notwithstanding this last clause in the statute; for by the death of the wife there was no will, and the codicil was as a new one, and not an alteration of the old and it was said that if a man, possessed of an estate of 1000l. by will in writing gave 500l. to B, he might give the residue by a nuncupative will, so as he did not alter the executor."

Soldiers in actual military service, and mariners at sea, are excepted from the operation of the statute. But the wills of seamen are subjected to a variety of regulations by later statutes."

lillen& M2 Notwithstanding the statute of frauds, gifts may Kusometimes be valid, which do not appear upon the 0.469. will. Thus if a testator is prevented from inserting a

legatee's name by the promise of the executor, residuary legatee, or devisee, to pay the legacy, the payment will be enforced in Chancery, if there is sufficient after satisfaction of the legacies in the will. Hence also, where the obligee of a bond in his last sickness told his executrix, that the obligor should have the bond, and should not be asked or troubled for it; and the executrix afterwards promised the obligor to deliver up the bond; it was accordingly decreed to be delivered up, and cancelled. And where a man, being displeased with his son, devised his estate

a

Stonywell's Ca. Sir T. R 334.

b See Toll, Ex. 60.

C

Chamberlaine v. Chamberlaine, 2 Freem. 34, cited Pr. Ch. 4. Oldham v. Litchford, 2 Freem. 284, though in 2 Ver. 506, it appears not to have been omitted. Drakeford v. Wilks, 3 Atk.539. Barrow v. Greenough, 3 Ves. 152; and see 9 Ves. 519.

11 Ves. 638. Thynn v. Thynn, 1 Ver. 296. Parry v. Juxon, 3 Ch. Rep. 38. Chamberlain v. Agar, 2 Ves. & B. 259. That assumpsit lies, see Rookwood's Ca. Cro. Eliz. 163. Dutton v. Poole, 1 Vent. 318. 332.

Reech v. Kennegal, 1 Ves. 123. Ambl. 67.

• Wecket v. Raby, 3 Bro. P. C 16.

to a stranger, who in his answer admitted that the testator had advised him that he might allow the son 40l. a quarter, according as he should think the son deserved it; the Court decreed the 407. a quarter to the son during his life. So again, where a daughter, having deposited 1807, in the hands of her mother, made her will, and appointed her mother executrix; and afterwards, by word of mouth, desired the mother to give this 1807. to the plaintiff, if she thought fit: it was held, upon the authority of the last case, to be a trust in the mother. It is added however in the report, that this decree was against the opinion of several at the bar, who thought it too hard on the election left in the mother.

1

But where a testator bequeathed to the plaintiff 201. per annum, and after talking of making a codicil, and leaving him 157. per annum more, the attorney told him, that if B. C. & D. (the devisees of his estate) would give the plaintiff a bond to pay him 157. per annum more, it would be sufficient; and B., being present, promised that he and the other devisees would do so; and a draft was prepared but not executed, and the testator lived five weeks afterwards, and the plaintiff remained nine years without demanding the performance of the promise, and then brought his bill; Lord Hardwicke thought the circumstances not such as to entitle him to relief. And where a man by his will gave a legacy to the eldest son of his sister out of certain real estates, and after his death a paper was proved in the ecclesiastical court, signed by the executor (who was also devisee of the real

Kingsman v. Kingsman, 2 Ver. 559.
Jones v. Nabb, 1 Eq. Ab. 404.

Gilb. Eq. R. 146. 10 Mod. 404.

• Whitton v. Russell, 1 Atk. 448.

estate) and others, stating that, at the request of the testator, they were called in to hear his will, touching the other sons of his sister, and that they understood that the testator was willing and desirous that the other sons should each receive the same sum of money as the eldest, and that the executor promised that the same should be observed; Lord Kenyon said, the effect of this codicil was only that the parties understood it to be the will of the testator, that the other sons should have legacies, and the heir promised to perform this; but the Court could not convert the promise of the heir into the will of the testator; and his Honour, therefore, thought that this paper, though testamentary, yet operated nothing."

SECTION II.

Of Specific Legacies.

A SPECIFIC legacy is a gift of a particular speci fied thing; as of a horse, a piece of furniture, a term of years, and the like. There is this advantage attending it, that if, after payment of debts, the assets fall short, and there is nothing left for the pecuniary legacies, the specific legatee shall have his legacy entire. On the other hand, he can have only what is expressly devised to him; and if the thing given is not to be found at the testator's death, he can claim no contribution from the general legatees. Thus where a freeman of London bequeathed a chattel

lease and all his books to two persons, who were evicted of a moiety by the widow under the custom; and the question was whether they should have satisfaction made for what was so evicted against the legatees at large, or against the legatee of the surplus: it was adjudged they should not, but must be contented with a moiety."

b

But two species of gifts are included under the denomination of specific legacies. The first, where a particular chattel is specified and distinguished from all other things of the same kind. The second, where an article of a certain species is given without any particular identification. The bequest in the one instance can be satisfied only by the delivery of the identical subject, so that, if it be not found among the testator's effects, the gift altogether fails; unless it be only in pawn, in which case, the executor, it is said, must redeem it for the legatee: while a bequest of the latter description is of a more liberal nature, and may be fulfilled by the delivery of any thing of the same kind. Thus if a man bequeaths his grey horse, and has no horse, the legacy fails: but if he gives a horse, or an ox, and has neither, the legacy is not therefore void, but the executor is bound to deliver a horse, or an ox. So if the testator makes a specific bequest of stock, and leaves no stock, nothing passes by the gift: but if he gives a general legacy of stock, it is a direction. to the executor to purchase such stock.

If the testator bequeaths one of his horses, not

• Webb v. Webb, 2 Ver. 110.

2 Bro.113. Anon. 2 Freem. 272. Swinb. P. 3. S.6. Godolph. 438. Toll. Ex. 301. 1 Atk. 416. 6 Mad. 92.

с

Evans v. Tripp, 6 Mad. 91.

• For. 227. Ambl. 58. 1 Atk. 416. 1 Bro. 566. 7 Ves. 399. Chambers v. Minchin, 4 Ves. 675.

regnes - naming which, to J. S.; or wills that J. S. shall have ambers 2 Col a horse, J. S. is at liberty to choose which he will,

35.

excepting the best. But if the words of the disposition are directed to the executor, as if the testator says, I will that my executor give J. S. a horse, the election appertains to the executor. So where a man willed, if he should not have so much as 10,0007. capital stock in the three per cent. Reduced or Consolidated Bank Annuities, or one or both of them, that his executors should make up the capital

sum of 10,000l. in the Reduced or Consolidated Bank Annuities, or one or both of them, and should hold the same in trust, &c.: the executors, it was held, had the election in which fund the legacy was to be made good.b

A specific legacy may also consist of a quantity of chattels described collectively; as in a gift of all the testator's pictures, of a library of books, or of all his personal estate at W.; and these bequests will pass all the testator's pictures, all the books found in his library, and all the personal estate existing at W. at the time of his death; including therefore any books that he may have added to the library, or any personal chattels, such as a coach and horses, that he may have brought to W. since the making of the will: and such gifts will take place although there be a deficiency of assets for payment of the pecuniary legacies. Hence, where a man bequeathed to his executors, in trust for certain

a Swinb. P. 7. S. 10. Off. Ex. 253. Godolph. 397. 438. 468. Touch. 447.

b Fontaine v. Tyler, 9 Pri. 94.

c Dean of Christchurch v. Barrow, Ambl. 641. Gayre v. Gayre, 2 Ver. 538,

a All Souls Coll. v. Codrington, 1 P.W.597.

e

Sayer v. Sayer, Pr. Ch. 392. 2 Ver. 688. Gilb. Eq. R. 87; and see Touch. 446. 1 Ves. 273. 9 Pri. 98. Nisbett v. Murray, 5 Ves. 149.

f Sayer . Sayer, ante N. e.