2020 Georgia Code
Title 53 - Wills, Trusts, and Administration of Estates
Chapter 4 - Wills
Article 6 - Construction of Will; Testamentary Gifts
§ 53-4-59. Specific, Demonstrative, General, or Residuary Testamentary Gifts

Testamentary gifts may be specific, demonstrative, general, or residuary. A specific testamentary gift directs the delivery of property particularly designated. A demonstrative testamentary gift designates the fund or property from which the gift is to be satisfied but nevertheless is an unconditional gift of the amount or value specified. A general testamentary gift does not direct the delivery of any particular property. A residuary testamentary gift includes all the property of the estate that is not effectively disposed of by other provisions of the will.

(Code 1981, §53-4-59, enacted by Ga. L. 1996, p. 504, § 10.)

- For article discussing problems in construction of instrument conveying gift to a group or class, see 6 Ga. St. B.J. 169 (1969). For article surveying wills, trusts, and administration of estates, see 34 Mercer L. Rev. 323 (1982). For annual survey on wills, trusts, guardianships, and fiduciary administration, see 66 Mercer L. Rev. 231 (2014).

This section modifies former OCGA Sec.53-2-95 by adding definitions of demonstrative and residuary testamentary gifts. The definition of demonstrative testamentary gifts reflects that used by the courts (see, e.g., Lavender v. Cooper, 248 Ga. 685 (1982)).

ANALYSIS

• General Consideration
• Demonstrative Legacies
• General Legacies
• Specific Legacies
• Pleading and Practice

General Consideration

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1863, § 2426, former Code 1868, § 2422, former Code 1873, § 2458, former Code 1933, § 113-808, and former O.C.G.A. § 53-2-95 are included in the annotations for this Code section.

- Will provision which provides that the plaintiff in a case against the executors of the estate, "shall be paid a salary" so long as the plaintiff shall serve as manager of a named business does not purport to make a gift to the plaintiff, and plaintiff's contention that he has a "legacy" under this provision of the will is without merit. A legacy is a gift of personalty by will. Savannah Bank & Trust Co. v. Mason, 209 Ga. 364, 72 S.E.2d 720 (1952) (decided under former Code 1933, § 113-808).

Legacies may be either general, specific, or demonstrative. Owens v. Citizens' & S. Nat'l Bank, 177 Ga. 289, 170 S.E. 196 (1933) (decided under former Code 1933, § 113-808); DuBose v. Box, 246 Ga. 660, 273 S.E.2d 101 (1980);(decided under former Code 1933, § 113-808).

When a bequest made in the codicil gives $1,000.00 in money, it therefore can only be held a general legacy. Greene v. Foster, 178 Ga. 319, 173 S.E. 91 (1934) (decided under former Code 1933, § 113-808).

Presumption is stronger that a testator intends some benefit to a legatee than that the testator intends a benefit only upon the collateral condition that the testator shall remain, till death, owner of the property bequeathed. Young v. Young, 202 Ga. 694, 44 S.E.2d 659 (1947) (decided under former Code 1933, § 113-808).

Demonstrative Legacies

Demonstrative legacy defined.

- Demonstrative legacy is one which designates the fund or property from which it is to be satisfied, but is nevertheless an unconditional gift to the legatee of the amount or value specified. DuBose v. Box, 246 Ga. 660, 273 S.E.2d 101 (1980) (decided under former Code 1933, § 113-808) Lavender v. Cooper, 248 Ga. 685, 285 S.E.2d 528 (1982);(decided under former O.C.G.A. § 53-2-95).

- Demonstrative legacy is one which designates the fund or property from which it is to be satisfied, but is nevertheless an unconditional gift to the legatee of the amount or value specified. That it names a particular fund or other property from which it is to be satisfied is considered to be demonstrative of a convenient mode of payment; if that mode fails, the legacy is to be satisfied out of the general assets of the estate. A demonstrative legacy differs from a general legacy in that it does not, in the first instance, abate upon insufficiency of assets to pay the debts of the estate and the expenses of distribution; it differs from a specific legacy in that there is recourse for its payment from the general assets of the estate in the event of ademption in part or in whole. Owens v. Citizens' & S. Nat'l Bank, 177 Ga. 289, 170 S.E. 196 (1933) (decided under former Code 1933, § 113-808); Young v. Young, 202 Ga. 694, 44 S.E.2d 659 (1947);(decided under former Code 1933, § 113-808).

Demonstrative legacy differs from a general legacy in that it does not, in the first instance, abate upon insufficiency of assets to pay the debts of the estate and the expenses of administration; it differs from a specific legacy in that there is recourse for its payment from the general assets of the estate in the event of ademption in part or in whole. Thomas v. King, 182 Ga. 463, 185 S.E. 820 (1936) (decided under former Code 1933, § 113-808); Young v. Young, 202 Ga. 694, 44 S.E.2d 659 (1947); DuBose v. Box, 246 Ga. 660, 273 S.E.2d 101 (1980) (decided under former Code 1933, § 113-808);(decided under former Code 1933, § 113-808).

Demonstrative legacy is one which designates the fund or property from which it is to be satisfied but is nevertheless an unconditional gift to the legatee of the amount or value specified, and if the designated fund fails, the legacy is to be satisfied out of the general assets of the estate. Thomas v. King, 182 Ga. 463, 185 S.E. 820 (1936) (decided under former Code 1933, § 113-808); Woodall v. First Nat'l Bank, 223 Ga. 688, 157 S.E.2d 261 (1967);(decided under former Code 1933, § 113-808).

General Legacies

1. In General

- Code only defines a general legacy in this statute. Bailes v. Halsey, 179 Ga. 182, 175 S.E. 472 (1934) (decided under former Code 1933, § 113-808).

- When the legacy "is to be raised from his estate," no particular property being designated to pay it, it is general and not specific. Morton v. Murrell, 68 Ga. 141 (1881) (decided under former Code 1873, § 2458).

- When a general money legacy is given, the testator is not to be presumed to have intended to make it dependent upon the existence of a fund merely because the testator has indicated that it is to be paid out of that fund. On the contrary, if the will gives a money legacy, and a particular fund is charged with the payment of it, the presumption is that this only indicates an intention to furnish an additional security for its payment; since, if the fund charged is sufficient, the legacy shall not abate, though the condition of the estate is such that other general legacies are compelled to abate. Tennille v. Phelps, 49 Ga. 532 (1873) (decided under former Code 1868, § 2422).

Courts are not inclined to construe a legacy to be specific under the statute when the question is in doubt. Morton v. Murrell, 68 Ga. 141 (1881) (decided under former Code 1873, § 2458).

- General legacy is one which does not direct delivery of any particular property; it is not limited to any particular asset and may be satisfied out of any property of the same general character belonging to the estate of the testator. DuBose v. Box, 246 Ga. 660, 273 S.E.2d 101 (1980).

General legacy is a gift of something to be furnished out of the testator's general personal estate; it need not form part of the testator's property at the time of the testator's death. Young v. Young, 202 Ga. 694, 44 S.E.2d 659 (1947) (decided under former Code 1933, § 113-808).

- Bequest in the following words, "also notes to the amount of sixteen hundred dollars on K. and C. security, for the purpose of purchasing a plantation for the use of S. etc.," is not a specific legacy, and is not adeemed by the sale and transfer of the notes by the testator in the testator's lifetime. Smith v. Executors of Smith, 23 Ga. 21 (1857) (decided under former law).

- Legacy of the "particular fund" which testator was to receive for the testator's "home place" was not a gift of money to be paid from a specified sum, but it was a gift of a "particular fund," not of part of it, or of a sum to be taken from it, or out of it, but a gift of the whole of "said sum," a particular fund, raised by the sale of a specific legacy. Whitlock v. Vaun, 38 Ga. 562 (1868) (decided under former Code 1863, § 2426).

Money legacy left to the executor of a will, though expressed to be "in addition to the usual commissions obtained by law, and as a full compensation for any extra trouble he may have in executing the will," is a general legacy, and cannot, as a legacy, be exempted from abatement with other general legacies, in case of a deficiency of assets. Greene v. Foster, 178 Ga. 319, 173 S.E. 91 (1934) (decided under former Code 1933, § 113-808).

As a general rule, it is true that a gift of money, to be paid from a specified fund is, nevertheless, a general legacy, and a failure of the fund does not destroy the legacy, but it is unquestionably true that a testator may so charge a money legacy upon a particular fund as to make the legacy follow the fate of the fund. Tinsley v. Maddox, 176 Ga. 471, 168 S.E. 297 (1933) (decided under former Code 1933, § 113-808).

When a general money legacy is given, the testator is not to be presumed to have intended to make it dependent upon the existence of a fund merely because the testator has indicated that it is to be paid out of that fund. Thomas v. King, 182 Ga. 463, 185 S.E. 820 (1936) (decided under former Code 1933, § 113-808).

If the will gives a money legacy, and a particular fund is charged with the payment of it, the presumption is that this only indicates an intention to furnish an additional security for its payment; since, if the fund charged is sufficient, the legacy shall not abate, though the condition of the estate is such that other general legacies are compelled to abate. Thomas v. King, 182 Ga. 463, 185 S.E. 820 (1936) (decided under former Code 1933, § 113-808).

Life estate given by a testator to the testator's widow was a specific legacy. Rachels v. Wimbish, 31 Ga. 214 (1860) (decided under former law).

2. Residuary Legacies

Residuary legacy defined.

- Residuary legacy "is a general legacy into which falls all the assets of the estate after the satisfaction of all other legacies and the payment of all debts of the estate and all costs of administration." Young v. Young, 202 Ga. 694, 44 S.E.2d 659 (1947) (decided under former Code 1933, § 113-808); Woodall v. First Nat'l Bank, 223 Ga. 688, 157 S.E.2d 261 (1967);(decided under former Code 1933, § 113-808).

Code does not provide for any subclassification of general legacies and any attempt to so do would be arbitrary and without authority either by statute or otherwise. Killingsworth v. First Nat'l Bank, 237 Ga. 544, 228 S.E.2d 901 (1976) (decided under former Code 1933, § 113-808).

- Brother and sister were not entitled, under O.C.G.A. § 53-8-15(d), to an order requiring the executor to deed real property left to the brother, sister, and executor as a residual testamentary gift; a residual testamentary gift was a general testamentary gift that, under O.C.G.A. § 53-4-59, did not require the delivery of any particular property. Travis v. Travis, 279 Ga. 847, 621 S.E.2d 721 (2005).

Specific Legacies

Specific legacy defined.

- Specific legacy is one which operates on property particularly designated; a gift of money to be paid from a specified fund is nevertheless a general legacy. Tinsley v. Maddox, 176 Ga. 471, 168 S.E. 297 (1933) (decided under former Code 1933, § 113-808).

Special legacy is one which operates on property specifically designated while a specific legatee, is one to whom is bequeathed a particular thing, as distinguished from all others of the same kind. Regents of Univ. Sys. v. Trust Co., 186 Ga. 498, 198 S.E. 345 (1938) (decided under former Code 1933, § 113-808).

When a will purported to bequeath to the trustees of the University of Georgia the "entire corpus" including accumulated interest, less monthly allowances from the income to four named persons during their lives respectively, and except $100.00 each to two of her husband's nephews, this was a specific legacy to the trustees of the University of Georgia. Regents of Univ. Sys. v. Trust Co., 186 Ga. 498, 198 S.E. 345 (1938) (decided under former Code 1933, § 113-808).

Specific bequest or devise has given as its particular characteristic that it gives or devises to the named legatee a particular article or item of property owned by the testator or in some instances to be acquired by him, which is identified and distinguished from all others of the same nature and which, as stated, may be segregated from the mass of the testator's other property or estate. Henderson v. First Nat'l Bank, 189 Ga. 175, 5 S.E.2d 636 (1939) (decided under former Code 1933, § 113-808).

Special legacy is one that can be separated from the body of the estate and pointed out so as to individualize it, and enable it to be delivered to the legatee as a thing sui juris. The testator fixes upon it, as it were, a label, by which it may be identified and marked for delivery to the owner, and the title to it, as a separable thing, vests at once, on the death of the testator, in the legatee. Young v. Young, 202 Ga. 694, 44 S.E.2d 659 (1947) (decided under former Code 1933, § 113-808); Woodall v. First Nat'l Bank, 223 Ga. 688, 157 S.E.2d 261 (1967);(decided under former Code 1933, § 113-808).

Failure by the testator to particularize the $1,000.00 bonds bequeathed to stated children, forbid their being classified as specific legacies, and, consequently they do not fail but are payable as general legacies, $1,000.00 to each legatee, out of the general assets of the estate, including the proceeds from the sale of the three bonds on hand after the payment of debts, if any, and the expenses of administration. Young v. Young, 202 Ga. 694, 44 S.E.2d 659 (1947) (decided under former Code 1933, § 113-808).

Fact that the will provides for the legal title to particular property to be held by a trustee for the benefit of the widow does not prevent the legacy from being a specific one. It is the particular designation of the property itself, not who holds the property's legal title, which makes the legacy specific. Woodall v. First Nat'l Bank, 223 Ga. 688, 157 S.E.2d 261 (1967) (decided under former Code 1933, § 113-808); Killingsworth v. First Nat'l Bank, 237 Ga. 544, 228 S.E.2d 901 (1976);(decided under former Code 1933, § 113-808).

Specific legacy is one that can be separated from the body of the estate and pointed out so as to individualize it, and enable it to be delivered to the legatee as a thing sui juris. Killingsworth v. First Nat'l Bank, 237 Ga. 544, 228 S.E.2d 901 (1976) (decided under former Code 1933, § 113-808).

Specific legacy means a devise which distinguishes the devised property from all other property of the same nature and thereby enables it to be separated from the body of the estate and delivered to the devisee as a thing sui juris. Peacock v. Owens, 244 Ga. 203, 259 S.E.2d 458 (1979) (decided under former Code 1933, § 113-808).

Specific legacy gives to the named legatee a particular article or item of property owned by the testator, which is identified and distinguished from all others of the same nature, and which may be segregated from the mass of the testator's other property or estate. DuBose v. Box, 246 Ga. 660, 273 S.E.2d 101 (1980) (decided under former Code 1933, § 113-808).

Specific devise of lands carries with it to the devisee the income, profit, or increase of the specific legacy from the date of the testator's death. Cheshire v. Keaton, 184 Ga. 29, 190 S.E. 579 (1937) (decided under former Code 1933, § 113-808).

There is no inhibition against giving a special legacy to several people, or in making a special legacy to all of the children of the testator. The only question is whether the legacy operates on specific property. Greene v. Foster, 178 Ga. 319, 173 S.E. 91 (1934) (decided under former Code 1933, § 113-808).

- Legacy is not a specific legacy, which will be adeemed when it does not bequeath a bond so labeled and sequestered as to be distinguished from another bond of a similar kind it is a demonstrative legacy and does not fail if the subject matter be not in existence on the death of the testator. Young v. Young, 202 Ga. 694, 44 S.E.2d 659 (1947) (decided under former Code 1933, § 113-808).

If the particular property described in the specific legacy is disposed of by the testator during the testator's life or cannot be located at the testator's death, it is adeemed and the legatee has no claim on the estate for the value of the legacy. DuBose v. Box, 246 Ga. 660, 273 S.E.2d 101 (1980) (decided under former Code 1933, § 113-808).

Courts are inclined to construe a legacy to be general and not specific to the end that an ademption may not result. Bailes v. Halsey, 179 Ga. 182, 175 S.E. 472 (1934) (decided under former Code 1933, § 113-808).

In cases of real doubt as to the nature of the bequest, whether general or special, if the intention of the testator in respect thereto cannot be clearly ascertained from the will, the law will declare it general and not special. Henderson v. First Nat'l Bank, 189 Ga. 175, 5 S.E.2d 636 (1939) (decided under former Code 1933, § 113-808).

In determining whether a particular bequest is general or special, resort must be had not alone to the particular item creating it, but to the will as a whole, in order to ascertain the intention of the testator which if it may be there discovered must control. Henderson v. First Nat'l Bank, 189 Ga. 175, 5 S.E.2d 636 (1939) (decided under former Code 1933, § 113-808).

When the question is in doubt the courts are not inclined to construe a legacy to be specific. Young v. Young, 202 Ga. 694, 44 S.E.2d 659 (1947) (decided under former Code 1933, § 113-808).

RESEARCH REFERENCES

Am. Jur. 2d.

- 80 Am. Jur. 2d, Wills, § 1294 et seq.

- 97 C.J.S., Wills, § 1655 et seq.

- When legacy is regarded as demonstrative, 6 A.L.R. 1353; 64 A.L.R.2d 778.

What included in terms "notes," "securities," etc., in a bequest, 52 A.L.R. 1097.

Effect of designation of particular property in residuary clause of a will, 128 A.L.R. 822; 72 A.L.R.2d 1170.

Disregarding corporate entity, or charging a specific legacy of stock of close corporation, in order to pay general legacy for which assets of estate are otherwise insufficient, 144 A.L.R. 546.

Title of, or right to possession by, specific legatee prior to order or decree of distribution, 150 A.L.R. 91.

Validity and effect of devise of a "house," or "lot," etc. (there being two or more) or devise of specified acreage or other quantity out of a larger tract or from testator's estate, with or without a right of selection expressed, 157 A.L.R. 1129.

Satisfaction or ademption of general legacy by inter vivos gift, transfer, or payment to the legatee or another, 26 A.L.R.2d 9.

When legacy is regarded as demonstrative, 64 A.L.R.2d 778.

Change in stock or corporate structure, or split or substitution of stock of corporation, as affecting bequest of stock, 46 A.L.R.3d 7.