#### Hutchinson *et al. vs.*Fuller *et al.*

In the tenth item of a will the testator provided as follows: “I bequeath unto Dr. Thomas B. Hutchinson, of the county of Oglethorpe, in trust, the sum of eighteen thousand dollars, first to be taken out of the proceeds of the sale of realty,” etc., and then fol*89lowed the *cetiuis que trust,*etc. In another item he provided that “the other third of said eighteen thousand dollars, or bonds and securities into which it may be invested, I bequeath,” etc.:

*Held,*that the legacy in the tenth item was not a specific legacy of property, but a legacy of an amount of money which was to be raised in the first place from the proceeds of the sale of realty; and if that were insufficient, then from the residuum—the balance of the estate except specific legacies.

January 12, 1886

Wills. Legacies. Before Judge Roney. Richmond Superior Court April Adjourned Term, 1885.

Shewmake and Hickman, as executors of William S. Jones, deceased, filed their bill for construction of the will of their testator and for direction as to the payment of the legacies, under the tenth and twelfth items thereof. The real estate could not be sold for $18,000. The legatees under the tenth item claimed that the deficiency should be made up from the residue of the estate, while the residuary legatees denied this position, and claimed that the legatees under the tenth item were entitled to no more than the proceeds of the real estate. Hutchinson declined to act as trustee under the tenth item, .and Fuller was appointed in his stead. The case was submitted to the presiding judge, without a jury, to construe the will, the body of which was as follows :

“(2.) I direct all the property I may own at the time of my death, heretofore or hereafter acquired, except bonds, hank stock and books, to he sold by my executors or executor, who may qualify, the survivors or survivor of them, privately or publicly, at discretion, and at such times and upon such terms as they or he may deem prudent and for the advantage of the estate; and I direct my realty, until so sold, to he rented out in like manner, privately or publicly.

“(3.) Out of the income of said realty, up to the time of its sale, and if not sufficient, out of any other of my estate converted into money, and not specifically bequeathed, I give unto my nieces, Mary and Ella Jones, and Miss E. 0. Hunt, a comfortable support and maintenence for and during the year next after my death, to be paid over immediately upon my death, or'from time to time.

“(4.) I direct that eighteen thousand dollars of the proceeds of sale *90of realty be invested by my executors or executor, as aforesaid, in such bonds or other securities as they or he may deem best and for advantage of the estate.]”

(5.) Devises to one Hunt certain land for life, with remainder over to the children of the devisee in fee.

.“(6.) I bequeath all my books to my nieces and nephews, tobe equally divided in kind *per capita.”*

(7.) Bequeathes to one Price fifteen hundred dollars in trust for the wife of Price.

(8), (9.) Bequeathes certain bonds and stock to Mrs. Carter in trust for the use of Miss Hunt, and at the death of the latter, the remainder to Mrs Garter absolutely.

“(10.) I bequeath unto Dr. Thomas B. Hutchinson, of the county of Oglethorpe, in trust, the sum of eighteen thousand dollars, first to be taken out of proceeds of sale of realty, before directed, or the bonds and securities into which the same may be invested as directed hereinbefore, to and for the uses and limitations following; that is to say: One-third thereof to each of my nieces, Mary and Ella Jones, for her sole and separate use, benefit and behoof for and during the term of her natural life, free from the debts, contracts, liabilities and control of any husband she may have, and from and after her death, to and for such child or children or lineal descendants thereof, *per stirpes,*as she may leave living at the time of her death, and in default of such child or children and such descendants thereof, then to and for her sister and her brother, Charles Jones, or the lineal descendants of either or both, *per stirpes,*living at the time of her death, and in default thereof, remainder dver to the children or lineal descendants thereof, *per*stirpes, of my late sister, Arabella Hutchinson, the wife of said Dr. Thomas B., living at the time of the death of the first beneficiary, said Mary or said Ella, as the case may be.

“The other third of said eighteen thousand dollars, or bonds and securities into which it may be invested, I bequeath unto said Dr. Thomas B. in trust to and for the use and benefit of my nephew, Charles Jones, for and during the term of his natural life, or until he arrives at the age of twenty-five (25) years, and upon his arrival at that age or after that time, if, in the judgment of said Dr. Thomas B., said Charles is of sober and steady habits, and should Dr. Thomas B. have departed this life, and said Charles is in fact of sober and steady habits, I bequeath one-half of this third to him absolutely and free from any further trust and limitation, if he chooses to accept it, and from and after his arrival at said age, then the whole or other half of this third, as the case may be, in trust to and for the use and *91benefit of said Charles for and during his natural life, and from and1 after his death, then remainder over to such child or children, or lineal descendants thereof, *per stirpes,*of said Charles, as he may leave living at the time of his death, and in default of such child or children and descendants thereof, then to and for his said sisters, Mary and Ella Jones, or the lineal descendants of both, *per stirpes,*living at the time of the death of said Charles, and in default thereof, remainder over to the child or children or lineal descendants thereof,per *stirpes,*of said Arabella, living at the time of the death of the first beneficiary, said Charles.”

The other items authorized sales or exchanges of the trust property by the trustee, and provided for the testator’s burial, the erection of a monument for himself and wife, and appointed executors.

The chancellor held that the legatees were entitled to the full amount of $18,000, to be first raised from the sale of the real estate as far as it would go, the residue being paid from the general estate. The residuary legatees excepted.

John 0. Reed, for plaintiffs in error.

Harper & Bro. ; Foster *&*Lamar ; Frank H. Miller, for defendants.

Jackson, Chief Justice.

The only question which this record makes arises out of the 10th item of the will,' the whole of which will is reported at the head of this opinion by the reporter. That contest is between the legatees under that 10th item and the residuary legatees. If the word “first” in that item means that the legatees under it are to be paid before anybody else out of the realty or its proceeds, and if there be not enough realty or proceeds of realty to pay them $18,000, then they are to get no more out of the rest of testator’s property, then the residuum cannot be encroached upon to make up the deficiency, and the residuary legatees will take the whole residuum; but if the word “first” is used simply to show from what property the legacy of *92$18,000.09 is first to be raised, then the legacy is demonstrative ; it is a legacy of that sum of money, to be raised, if it can be, out of lands or their proceeds, but if all of it cannot be so raised, then the deficiency is to come out of the residuum.

The language is: “1 bequeath unto Dr. Thomas B. Hutchinson, of the county of Oglethorpe, in trust, the sum of eighteen thousand dollars *first*to be taken out of proceeds of sale of realty,” etc.; then follows the *cestuis que*trust, etc. We think that these words make a legacy of $18,000.00 in money to these *eestuis qu,e*trust, to be raised out of the proceeds of realty first, but if that fund be not enough to raise-$18,000.00, then the balance of the estate, except specific legacies, must supply the balance of the legacy of $18,000.00. Or, in other words, that the legacy is not specific, that is, of any particular property, but general, of so much money, to be raised *first*out of the proceeds of the sale of the realty and the conversion of those proceeds into bonds; secondly, or next, or afterwards, out of the residuum, thus demonstrating or showing how this general legacy in money is to be raised, and thus making it a general legacy, demonstrative of the fund first to be applied to its payment. 2 Bouvier, “Legacy;” Reese on Ex’rs, p. 256; 2 Wms. on Ex., 995, and note, pp. 1000, 1003, 1132; 1 Roper on Leg., 153-4; 11 Am. Dec., 458, 469; 7 Johnson’s Chan. R., 258; 1 P. Wms., 777; 4 Vesey, 751; 1 Desau. S. C. Chan., 202; 16 N. Y., 365; 25 Id., 128; 63 Penn. St., 312, 316; 47 Ala., 554; 56 Md., 222; 2 Leading Cases in Eq., 479, and many other cases cited by defendants in error.

There is nothing in our own statutes or decisions which conflicts with these authorities; but outside of all of them, we are clear that this construction gives to the will the intention of the testator, which at last is the prevailing rule, before which all others bend.

The language further on in the 10th item clinches the correctness of our construction. That language is : “ The *93other third of said eighteen thousand dollars or bonds and securities into which it may be invested, I bequeath,” etc., not the other third of lands, but of money or its equivalent in bonds and securities into which the land might have been turned under the former direction of the will. Why use the words “ of said eighteen thousand dollars ” if the testator’s intention was not to give these persons eighteen thousand dollars in money or its equivalent ? If only the land was to go to them, or a part of it, how easy to have said so ? To say, I give in trust to them $18,000.00, if my lands will bring so much, if not as much as it shall bring, was quite easy, and would have been clear in favor of the residuary legatees. To say the $18,000.00 is *first*to be raised out of the lands or proceeds, implies conclusively— necessarily, in our judgment—that the lands failing to raise it, some other property of testator’s must raise it, and nothing but the residuum is left to raise it.

Judgment affirmed.