case purse v SNAPLIN et e contra SC Ves cite SC Ves cite Robert Roland give to  his niece a S pound in the old S S Annuitystock of the S S company and to his  nephew r p pound in the old S S Annuitystock of the S S company at the time of  make his will and at his death the testator have only pound in old S S  Annuitystock they be to be consider as two distinct legacy and a S and r p be  entitle to have they make good out of the testator asset and the executor  direct to purchase out of the personal estate pound old S annuity and transfer  one moiety to a S and the other moiety to his own use and the pound old S S  annuity which the testator die possess of to be apply proportionable towards  payment of the legacy to a S and r p Lord Hardwicke determine this case upon  the principle that notwithstanding one of the identical legacy do actual exist  at the time of make the will yet as the testator have not so specifical  describe either of they as to distinguish they from all other thing of the  same kind see post they be to be consider mere as legacy of quantity and  number so partridge v partridge can tempt Talb Lawson v stitch post Abney v  miller post vol sleech v Thorington Ves Brounsdon v winter Amb attorney  general v Parkins Amb Peterborough v mortlock bro Charles Rep but in Jeffreys  v Jeffreys post vol the testator have at the time he make his will actual so  much stock as will exact answer the two legacy which he thereby bequeathe they  be both hold to be specific so where a legacy of this kind be particularize by  the word my as my stock or by any other expression or description which  indicate the testator intention of make it specific or individual as money in  such a bag c then it shall be deem a specific legacy Ashton v Ashton can tempt  Talb p W S c Lawson v stitch post heath v very post vol door v Geary Ves  Avelin v ware Ves sleech v Thorington Ves Drinkwater v falconer Ves Stafford v  Horton bro Charles Rep ashburner v Macquire bro Charles Rep for further  distinction between general and specific legacy the reader be refer to Mr Cox  note to Hinton v pink p W Robert Roland on the d of February make his will in  these word I Robert Roland do hereby make my will dispose of my estate in  manner follow atkins er p videlicet first I give and devise to my nephew  Robert Snaplin and his heir my freehold and copyhold estate by the several  name and description therein mention item you to my niece whether Snaplin  pound in the old Annuitystock of the Southsea company and then after two or  three intervene legacy of stock of different kind testator say I give to my  cousin Robert purse pound in the old Annuitystock of the Southsea company and  the rest and residue of my estate both real and personal I give devise and  bequeathe to my nephew Robert Snaplin his heir executor and administrator and  make Robert purse executor the testator at the time of make his will and at  his death have only pound in old Southsea Annuitystock which whether Snaplin  now the wife of Charles townsend claim under the will of Robert Roland and  Robert purse bring his bill for the legacy and account of the estate insist to  retain the same for his own use for his legacy of pound old Southsea  Annuitystock in which case the defendant whether insist that the plaintiff  shall out of the testator personal estate purchase pound in old Southsea  Annuitystock and transfer the same to her and pay her the dividend from the  death of the testator Robert Snaplin the residuary legatee insist that the  testator only design to give away so much old Southsea Annuitystock as he be  actual possess of at the time of make his atkins will and that no part of the  personal estate ought to be apply in the purchase of pound in old Southsea  Annuitystock the master of the roll decree a account of the personal estate of  the testator and as to the two legacy of pound each in old Southsea annuity  reserve the consideration thereof the master report that the personal estate  be more than sufficient to pay all legacy the cause come on the d of December  his honour be of opinion that there can be but one pound old Southsea annuity  pass by the will and that the pound old Southsea annuity which the testator  have at the time of his death and the interest since must be divide between  the plaintiff Robert purse and whether Snaplin wife of townsend and that purse  shall transfer one moiety of the say pound Southsea annuity and pay one moiety  of the interest t Charles townsend and whether his wife Robert purse and  whether Snaplin because they have not pound old Southsea Annuitystock each  make good to they appeal from this part of the decree Lord chancellor the  general question here be if the two legacy of pound be to be consider as two  gift of the same individual sum and quantity or different sum and quantity if  they be gift of the same individual sum the decree be right if they be  different and distinct sum the reason on which that decree be find total fail  the first and primary thing to be consider be the intention of the testator  and as to that I can have no doubt he have in very plain word give pound to  the one and to the other I believe it will not be deny that when he write the  first clause he design to give whether Snaplin pound how can it then be think  that he have not the same intent as to Robert purse when he write the second  clause where he have use the same word it be urge that the testator have  mistake what stock he have and what he have before give but mistake in make  will be never to be suppose if any construction that be agreeable to reason  can be find out if a man devise a specific individual thing which he have not  this be a plain mistake but such argument be never to be use except through  necessity and where it be not to be avoid so a testator shall not be charge  but from necessity with forgeIfulness and here there be scarce two line  intervene between the two legacy now in question so that there be no  possibility of the testator forget the first objection be that the testator by  the second clause intend to dispose of the same pound old Southsea  Annuitystock and to make whether Snaplin and Robert purse joint tenant but  this argument be inconsistent with the former way of account for it either by  mistake or forgeIfulness and make the testator guilty of the great absurdity  if that have be atkins his intent when he write the second clause he may have  use very plain and expressive word to show the change of his intention I think  therefore his intent be clear to give pound Southsea Annuitystock to Robert  purse and the question now be if such intent can have its effect every clause  in a will shall be construe so as to take effect accord to the testator atkins  er p intent if it be consistent with the rule of law and a testator power over  his personal estate be exceed free and clear from many restraint which the law  lie upon real estate this bring I to the second objection which be that the  testator have only pound old Southsea Annuitystock either at the time of make  his will or his death and the will be relative to what the testator have at  those period of time in answer to this it be to be observe that the testator  have not use in either bequest the word I so as to determine the particular  property and the civil law make great use of the insertion or omission of this  word in legacy roof d vol sec when a testator bequeathe a certain thing which  he specify as be his own the legacy will not have its effect unless that thing  be find extant in the succession for example if he have say I bequeathe to  such a one my watch or my diamond ring and that there be not find in the  succession either diamond ring or watch the legacy will be null but if he have  say I bequeathe a diamond ring or a watch the legacy will be due and will have  its effect and where the word be general it may be take as a injunction to the  executor to purchase and make up out of the assess what he have bequeathe  though he have it not in specie at the time of his death and as a indication  how the testator will have his asset dispose of and these legacy to whether  Snaplin and Robert purse may very consistent take effect as direction to the  executor to purchase pound old Southsea Annuitystock or so much as be want to  make up the sum bequeathe in roof title legacy p sec devise of a thing not in  a thing naturan during the testator life hold good roof d vol sec when a  testator bequeathe a certain thing which he specify as be his own the legacy  will not have its effect unless that thing be find extant in the succession  for example if he have say I bequeathe to such a one my watch or my diamond  ring and that there be not find in the succession either diamond ring or watch  the legacy will be null but if he have say I bequeathe a diamond ring or a  watch the legacy will be due and will have its effect vide swinburne three  part last edition these resolution be ground on the rule of the civil law in  regard to legacy consist in quantity and number and there be a great  difference between the testator describe the quantity in general and his  determine and particularize it by the word I if the surplus of the testator  personal estate will not have hold out sufficient to make up their legacy it  will have be a very strong objection but the case be deliver from that  difficulty by the master report that it be sufficient and then in conscience  all his legacy ought to be satisfy and pay the three objection be that this  legacy to Robert purse be a specific legacy and therefore if not find among  the testator asset must fail atkins to this answer that there be two kind of  gift which by we be reckon under the name of specific legacy first when a  particular chattel be specifical describe and distinguish from all other thing  of the same kind see Lawson v stitch post second something of a particular  species which the executor may satisfy by deliver something of the same kind  as a horse c the first kind may be more proper call a individual legacy and if  such so bequeathe be not find among the testator effect it fail Drinkwater v  falconer Ves or if give first to a and then to b they must divide it or if it  be dispose of in the life of the testator it be a ademption of such legacy but  this gift be not confine to the particular pound old Southsea Annuitystock  which the testator have and therefore do not fall within the first rule but  the second which be of a more liberal nature it be a legacy consist in  quantity and number and not confine to the strictness of the first rule in the  case of partridge v partridge November the testator bequeathe pound Southsea  stock to his wife for life with a power to dispose of it among his child at  the time of make his will he have pound Southsea stock he afterward sell out  pound and then repurchase enough to make up the sum give then come the act of  parliament for convert some part of Southsea stock into annuity one question  be if the alter the stock accord to the act of parliament be a ademption pro  tanto and adjudge not the sale by the father be likewise adjudge no ademption  for the devise of so much Southsea stock be descriptive of the nature and kind  of the thing devise not of the particular stock which the testator have and if  at the time of make his will or death the testator have no stock this will  have amount to a direction to the executor to purchase so much accord to the  term of the devise the latter part of the opinion in partridge v partridge can  tempt Talb S c be a authority direct in point with the present case and I  think there be no real difference between the case of a testator have only one  pound stock and devise two pound stock and the case of a testator have no  stock at all and devise pound or any other quantity of stock the four  objection be that in the other part of the will the testator have give to  several person several quantity of several stock and in each have give the  exact sum he be possess of and therefore it must be intend in the present case  he mean to give no more than he real have but I think that objection turn  quite the contrary way the five objection be that one of these two legacy be a  specific legacy and it be absurd to say that the same word shall make one a  specific and one a general legacy but the ground of this objection fail for  neither of these be a specific legacy within the strict rule for the reason  before mention the testator intend pound Southsea stock which he be possess of  shall be apply in satisfaction of these legacy as far as it will go as if he  have give pound atkins in money to whether Snaplin and Robert purse and have  only pound that must have be apply as far as it will go and the executor if  the asset be sufficient must have make up the rest so it be in this case the  six objection be that this case be like money give in such a chest and atkins  er p that the stock be description story loci but here it must be take as the  description of the thing give for the reason before mention the seven  objection be that there be no reason why pound Southsea Annuitystock shall be  give to Robert purse any more than pound in money there be no particular trust  or use create but these though true be no objection we be not to account for  the testator reason but to follow his intent as near as it can e find out but  if a conjecture may be allow it be to preserve a exact equality between the  two legatee as they be equal in degree of relation to the testator the eight  objection be that if this construction prevail there will be little or no  surplus but if that shall be the case it be of no weight for in our law  particular legatee be always prefer before the residuary legatee though it be  otherwise in the Roman law the residuum be by we consider as the glean of the  testator estate beside here all his real estate be give express to the  residuary legatee by name these two legacy therefore be to be consider as two  distinct legacy and whether Snaplin and Robert purse be entitle to have they  make good out of the testator asset but this be not such a general rule as  that stock always shall be consider as a legacy of quantity and number and  therefore perfect agree with the case of Ashton v Ashton where the stock be to  be sell and land purchase the testator there intend to give only what he be  actual possess of and it be of great weight in that resolution that a trust be  declare t sell and dispose of and it can not be suppose that the testator  intend his executor shall buy stock and immediate sell it again and buy land  with the money vide case in equity during the time of Lord Talbot p W S c his  lordship direct that so much of the say order as relate to the pound old  Southsea Annuitystock give to Robert purse and whether Snaplin shall be  reverse and declare that they be entitle each of they to pound old Southsea  Annuitystock to be make good to they out of the testator personal estate and  that the pound old Southsea Annuitystock which he die possess of ought to be  porportionably apply towards payment thereof and Robert purse to transfer one  moiety of the stock and the dividend to townsend and whether his wife and that  Robert purse do out of the personal estate purchase pound old Southsea  Annuitystock and transfer atkins one moiety to townsend and his wife and the  other moiety to his own use the master to compute how much the dividend of  pound stock from a year after the testator death will have amount unto and  Robert purse to pay a moiety thereof to townsend and retain the other himself  Reg lib b fol atkins er p