OPINION OF THE COURT BY JUDGE CARROLL-Affirming. In 1905 J. S. G. Farris and seven other persons procured from the Whitley county court land warrants for two hundred acres each, and caused the surveyor of the county to survey for each of them that much land. Afterwards, the surveyor issued to each of the parties certificates for the land surveyed, which were filed in 1906 with the State Auditor. After this, the appellees Boyd, and others, as the assignees of W. C. Gillis, filed with the State Auditor a copy of a survey made in the name of Gillis in 1851 for 2,000 acres, and the Auditor issued a patent to the assignees of Gillis for this boundary of land. This 2,000 acres embraces the surveys made by appellants, and for which they sought to have the State Auditor issue to them patents. This suit was brought in the Franklin circuit court by Farris and Hayes, assignees of these eight surveys, against James, State Auditor, and the Boyds, for the purpose of compelling the Auditor to issue to them patents for the eight tracts of land before mentioned. They also asked that the patent issued to the Boyds on the Gillis survey be cancelled, and that the Boyds be enjoined from using said patent in an action pending in the Whitley circuit court between the Boyds and Farris, and others, relating to the land covered by these patents.

Upon general and special demurrers filed by the State Auditor and the Boyds, the petition was dismissed, and an appeal prosecuted.

The facts of this case are substantially similar to the facts in the case of Commonwealth, for the use of Bryant v. James, Auditor, 138 Ky., 472; and upon the authority of that case the judgment herein is affirmed.

1.

Durham's Admr, et al. v. Clay.

(Decided February 7, 1911.)

Appeal from Nicholas Circuit Court.

Will-Residuary Clause-General-Particular.-A residuary clause in a will may be either general or particular. It is general when the language used by the testator is broad enough to pass all undisposed of property of whatever kind or nature. It is particular when, from the language used, it is apparent that the testator intended to limit the property covered by it to the residuum of certain specified properties.

2.

Same. A residuary clause giving to A "the money left of the sale of stock," is particular in its nature, and would not cover the proceeds of real estate.

3. Real Estate Proceeds Title.—A bequest of the proceeds of certain real estate does not pass the title to the land to the beneficiary, but only entitles him to the proceeds thereof. It is personalty.

4. Real Estate When Adeemed.-When the proceeds of real estate are bequeathed to designated persons, the bequest is not adeemed by a sale of the land by the testator, so long as the money realized from the sale can be traced out and identified.

5.

Same. Slight changes in personal property during the life of the testator do not operate to adeem the bequest so long as the property remains in kind or specie and can be identified.

6. Same. The proceeds of land bequeathed, which is afterwards sold by the testator, and invested in mortgage or land notes, is not adeemed so long as the money realized from the sale can be traced and identified. But where such proceeds are invested in other lands, the bequest is adeemed.

STROTHER & WYCOFF,

CHAS. D. GRUBBS, ROBERT H.

WINN and J. J. OSBORNE for appellants.

HOLMES & ROSS and JOHN P. McCARTNEY for appellee.

OPINION OF THE COURT BY JUDGE LASSING-Reversing.

John B. Durham, of Nicholas county, Kentucky, was twice married. By his first wife he had three children. By the second wife he had no children. His second wife had some property of her own, and in March, 1904, made a will, in which she disposed of this property. Thereafter her husband died, and by his will gave to her sixtytwo acres of land. In January, 1905, after she had acquired this land from her husband's estate, she wrote a codicil to her will, in which she attempted to dispose of this land. Some time following the execution of this codicil, she sold the land, and invested the proceeds, along with other money which she then had in bank, in purchase-money and mortgage notes, and land.

Upon her death her will was duly probated, and this litigation grows out of a dispute arising among the respective claimants to the estate left by her. It is the contention of the grandchildren, they being the only descendants and heirs-at-law of the three children of her husband's first wife, that they take the money which the testatrix realized out of the sale of the land; whereas, the heirs-at-law of testatrix claim that they take the

vol. 142-4.

proceeds of this sale as undevised estate; and the devisee, Sallie Scott Clay, insists that all of this property passes to her under the residuary clause in the original will. The trial judge was of opinion, and so held, that the proceeds of the sale of the land all passed under the residuary clause in the original will to Sallie Scott Clay, and the heirs-at-law of testatrix, as well as those of her husband, named as devisees in the codicil, ask a reversal of the judgment of the lower court, and that such construction be placed upon the will and its codicil as will award them the property in litigation.

The following is the will and codicil:

"First. I give and bequeath to Sallie Harper Scott (called by adoption Sallie Durham), the sum of $500, more or less, now in the Deposit Bank of Carlisle, which is mine by inheritance. Should I invest said $500 in any kind of property, then the property is to be hers at my death.

"I also give and bequeath to said Sallie Harper Scott, my solid gold watch, my sewing machine, my largest zinc trunk with contents, also, as much of my bedding, consisting of beds, bedding, etc., as she may desire, also one pair of gold-rimmed glasses and her selection of dishes outside of those mentioned in this will, also wardrobe.

"Second. I give and bequeath to Bert Durham two shares in the Morefield Deposit Bank, and one pair of gold-rimmed glasses and my large dictionary, also my china press and book case.

"Third. I give to John Bascom Durham, two shares in the Moorefield Deposit Bank, and a zinc trunk, second size which he once asked of me.

"Fourth. I give to Annie Durham my silver tea set and what dishes she and said Sallie Scott may agree upon, there must be no dispute or hard feelings indulged in over my effects.

"Fifth. I give to Allie Graves Grubbs my self-interpreting Bible should she die without heirs, it is to be given Allie Woodson Armstrong.

"Sixth. I give to Jennie Graves Armstrong my large Japan bowl and large cake bowl and silver ladle.

"Seventh. I give to Susan Gregory a set (one-half dozen) of silver teaspoons with 'Lane' engraved on bowl of each spoon. To Mae Stone one silver souvenir spoon with 'Lane' engraved in bowl.

"Last. There are many other things not specified in the foregoing writing that I wish given as keepsakes to such of my friends as desire them.

"I desire that my stock may be sold and the sum of $25 be given the Christian church at Bethel where my membership now is.

"I also desire a heifer calf, or the money to buy one be given Ellen colored, daughter of Henry (Dora) Owings. To Lucy Owings some of my clothing,

ete.

"The money left of the sale of stock and the legacies herein mentioned is to be paid over to Sallie Harper Scott, the girl above mentioned, whom I raised. It is my desire and prayer that each one who is heir by this will may be satisfied. I beseech Bert Durham and John Bascom Durham to see that said Sallie Harper Scott never suffers for the necessities of life while they live.

"Written under my hand this day, March third, nineteen hundred and four.

66

(Attest) "ELLEN LANE DURHAM."

"Codicil, March 18, 1905.

'Since making my will in March, 1904, I have fallen heir by the death of my dear husband, John B. Durham, to sixty-two acres of land lying southwest of the home tract on which said John B. Durham resided. The boundary of which is mentioned in the will of said John B. Durham. I do hereby will to Bert Durham during his life, one-half interest in said lands, and to Sallie Scott, the girl we raised, an interest in the other half of said tract as long as she remains single. Should said Sallie Scott marry, Bert Durham is to use her half of the land during his life and to see that said Sallie Scott never suffers for the necessities of life. At the death of Bert Durham the land is to be sold and the money equally divided among John B. Durham, Charles Ditzler Durham, Jennie Armstrong and Allie Grubbs. Should Jennie Armstrong die before Bert Durham, her daughter, Allie Woodson Armstrong, is to be her heir and the money paid to her when she becomes of age."

We will first determine the rights of appellee, Sallie Harper Scott Clay, for, if the judgment as to her is correct, it is unnecessary to enter upon a consideration of the controversy between the Durham and the Lane claimants. The clause of the will, under which appellee claims title is found in the latter part of the original will, and is in this language:

"The money left of the sale of stock and the legacies. herein mentioned is to be paid over to Sallie Harper Scott, the girl above mentioned, whom I have raised."

For her it is argued that this residuary clause is general in its nature, or at least general or broad enough to support her claim to the proceeds of the sale of this after-acquired land. Page on Wills, section 565, defines a residuary clause of a will to be:

"That part which makes disposition of the residuum of part or all of testator's property, that is that part thereof not otherwise disposed of by will. A general residuary clause disposes of all of the residum of testator's property; while a particular residuum clause disposes only. of the residuum of certain specified property."

Schouler, in the recent edition of his work on Wills and Administration, page 248, section 519, says:

"A residuary bequest of personal property operates upon all the personal estate which the testator may have at bis death, and prima facie carries with it not only whatever remains undisposed of by his will, but whatever despite the will fails of disposition in the event from one cause or another. Nevertheless, this presumption is liable in any case to be rebutted; and where the will shows that the testator meant that the residuary gift should take only a limited effect, that meaning must operate.'

Section 4839, Kentucky Statutes, provides that:

"A will shall be construed, with reference to the real and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator unless a contrary intention shall appear by the will."

There being no contrary intention expressed in the will under consideration, and treating it as speaking of a date immediately preceding the death of testatrix, the proceeds of sale of this real estate undoubtedly pass under this residuary clause if it is general in its nature, and the codicil does not stand.

When this will was written testatrix was disposing of many articles of personal property, including some money in bank. The money in bank she had given to Sallie Harper Scott in item one of her will. In the last clause she recites that there are many other things not specified in the foregoing writing-evidently by "things" referring to articles of household furniture and wear that she wished given as keepsakes to her friends. She then directs that certain stock which she owns be sold, and, of the proceeds realized from this sale, $25 given to the church; and this bequest to the church