payment at a more or less remote period; and even here the risk assumed is sometimes limited to the contingency of death within a specified period, or so that death under prescribed conditions shall vitiate the policy; while, furthermore, the rights of particular beneficiaries designated by such a contract may depend upon the contingency of surviving the life insured.1 CHAPTER XII. LEGACIES AND DISTRIBUTIVE SHARES. The § 560. Legacies and Distributive Shares in General. various classes of personal property to which we have hitherto devoted our attention are such that ownership in the thing may be acquired in a variety of ways, chiefly by means of a contract between living parties. But legacies and distributive shares pass by the death of one person to another, death indeed giving them full creation; and in such property original title is acquired by "succession," to use the broad word of the civilians; in other words, it is transmitted by one's last will and testament, in which case there is a legacy, or else by the law, when we find a distributive share instead, under the local statute of distributions. Of course by devise under a will or by descent, and as a "succession" title, one acquires real property interests; but their treatment is not within our present scope. From the main aspect, legacies and distributive shares seem to fall in place under the head of Title to Personal 1 The topics of Fire and Marine Insurance are treated at length in the treatises of Phillips, Angell, Arnould, and others. Mr. Bliss deals with Life Insurance. But for American readers the best works of reference are those of Flanders and John W. May on Fire Insurance (the latter edited in an 1891 edition by Mr. Frank Parsons) and Parsons on Ma rine Insurance. Mr. May's treatise has the advantage of comprehending all kinds of insurance except marine risks. Judge Bennett's Fire Insurance Cases, and Prof. Bigelow's Life, Accident, &c. Insurance Cases, are valuable as supplying complete series of the decisions themselves in compact volumes, so far as they continue. Property; since money, furniture, stock, bills and notes, and the other classes of personal property which we have considered, retain their identical character, though massed together or passing separately by way of gift upon the owner's death, and so finding a new owner. And yet we shall not do violence to our subject by devoting a chapter to their brief consideration as a species of personal property. For a legacy or distributive share, expectant or vested, is assignable under suitable circumstances like other choses in action or incorporeal chattels, and constitutes, as it might be said, a sort of debt from a dead man's estate, or an incorporeal right to recover various specific goods or a sum of money therefrom. Viewed in this light, legacies and distributive shares appear as distinct classes of incorporeal personal property possessing an intrinsic value of their own not lightly esteemed in the community. Let us, then, close our examination of the leading classes of personal property, by sketching a brief outline of the law pertaining to these last of incorporeal chattels. § 561. Legacy defined.—I. A legacy is a gift by last will; and this word appears to be generally synonymous with "bequest," though more familiarly spoken; since both of these terms commonly signify that the gift made is one of personal and not real property; the latter, however, being the more precise in such a sense. Persons often use words carelessly in their testamentary dispositions, else they would apply to a gift of real estate the more appropriate word "devise. " 2 Our present concern is of course only with legacies in the strict sense, that is, to testamentary gifts of personal property; although the term is sometimes used with reference to a charge upon real estate.3 § 562. General and Specific Legacies; Demonstrative Legacies. - Legacies are of two sorts, general or specific. A legacy is said to be general when it does not amount to a bequest of 1 See, e.g., Bryan v. Spruill, 4 Jones Eq. 27; Weems v. Weems, 19 Md. 334. 984; 2 Redf. Wills, 2d ed. 1-4; 2 Str. 2 See Bouv. Dict. "Legacy," "Be- Woolley, 40 N. Y. 378. As to legacies, quest,' "Devise." 82 Wms. Ex'rs, 6th Eng. ed. 981 see also Schoul. Ex'rs and Adm'rs, §§ 458-475. any particular portion of, or article belonging to, the estate, as distinguished from all others of the same kind; but when it does amount to such a bequest, the legacy is said to be specific. The same distinction is made at the civil law, which furnishes the striking illustration that, if one bequeathes "my watch" or "my diamond ring," the legacy is specific; while if he bequeathes "a watch" or a "diamond ring," the legacy is general. In the one instance that particular watch or ring must be delivered; in the latter any watch or ring of the kind will answer. The consequences of the distinction are important: for, on the one hand, the party to whom a specific legacy is given can have no claim upon the estate on that account, if the thing given cannot be found and identified among the testator's assets; while, on the other hand, if it can be found and identified, he is entitled to it without being required to contribute towards making up any unexpected deficiency which may arise in regard to the other portion of the estate. Thus, the bequest of "my diamond ring" is ineffectual, unless the testator leaves a diamond ring of his own answering to the description; but if he does, the legatee should have it in its present condition, neither better nor worse, and without diminution from the circumstance that the estate is not large enough to pay all legacies in full. Hence there are both advantages and disadvantages to be found in a specific legacy as compared with a general one.1 General legacies are usually of money. There is a class of legacies lying between the general and specific, to which the civilians applied the term demonstrative legacies; and in this class we include bequests of a certain amount of money to be paid out of a particular fund.2 § 563. Residuary Bequest or Legacy. That which remains of a testator's estate after paying all debts and expenses and satisfying all particular bequests and devises is the residue, 12 Wms. Ex'rs, 1076 et seq.; Fontaine v. Tyler, 9 Price, 94, 104; 2 Dom. Civ. Law, § 3546; 1 Roper, 3d ed. 170; Schoul. Ex'rs, § 461; Purse v. Snaplin, 1 Atk. 414; Norris v. Thomson, 2 McCarter, 493; Foote, Appellant, 22 Pick. 299; Stephenson v. Dowson, 3 Beav. 342. 2 Creed v. Creed, 11 Cl. & Fin. 508; Touch. 433; Coleman v. Coleman, 2 Ves. Jr. 640; 2 Wms. Ex'rs, 6th Eng. ed. 1078; 1 Roper Leg. 215, 3d ed. and the person to whom this residue is devised or bequeathed is known as the residuary legatee. A residuary bequest, so far as personal property is concerned, carries everything not otherwise effectually disposed of, whether such other disposition was at all attempted by the testator or not. The presumption here being that at most a testator intended to take from the residuary legatee only for the sake of the particu lar legatee, the former is a greatly favored party, and the courts would much sooner construe a will so as to carry over to him the residue of the personal property, than treat the case as one of a partial intestacy.1 § 564. Distributive Shares considered.—II. Lastly as to distributive shares. When a person dies intestate, leaving personal property more than sufficient to pay all his just debts and the expenses involved in settling his estate, the balance. goes by way of distribution to such persons and in such shares as the law may have directed. The shares thus left over are known as distributive shares; the officer, whose duties correspond to those of the executor under a will, is styled an administrator; and for purposes of administration the personal assets of an estate are considered as massed together at their total appraised value, and so appropriated first to the payment of legal debts or claims against the estate in the order of preference (inclusive of statute allowances to a widow), and finally, to distribution. The surplus, if any, which remains for this latter purpose, is computed by deducting from the appraised value of the personal assets, increased by such sums as may have accrued to the estate in the course of administration, whatever the administrator may have lawfully paid out in a just course of administration and what should be allowed him; and if the administrator's accounts are properly filed and approved in court, the distributive balance will appear on his final account. 1 Attorney-General v. Johnstone, Amb. 577; 1 Jarm. Wills, ed. 1861, 724; Cowling v. Cowling, 26 Beav. 449; King v. Strong, 9 Paige, 94. As to the payment and satisfaction of legacies, and the proper settlement of the estate of a deceased person, see Schoul. Ex'rs and Adm'rs, §§ 476491. -The § 565. The Same Subject; Method of Distribution. method in which distribution shall be made is set forth by statutes known familiarly as statutes of distribution; the most famous of these being the English statute of 22 and 23 Charles II. In all or most of the United States there is some explicit statute of this sort in force; and though the American policy of descent and distribution may be said to differ considerably from that of England, yet with regard to personal property the English statute, which itself is largely borrowed from the civil law, serves as the basis of our own legislation.1 |