Page:Harvard Law Review Volume 10.djvu/481

455 RECENT CASES. 455 Property — Wills — General and SPEcrpic Legacies. — The testator be- queathed to several legatees in different amounts shares of stock in a certain corpor- ation, using the language, " Shares of the stock of the X corporation now owned by me, and standing in my name on the books." These bequests amounted to 2,000 shares. When the will was made the testator owned 3,200 shares. At his death all but 200 of these had been sold. Held, that the legacies were not specific, and there- fore not adeemed. Maho/iey v. Holt, 36 Atl. Rep. i (R. I.). Though formerly a matter of some doubt, it is now everywhere admitted that, if a legacy is specific, it is subject to ademption during the testator's life, and this utterly regardless of the testator's intention. In re Bridle, 4 C. P. D. 336. But the difficult question in the principal case is one of construction, in determining whether the words of the will are such as to constitute a specific legacy. Upon this point it would seem that the court might have reached a different conclusion. The language of the testator appears to indicate pretty clearly that he intended the shares to be taken from the number which he owned at the time of making the will ; and the ditificulty felt by the court, that any one lot of shares could not be identified and distinguished from other shares contained in similar bequests, has not been considered an insuperable objection to holding legacies of this kind specific. Williams on Executors, 9th ed., 1027, 1028. At the same time, the tendency has always been toward a construction in favor of regarding legacies as general rather than specific in doubtful cases. Statute of Limitations — Accrual of Cause of Action. — i%/i/, a cause of action against an abstracter of titles for giving a wrong certificate of title accrues at the date of the delivery, and not at the time the negligence is discovered or con- sequential damages arise, and action is barred by a three-years statute of limitations, though the plaintiff was ignorant during that time that any mistake had been made. Provident Loan Trust Co. v. Walcott, 47 Pac. Rep. 8 (Kan.). There is hardship in this case, but an analysis of the grounds of the decision proves its correctness in point of legal principle. The cause of action is the breach of the contract to provide a careful abstract. That breach occurs when a negligently prepared abstract is delivered. From that moment t?he statute begins to run, and lack of knowledge on the part of the plaintiff cannot affect its operation. 2 Greenleaf On Evidence, § 435. * Suretyship — Guaranty of Note — Burden of Proof. — Defendant trans- ferred and guaranteed to plaintiff a note made in Wisconsin, in which State the maker resided at the time of the execution and of the guaranty. Before the maturity of the note, the maker removed from the State. Plaintiff sued on the guaranty. Held, that the burden was on the defendant to show that the maker had property in Wisconsin out of which the note could be collected, and not upon the plaintiff to prove that he had no such property within the State. Fall v. Youmans, 69 N. W. Rep. 697 ( Minn.). In White v. Case, 13 Wend. 543, it was held, under similar circumstances, that, though the plaintiff was not bound to pursue the maker when the latter had left the State, still it was incumbent on the plaintiff to prove that he had exhausted the remedy afforded by the laws of the State before he could recover from the guarantor. As the holder must show that the debt is not collectible from the maker before he can recover from the guarantor for collection {Sylvester v. Doivner, 18 Vt. 32), the burden of proving that the maker has no assets within the jurisdiction is upon him, and the mere fact that the maker has left the State would not seem sufficient to relieve him of such burden. The doctrine of the majority of courts, that although the pursuit of an action to judgment, with a return of nulla bona, is one of the extreme tests of due dili- gence, yet such diligence may be satisfied by other means, as proof of insolvency {Camden v. Doremus, 3 How. 515) would seem to apply equallv whether the maker is within or without the jurisdiction, and would relieve the plaintift from proving a resort to service by publication in all cases where the maker had left the State. Suretyship — Release by Extension of Time. — Held, that an agreement by the holder of a note to extend the time of payment indefinitely, though based on valuable consideration, does not discharge the surety. Bunn v. Commercial Bank, 26 S. E. Rep. 63 (Ga.). When bankruptcy is imminent it may sometimes happen that a failure to demand immediate payment will involve the loss of the debt. Therefore, if the creditor does not press his claim, it is the right of the surety to discharge the obligation and come down at once on the debtor. This is admitted by the court, and that an agreement to forbear for a definite time would discharge the surety. It would seem that he is equally deprived of his rights by an extension for an indefinite time, i. e. a reasonable time. See Older show v. King, 2 II. & N. 517 ; Bank v. Parker, 130 N. Y. 415 ; Hotve. Tag- g'^f'l, ^3Z Mass. 214. The doctrine that a surety is discharged by an extension of