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trustwill

Related Cases

In re Tillinghast, 23 R.I. 121, 49 A. 634

Facts

Ellen M. Perry executed her will on July 28, 1898, and died on May 28, 1899. Prior to her death, she received a sum of $11,558.92 from the Fidelity Insurance, Trust and Safe-Deposit Company, which was part of her mother's estate. Although she received various securities, she converted most of them for her own use, except for two mortgages that were assigned to her but retained by the trust company for collection. This led to questions about the status of the legacy in her will.

The will of Ellen M. Perry was executed on July 28, 1898, and she died on May 28, 1899. On May 11, 1899, she executed the following receipt to the trustee under Mrs. Dabney's will, as follows: 'Received of the Fidelity Insurance, Trust and Safe-Deposit Company, trustee, the sum of eleven thousand five hundred and fifty-eight and 92 / 100 dollars in kind as set forth in the schedule hereunto annexed…'

Issue

1. Does the language of said fifth clause constitute a specific legacy? 2. If so, has such legacy been in whole or in part adeemed? 3. Does the share of Mrs. Perry in the estate of her sister Frances E. Rhett come within the provisions of said fifth clause of the will of Ellen M. Dabney?

These questions are: (1) Does the language of said fifth clause constitute a specific legacy? (2) If so, has such legacy been in whole or in part adeemed? (3) Does the share of Mrs. Perry in the estate of her sister Frances E. Rhett come within the provisions of said fifth clause of the will of Ellen M. Dabney?

Rule

A specific legacy is one which separates and distinguishes the property bequeathed from the other property of the testator so that it can be identified. If the specific items of the bequest no longer exist at the time of the testator's death, the legacy is adeemed.

A specific legacy is one which separates and distinguishes the property bequeathed from the other property of the testator so that it can be identified. It can only be satisfied by the thing bequeathed. If that has no existence when the bequest would otherwise become operative, the legacy has no effect.

Analysis

The court determined that the bequest was a specific legacy because it clearly identified a fund and appropriated it for a definite object. However, since most of the securities had been converted by Mrs. Perry during her lifetime, the court found that the legacy was partially adeemed. The two mortgages were not considered adeemed as they remained identifiable at the time of her death.

The language used is substantially similar to the language used by the court in Dean v. Rounds, 18 R.I. 437, 27 Atl. 515, 28 Atl. 802, as constituting a specific bequest. It absolutely appropriates a fund clearly defined, and for a long time invested in certain securities, easily capable of identification, but whose exact cash value was not known, to one definite object.

Conclusion

The court concluded that the fifth clause of the will created a specific legacy that had been partially adeemed due to the actions of the testator. The terms of the clause were strictly limited to the interest Mrs. Perry had in her mother's estate.

A decree may be entered in accordance with this opinion.

Who won?

Tillinghast prevailed in the case as the court ruled in favor of the construction of the will that aligned with the specific legacy interpretation.

We are consequently of the opinion that the legacy was thereby pro tanto adeemed, since the specific items of the bequest no longer exist.

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