owned three hundred and sixty shares of Cayuga County Bank stock and by his will he bequeathed 240 shares of Cayuga county Bank stock to one legatee and 120 shares to another but without indicating that the shares bequeathed were to be taken from those which he owned at the time of his death. The court adjudged that these legacies were not specific, and says in those cases in which legacies of stocks or shares of public funds have been held to be specific, "Some expression has been found from which an intention to make the bequest of the particular shares of stock could be inferred. Where, for instance, the testator has used such language as, my shares,' or any other equivalent designation, it has been held sufficient. But the mere possession by the testator, at the date of his will of stock of equal or larger amount than the legacy, will not of itself make the bequest specific." (Citing Williams Executors, 842; Roper on Legacies, 2067. See, also, Shether v. Sherman, 65 How. Pr. 9; Holt v. Jex, 48 Hun, 528; Matter of King, supra; Spencer v. Hay Library Assn., 36 Misc. Rep. 395; Matter of Bergen, 56 id. 92; Osborne v. McAlpine, 4 Redf. 1.)

In my opinion it follows from the foregoing authorities that the bequest contained in paragraph "First " of the last will and testament under consideration is not a specific legacy but a general legacy.

As to the legacy contained in paragraph "Second concerning which the executors appear in doubt, it is argued that the bequest of the "money remaining to my credit in the Bank of Savings, in the city of New York" is not a specific legacy for the reason that during the life of the testatrix she drew moneys from this bank, and that hence the amount on deposit at the time of her death was uncertain. The question whether a legacy is specific or general, however, does not depend upon the amount or even upon the certainty of the amount as is evident from the definitions heretofore set forth.

In Larkin v. Salmon (3 Dem. 270), the testatrix bequeathed

to beneficiaries named "all the money left in the West Side Bank, after carrying out the directions in the first three clauses of this my will." In the first three clauses of her will she had provided for paying two legacies of $1,000 each, and also for fencing a plot in Calvary Cemetery, so that the amount which would remain in the West Side Bank was also uncertain. The learned surrogate held that the legacy in question was a specific legacy, "Within the definition of that expression sanctioned by the highest judicial tribunals" and cites numerous cases. In Estate of Beckett (15 N. Y. State Repr. 716), the bequest was of all the money that the testator died possessed of in savings banks, and here also the legacy was held to be specific.

Nor can I see any weight in the contention that the testatrix intended by the bequest under consideration to dispose of the remainder of her estate, and that the clause was in effect a residuary clause. It is conceded that she had the sum of $225 in her personal possession and undisposed of by the will. These facts alone, in my opinion, show that the testator did not intend that paragraph "Second" should have the effect of a residuary clause. I hold that the legacy in question is a specific legacy.

A determination of the first two questions propounded on this construction, it seems to me, is an answer to the third.

Section 2684 of the Code of Civil Procedure so far as material provides that "Articles not necessary for the support and subsistence of the family of the deceased, or not specifically bequeathed, must be first sold; and articles so bequeathed must not be sold until the residue of the personal estate has been applied to the payment of debts."

It follows in the estate under consideration that the property which is the subject of the general legacy contained in paragraph "First" of the will must be applied to the payment of debts and of funeral and testamentary expenses, if they exceed the sum of $225, before the application thereto of the property

mentioned in the specific legacy contained in paragraph "Second" thereof.

I construe the will in accordance with the above conclusions. Settle decree accordingly.

Decreed accordingly.

NOTE ON CONDITIONED LEGACIES.

CONDITIONS UPHELD BY THE COURTS.

The testator may impose any conditions that he pleases so long as they are not contrary to public policy or otherwise illegal, such as that an absent beneficiary on return within a certain time. (Conner v. Sheridan, 116 Wis. 666.)

That a legatee bury the testatrix in a certain cemetery. (Matter of Barrett, 10 Misc. 491.)

That the beneficiary should be in the testator's employ at the time of his decease. (White v. Massachusetts Inst. of Tech., 171 Mass. 84.)

That in the case of a legacy to a church a certain minister should remain for a certain time. (Caw v. Robertson, 5 N. Y. 125.)

That a certain vestment should be worn in church service. (In re Robinson, 1 Ch. 95. See also Dundee v. Dundee, 4 Macq. 228.)

That in the case of a devise of a building to be used for the purposes of a library, the name of the testator should be engraved on a marble slab to be placed and kept over the main entrance. (Jones v. Habersham, 107 U. S. 174.)

That children should be reconciled with their mother. (Page v. Frazer, 14 Bush [Ky.] 205.)

That the legatee, a charitable society, should undertake in writing to the executors to have certain vaults in a cemetery painted periodically. (Roche v. M'Dermitt, [1901] Ir. 394.)

That a partnership should be formed. 537.)

(McCallum v. Riddell, 23 Ont.

That the devisee or legatee should make a will in favor of a certain person. (In re Turner, 4 Ont. L. Rep. 578.)

That the money bequeathed should be needed by reason of sickness or misfortune. (Garvey v. Garvey, 150 Mass. 185, 22 N. E. 889.)

A will may limit the time when the legatee shall have an absolute interest, as on majority or otherwise. (Calvert v. Boullemet, 46 La. Ann. 1132, 15 So. 363.)

And it may make a legacy or devise dependent upon the condition of the estate. (Kirkman v. Mason, 17 Ala. 134.)

A will may make a legacy or devise dependent upon the birth of certain heirs. (McMasters v. Shellito, 14 Pa. Super. Ct. 303; In re Burrows, 2 Ch. 497.)

A will may make a legacy or devise dependent upon failure or issue. (Crawford v. Clark, 110 Ga. 729.)

A will may make a legacy or devise dependent upon the death of certain persons. (Williams v. Jones, 166 N. Y. 522.)

A will may make a legacy or devise dependent upon claim by the beneficiary. (Stover's Appeal, 77 Pa. St. 282.)

A condition that a legatee shall assist to defend a certain lawsuit against the testator is not void where the will shows upon its face that he believed the suit to have been brought without cause. (Cannon v. Apperson, 14 Lea [Tenn.] 553.)

A conditional legacy to a person on condition that he or she shall not marry is legal. (Hogan v. Curtin, 188 N. Y. 162, 42 Am. Rep. 244; Merriman v. Wolcott, 61 How. Pr. 377.)

Such as a condition a devisee shall not marry a man below her in social position. (Greene v. Kirkwood, 1 Ir. 130.)

That she shall not marry into a certain family. (Phillips v. Ferguson, 85 Va. 509.)

That she shall not marry until a certain age, as twenty-one. (Collier v. Slaughter, 20 Ala. 263. See Onderdonk v. Onderdonk, 127 N. Y. 196, 27 N. E. 839.)

Or she shall not marry without the consent of those interested in the devisee or legatee's welfare. (Collier v. Slaughter, 20 Ala. 263, 27 N. Y. 196.)

The beneficiary may be required to remain single for a certain time only. (Densfield, Petitioner, 156 Mass. 265.)

It has been held that a gift to hold, "So long as she shall remain unmarried" is valid. (Mann v. Jackson, 84 Me. 400, 24 Atl. 886; Harlow v. Bailey, 189 Mass. 208, 75 N. E. 259; Morgan v. Morgan, 41 N. J. Eq. 235, 3 Atl. 63; In re Holbrook, 213 Pa. St. 93.)

A gift intending to provide for the legatee while single may contain a valid condition against marriage. (Harlow v. Bailey, 189 Mass. 208.) A will providing for the support of daughters as long as they remain single and need support is valid. (Trenton Trust Co. v. Armstrong, 70 N.

J. Eq. 572.)

And devises of real estate may be limited in duration by the marriage of the devisee. (Mann v. Jackson, 84 Me. 400; Com. v. Stauffer, 10 Pa. St. 350.)

A testator may devise certain property to one of his children, and pro

vide that, if the child should die without having married, the property should go to another. (Sullivan v. Garesche, 229 Mo. 496.)

Or he may make a devise or bequeath to a person only in the event of his or her marriage. (McClelland v. McClelland, 132 Ky. 234.)

Conditions against the remarriage of the testator's widow are valid. (Chapin v. Cooke, 73 Conn. 72; Chapin v. Marvin, 12 Wend. 538.)

That the legatee shall not forsake the Jewish religion or marry a Christion. (Laurence v. McQuarrie, 26 Nova Scotia, 164; contra, Maddox v. Maddox, 11 Gratt. [Va.] 804.)

A devise or bequest may be conditional on pursuing a certain trade or occupation. (Seeley v. Hincks, 65 Conn. 1.)

A condition held valid that a legatee or devisee educate his children in a particular religious faith. (Magee v. Oneill, 19 S. C. 170.)

A condition that beneficiary should withdraw from the priesthood in the Roman Catholic Church or membership in an order or society connected with such church, held valid. (Barnum v. Baltimore, 62 Me. 275.)

A condition that testator's daughter. could not unite herself to any religious sisterhood or remain attached to such sisterhood, held valid. (Spencer v. See, 5 Redf. Surr. [N. Y.] 542.)

A condition that a legatee should renounce the Roman Catholic priesthood held valid. (Ex p. Dickson, 1 Sim. N. S. 37.)

A codicil revoking the legacy to a testator's daughter if she should become a nun, held valid. (Laurence v. McQuarrie, 26 Nova Scotia, 164.)

A condition that a devisee or legatee should return or reside in a particular place held valid. (Newkirk v. Newkirk, 2 Cai. 345.)

Condition that a married woman should not reside where her husband lived was held valid as obliging her to live separate. (Wilkinson v. Wilkinson, L. R. 12 Eq. 604.)

Condition that beneficiary shall be baptized with, or that he shall adopt and assume a certain name are valid. (Matter of Jackson, 20 N. Y. Suppl. 380.)

Condition that the beneficiary should show to the judge's satisfaction that he is a reformed man, held valid. (Cassem v. Kennedy, 147 Ill. 660.) Or that he shall ceased to be a spendthrift for a certain time. (Burnham v. Burnham, 79 Wis. 557.)

Condition that he shall abstain from the use of intoxicating liquors and tobacco and association with immoral persons, held valid. (Onderdonk v. Onderdonk, 127 N. Y. 196.)

A condition that he shall totally abstain from intoxicating liquors and card playing, held valid. (Jordan v. Dunn, 13 Ont. 267.)

A condition that a girl who has lived with testator shall remain in his family and conduct herself as she has heretofore done until she reaches a certain age, held valid. (Reuff v. Coleman, 30 W. Va. 171.)

A gift over to a child in case her father becomes a drunkard or a vaga. bond, held valid. (Forsyth v. Forsyth, 46 N. J. Eq. 400, 19 Atl. 119.)