Heslet v. Heslet. But if this had been otherwise there was no ambiguity in the will upon the subject in question requiring construction. Ten-twelfths of the proceeds of a sale to be made is a sum as certain in the eye of the law as any that can be stated in dollars. It is ten-twelfths of the amount of the price brought, less the expenses of the sale. And this meaning could not be affected by the widow's statutory right, although its operation might. But the construction under consideration, if otherwise proper, is erroneous as a statement of the operation of these bequests, in that it is confined to them, notwithstanding the fact that the widow's statutory right, if it diminished these, would diminish the other pecuniary legacies also in the same proportion. The decree directs that these, as thus reduced, be paid pro rata with the others, which are not so reduced, thus making them too small relatively, even if they were to be paid pro rata, by just the amount of the reduction. But they are not to be so paid unless they are general legacies. It is deemed unnecessary to refer to many of the cases cited in the briefs upon the distinctions between general and specific legacies. Most of them relate to bequests of money due or becoming due to the testator, and secured or evidenced by instruments in writing; in which the inquiry seems to be, whether the gift is of such instrument or of the money in the condition stated, that is, of the debt itself, or is of a certain amount of money, and the fact and manner of its security are stated as incidental or as indicative merely of the source from which it is to be most conveniently realized; and the rule agreed on is that the former is specific and the latter general, but in determining the subject of the gift, in view of this distinction, different courts have put different constructions upon language which seems to be of very nearly, if not quite, the same import. Others of these cases are upon bequests of particular shares of stock in incorporated companies, which are uniformly held to be specific. Here the bequests are of onethird and two-thirds respectively of what the testator calls his homestead; which, as we have seen, are tantamount to these proportions of his interest in the particular real estate referred to; that is, one-third and two-thirds of ten-twelfths of the pro Heslet v. Heslet. ceeds of its sale; and the question is whether these are general or specific. Perhaps the most intelligible and satisfactory description of a specific bequest is given by Lord HARDWICKE in Purse v. Snaplin, 1 Atk. 417, as one which specifically describes the property or interest bequeathed and distinguishes it from all others of the same kind. See, also, Bouvier's Law Dict. Vol. ii. p. 17; Hinton v. Pinke, 1 P. Wms. 540, note 1; Stephenson v. Dawson, 3 Beav. 342; Stout v. Hast, 2 Halstead, 214; Towle v. Swasey, 106 Mass. 106. So money, if sufficiently distinguished, may be the subject of a specific bequest, as money in a certain bank, or in such a chest, Ibid. And money the proceeds of any property or interest so distinguished, is as clearly distinguished as such property or interest itself. Redf. on Wills, Vol. ii. Ch. 1, § 7, ¶ 22 (p. 145 of 2d Ed.); Roper on Legacies, Vol. i. Ch. 3, §3, p. 199; Page v. Leapingwell, 18 Ves. 463; Creed v. Creed, 11 Cl. & Fin. 491; Stout v. Hast, supra; Chase v. Lockerman, 11 Gill. & J. 185; Gilbrath v. Winter, 10 Ohio, 64. Thus it appears that the bequests by John Heslet to his children being the proceeds of real estate described to be sold, were specific, and the bequests by Joseph of the same interests, or of any specified part thereof, must therefore, by force of the terms, be specific also. But counsel for appellee insist that to be specific the bequest must be something in the testator's possession at the time of making the will, and at the time of his death, citing Bouvier, supra, and that here he had not at either of those times the possession or the enjoyment of the particular thing sought to be bequeathed, but was simply a legatee expectant under the will of his father. Although the proceeds of the sale were in expectancy the right to them was vested in the testator at the time of the execution of the will and at the time of his death. Such an interest is the subject of sale or gift inter vivos, why not also of specific bequest? How does it differ in principle from a legacy of the money to become due upon a particular mortgage? Trustees of Schools v. Kay. What one has contracted for he is regarded as possessed of, for testamentary disposition. Redf. on Wills, Ch. 1, § 6, ¶ 12 (p. 122), and notes and the case cited and quoted from in note 47, on p. 123; Collison v. Girling, 4 My. & Cr. 63. In our opinion these are specific legacies, to be paid in full. We do not think the testator's real estate or any interest therein was charged with the payment of legacies. The intention to create such charge must be either expressly declared, or fairly and satisfactorily inferred from the language and disposition of the will-as where he directs the debts and legacies to be first paid, or devises real estate after the payment of legacies, or the remainder after such payment. Heslop v. Gatton, Exec'r, etc., 71 Ill. 528; Reynolds v. Reynolds, Exec'r, 16 N. Y., 259; Lupton v. Lupton, 2 Johns Chy. Rep. marg. p. 623; Keeling v. Brown, 5 Ves. 359. No such expression or implication appears in this will. In all the cases when such charge has been held to be made, so far as we are aware, legacies are mentioned eo nomine or by clear description, or reference, distinguishing them from debts. We do not think it proper to indicate any views upon points. not passed on by the circuit court, but for the errors above stated the decree is reversed and the cause remanded for further proceedings in conformity herewith. Reversed and remanded. TRUSTEES OF SCHOOLS, T. 27, N. R. 13, W. of 3 P. M. V. WILSON S. Kay. 1. TRUSTEES-SETTING OFF SCHOOL DISTRICT-MANDAMUS.-Under the third clause of section 33 of the school law, as amended by the act of 1879, it was discretionary on petition to the trustees to set off territory from one district to another, and therefore they could not be compelled to do so by mandamus. 2. FORMER OPINIONS NOT IN POINT.-That the opinions of the Supreme Court to the contrary arose under the statute of 1874, and are not in point. Trustees of Schools v. Kay. APPEAL from the Circuit Court of Iroquois county; the Hon. FRANKLIN BLADES, Judge, presiding. Opinion filed December 21, 1880. Mr. M. B. WRIGHT, for appellant; that where an inferior tribunal has a discretion and exercises it, the court has no jurisdiction to control it by mandamus: The People v. Curyea, 16 Ill. 547; High on Extraordinary Remedies, Sec. 325; The People v. Forquier, Breese, 104; County of St. Clair v. People, 85 Ill. 401; People v. LaSalle County, 84 Ill. 307. A party applying for a writ of mandamus, must show a clear right to the relief sought, and that he has no other adequate remedy: People v. Huntoon, 71 Ill. 536; People v. Foss, 88 Ill. 141; People v. Chicago, 53 Ill. 424; School Inspectors v. Grove, 20 Ill. 532; People v. Wiant, 48 Ill. 263. When the writ is to enforce a public right, or to compel the performance of a public duty, the people are regarded as the real party: County of Polk v. the State, 11 Ill. 202. A writ of mandamus will not be awarded, except where the right of the relator is clear, and the party sought to be coerced is bound to act: The People v. Hatch, 33 Ill. 9; The County of St. Clair v. The People, 85 Ill. 396; The People v. Lieb, 85 Ill. 485; The People v. C. & A. R. R. Co. 55 Ill. 95; The People v. Foss, 88 Ill. 141. Messrs. KAY & EUANS, for appellee; that the trustees have no discretion under the third clause of section 33, cited The Trustees of Schools v. the People, 76 Ill. 621; School Trustees v. The People, 71 Ill. 559. As to the right of the relator to present the petition: The Village of Glencoe v. The People, 78 Ill. 382. PLEASANTS, J. Petition by appellee filed Nov. 4, 1879, for mandamus to compel the trustees to set off territory from one district to another, under the 3d clause of the 33d section of the school law of 1877. Hurd's R. S. 1877, p. 900. A demurrer thereto was overruled and the writ awarded. Fuller v. Bates. all the voters in the territory desiring to be set off, while the others providing for changing the boundaries of school districts and creating new districts in other cases, require a petition of only a majority. By the sixth clause of said section discretionary powers are granted to the trustees "in the matter of changing the boundaries of school districts, and in creating new districts, when petitioned by a majority of the legal voters to do so," which therefore did not apply to proceedings under the third clause. But the act of 1879 (Laws of 1879 p. 287), amending said section in several particulars, which the circuit court and counsel seem to have overlooked, extends this grant of discretionary power to the trustees in the matter aforesaid, "when petitioned as herein before provided," thus reaching the proceedings under the third clause, as well as the others. Mandamus therefore would not lie, and the demurrer should have been sustained. The People, ex rel. v. The Board of Supervisors of LaSalle County, 8 Ill. 307; County of St. Clair v. The People, 85 Ill. 401; Hildreth v. Heath et al. 1 Bradwell, 85-6. The case of the Trustees of Schools v. The People, 76 Ill. 621, arose under the act of 1874, which was mandatory, and is not in point. The judgment of the circuit court is reversed and the cause remanded. Reversed and remanded. BRIGGS FULLER V. JOHN BATES. 1. APPEAL-CERTIFICATE OF IMPORTANCE-REFUSAL OF.-The judg ment of the court below was affirmed. An appeal was prayed to the Supreme Court and motion made for a certificate of importance, the judgment being under $1,000. The certificate was refused but the order allowing the appeal was entered, the court stating that there was no question involved which would allow it to grant a certificate. The case was docketed in the |