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Specific bequests in Wills

There are three types of testamentary gifts: general, specific, and demonstrative. Busch v. Plews, 19 N.J. Super. 195, 204 (Ch. Div. 1952), aff'd 21 N.J. Super. 588 (App. Div. 1952), aff'd 12 N.J. 352 (1953). A general legacy is "a bequest of personal property payable out of the general assets of the testator's estate rather than from specific property included therein." Plews, 12 N.J. at 356 (citing In re Low, 103 N.J. Eq. 435, 437 (Prerog. Ct. 1928)).
A specific legacy is "a bequest of personal property in specie and not payable from other assets of the estate." Ibid. (citing Camden Trust Co. v. Cramer, 136 N.J. Eq. 261, 270 (E. & A. 1945)). A demonstrative legacy is a "bequest payable primarily out of specified property but chargeable against other assets of the estate if that property is insufficient . . . ." Ibid. (citing Cramer, 136 N.J. Eq. at 270).
To render a bequest specific, a testator must have contemplated the subject of a legacy to be a specific identical thing. Plews, 19 N.J. Super. at 205. Absent such an intention, "a legacy will be deemed either general or demonstrative, depending upon whether a fund or particular property is indicated as the primary source of its payment." Ibid.; see also Cramer, 136 N.J. Eq. at 270 (stating that "[i]f the subject-matter is not sufficiently individuated, the legacy is treated as general or demonstrative"). Since specific legacies are subject to ademption and thus typically frustrate the testator's donative intent, "courts lean against construing legacies as specific." Plews, 12 N.J. at 356 (citing Cramer, 136 N.J. Eq. at 270).
"In deciding whether a legacy is specific or general, the intention of the testator must control, as it must [control] the decision of every other question involving the construction of wills." Zorner v. Foth, 124 N.J. Eq. 508, 509 (Ch. Div. 1938). "There is no technical arbitrary rule requiring the use of particular words or expressions to make a bequest specific." Ibid. "The words of exclusion must" furnish "an almost infallible test of the meaning of the testator." Ibid.

A Specific Bequest or devise is a testamentary gift of a specific item of property (e.g., a diamond engagement ring, Joe DiMaggio autographed baseball) that can be easily identified and distinguished from all other property in the testator’s estate.