of all the lands and slaves willed to Clay during her life, and after death, then my home place and all the slaves given to Clay are to be sold, and the money equally divided among all my children.

In witness whereof I have, this 10th day of September, *1845,*set my hand and affixed my seal.

Signed JNO. I). GRAHAM, [Seal.]

In the presence of us,

James Graham Sidney X. Johnston, > Signed. James F. Johnston, j

Codicil to the above Will.

January 1st, 1846. I, John D. Graham, upon further considerations of the above will and testament, annex the following codicil, (viz :) — As I have received eight negroes from the estate of my first wife, Elizabeth Graham, namely, Adam, Horace, Jacob, Eve, Lithe, and 3 small children, of said woman, and may, on further investigation of said estate receive others, all of which negroes I devise equally among my first wife’s children, provided however, that I intend that these negroes shall, in the first place, or before division, indemnify my estate against a suit now pending in Lincoln Superior Court, the suit of Falls *vs.*the Sheriff for negroes I have already had, sold and divided in the above will amongst my children. I also hereby constitute and appoint my son, Charles C. Graham, and William Johnston, Attorney, my lawful Executors, and hereby revoke all other Wills by me preceding this ; in witness whereof I have hereunto set my hand and affixed my seal.

Signed JNO. D. GRAHAM, [Seal.]

In presence of us.

Sidney X. Johnston, J q- , James b . Johnston, J &

The defendant filed his answer, in which hesetout an account, and expressed his readiness to come to a settlement, but stated that certain difficulties in the construction of the will had arisen, upon which he prayed the instruction of the Court. These difficulties are thus set forth in the answer:—

*295*First.*The iron and castings on hand are quite inadequate to meet the several legacies; and some of the complainants contend that they should abate partially, and others, that this defendant, out of the residue should purchase other iron and castings to supply the deficiency. The complainant Mrs. Orr contends, that she is entitled to have delivered to her 8000 lbs of iron, and the same quantity of castings, without any deduction of the amount paid her by testator, as appears by his family book ; and further that she is entitled to priority of payment, over the other iron legacies.”

*“ Secondly.*ThatoutoftheironandcastingsbequeathedtoMar-tha, ‘the testator directs there shall be deducted what *money*she has received more than the rest of my daughters’. The other daughters, as appears by the family book, have received different sums, to wit: Mrs. Orr, $>816 ; Mrs. Young, about $>746 ; Mrs. Rounce-ville about $>890 ; Eliza, about $330 ; and Julia, nothing. This defendant is unable to decide how much should be deducted in this case, as the other daughters have been unequally advanced by the testator.”

*“ Thirdly.*Another matter that has been the subject of difference is ; — Do the legacies of money, horses, saddles &c. take any' precedence or not over the legacies of iron and castings?

*“Fourthly.*Complainant, Eliza, was placed at Greensboro’ No. Ca. at School, by testator. Since his death, this defendant has paid her expenses, part incurred before and part since his death, amounting to $216.13 ; and the parties have differed, as to whether this expense should be borne by the estate, or by complainant Eliza.”

*“Fifthly.*The suits referred to in the codicil of said last will and testament, have been determined, and both favourably to complainants. Notwithstanding, the expenses thereof have beenhea-vy — pay for records ¿fee. and the several counsels. The difficulty is, whether by said codicil, these expenses should be borne by the general residue fund, or by the negroes mentioned in said codicil.

At the Fall Term 1851, of the Court of Equity for Lincoln County, the cause was by consent set for hearing and the following opinion declared by his Honor Judge Manly, directing a de¿ cree to be drawn in conformity thereto :

*296*“*The case being heard upon the bill, answer and exhibits, the Court is of opinion, that the iron and castings on hand at the testator’s death, should be divided among the legatees of that species of property, in proportion to their respective legacies. In making this division, such of the legatees as were advanced by the testator after the date of his will,'and charged therewith in his family book, should account for the same. If fully advanced, nothing will be due them, if partly, the residue will be the legacy to be paid. If the executor has alloted more to-any one of the legatees, than would fall to her share under the division herein described, she should account for it at a just valuation, out of her share of the residue of the other personalty. 2. No deduction should be made from Martha’s share of the iron and castings, on account of advancements made to her of money. 3. The legacies of money, horses, saddles &c. being on hand at the testator’s death, should be paid. 4. The contract, of the testator for the education of his daughter Eliza, should be discharged out of the estate. If she has been kept at school beyond the period contracted for by her father, it must be paid out of her share of the property. 5. In distributing the slaves mentioned in the codicil, the executor should charge the sums with the expenses of the suits therein mentioned, and sell if necessary, to extinguish said charge. The costs must be paid out of the estate.”

At Spring Term 1853, the following order was made. *u*Upon (lie opening of this cause, it doth appear to the Court, that the rights of the parties hath heretofore been declared' and the matter of costs left undecided. It is therefore ordered and decreed by the Court, that the cost in this case incurred, be taxed by the Master and paid by defendant out of the estate of his testator ; and in default of payment on or before the first day of September next, the clerk issue execution therefor.”

From tins order the plaintiffs appealed to the Supreme Court.

Johnston, for the plaintiffs.

*Boy den*and *Guión,*for the defendant.

Battle, J.

The appeal from the order or decree made in this cause in the Court below was intended as we are informed by the *297counsel, to obtain the opinion of this Court upon the construction of certain clauses in the will of the late Jno. I). Graham.

The record, as it now stands does not require us to declare any opinion upon the questions raised by the pleadings, for it is simply an appeal from an order made relative to the cost, of t.hesuit. But presuming that the counsel will by consent amend the records, both of the Court below and this Court so that the cause may appear to have been properly before us, we will proceed to give our opinion upon the disputed questions upon which the parties have called for it.

The main difficulty in the construction of the will seems to have arisen from the legacies of the iron and castings. The will appears from its date to have been made and published on the 10th day of September 1845, and the testator died on the 7th day of January 1847. — Whether at the time when he made his will the .testator had on .hand the amount of iron and castings therein bequeathed, does not appear, but when the executor came to settle the estate he ascertained that there was not enough of those articles to satisfy the several legacies of them. In this condition of the estate some of the legatees contended that the legacies abate *pro rata*while others insist that the executor should, out of the •residue of the pioceeds of the estate, purchase other iron and castings to make up the deficiency.' — -This is the first difficulty presents ed to us and its solution depends upon the question whether these legacies are general, specific or general in the nature of specific. A legacy is said to be general when it is so given as not to- amount to a bequest of a specific part of a testator’s personal estate *-,*as a sum of money *generally*or *out*of the testator’s personal estate and the like.’ 1 Roper on Leg. 256. — -A specific legacy is defined to be, *“*the bequest of a particular thing or money specified and dis-tinquishedfrom all* other of the same kind as of a horse, a piece of plate, money in a purse, stock in the public funds, a security for money, which would immediately vest with the assent of the executor.” 1 Roper on Leg. 149. There is also alegacy of quantity*» *the nature*of a specific legacy, as of so much money with reference to a particular fund for its payment. This land of legacy is so far *general*and differs so much in effect from a specific one, that if the fund be called in or fail, the legatee will not be deprived of *298his legacy, but be permitted to receive it out of the general assets : yet it is so far *specific,*that it will not be liable to abate with the general legacies in case of a deficiency of assets. *Ibid*150. From these definitions of legacies, general specific and in the nature of specific, which are well established, it is clear that the several legacies of iron and castings and particularly those of so many dollars worth of iron and castings are not specific or general in the nature of specific unless they are made so by the next to the last clause in the will. No particular iron and castings are mentioned and no particular fund or parcel of iron and castings is specified out of which they are to be paid. The testator does not say *my*iron and castings, or the iron and castings which I may have on hand at the time of my death. They are like legacies of so many shares of bank stock which are general legacies, even though the testator owns the number of shares named, if he do not call them *my*shares of bank stock. *Davis*v. *Cain*1 Ire. Eq. Rep. 304. But we are of opinion that these legacies though they would be otherwise general are made general in the nature of specific legacies by the clause of the will above referred to. That clause is in these words “ I will and direct that all my personal property not named and given away in this will specifically shall be sold and the money equally divided among my five daughters and my son Henry to make them equal with my other children who have received somewhat more in land,” now under this clause all the iron and castings which the testator owned at the time of his death Would have had to be sold, if the legacies of them were not in some sense specific. No person can believe that such was the testator’s intention. Such a construction would *involve the*absurdity of supposing that the testator, who appears to have been a large manufacturer of such articles, wished his *iron*and castings sold at auction by his executor for whatever they might bring and then repurchased by him at a certain price for the legatees. The legacies of horses, bridles and saddles would most of them have been also general but for this clause, and the executor would not have#been otherwise authorized to pay them out of such articles as were on hand at the death of the testator.

All the legacies of iron and castings, including that to Mrs. Orr, being thus general in the nature of specific, must be paid out *299of such of those articles as /the testator owned at the time of his death, making no deduction ‘.herefrom on account of what the executor calls contracts, due bills, payable in iron and castings, for, as between the legatees, those are debts payable out of the general assets. If there were not enough of those articles to satisfy all the legatees, they must be divided among them in proportion to their respective legacies. The deficiency in these legacies may be made up out of the general assets of the estate, if there be any, (1 Rop. on Leg., 150,) but they cannot be paid out of the proceeds of the personal property directed to be sold and divided between the testator’s five daughters and his son Henry, because that bequest is specific, and not a general residuary legacy. Such was his Honor’s opinion in the Court below, and we concur with him. We concur with him further, that in making the division, such of the legatees as were advanced by their father after the date of his will, and charged therewith in his family .book, should account. If fully advanced, nothing more will be due them from that fund : if partially, the residue will be the amount to be paid. If the executor has allotted more to any one of the legatees than would fall to her share under the division above specified, she should account for it at a fair valuation out of her share of the proceeds of the other personalty.

2. The second difficulty arises from that clause of the testator’s will, where he directs that out of the iron and castings bequeathed to his daughter Martha, shall be deducted what money she has received more than the rest of his daughters, the rest of the daughters having received unequal sums. Some effect must be given to the clause, but in (lie absence of any other standard afforded by the testator himself, we think tire only deduction to be made is, what she received more than the highest sum given to either of the other daughters. If more than this were deducted, then Martha would receive less than one or more of her sisters, which is not sufficiently expressed, to be declared to have been the wish of the testator.

3. It has already been intimated that our opinion is that some of the legacies of horses, saddles, &c., are general in the nature of specific, and it follows that they must be paid out of articles of the kind on hand at the death of the testator. The money lega*300cies arc general, and if there be a deficiency of assets to pay all . the general legacies, and the residue of the legacies general in the nature of specific, not paid out of the specific fund, they must abate among themselves *pro rata.*1 Roper on Leg., 284.

4. His Honor was right in holding that the contract made by the *testator for the*education *of his*daughter Eliza, being one of his debts, ought to be discharged out of the general assets of the estate. But if she has been kept at school since the termination of her father’s contract, the expenses are a charge upon her share of the property.

5. We are clearly of opinion that the expenses of the lawsuits mentioned in the codicil, are made a charge upon the slaves therein directed to-be divided among certain of his children.

The decree below will therefore be affirmed, except in relation to the amount to be deducted out of Martha’s share of iron and castings, and the abatements of the legacies as *between the*general legacies and the residue of the legacies *general*in the nature of specific, *in*which particulars it must be reformed. The costs *of*the cause, both in the Court below and this Court, must be paid by the executor out of the general assets of the estate.

Per Curiam. Decreed accordingly.