Title: The hand-book of the Law of Legacies: Tyas' legal hand-books
Author: Anonymous
Language: English
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LEGACIES ***



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  TYAS’ LEGAL HAND-BOOKS.


  The Hand-Book
  OF THE
  LAW OF LEGACIES;

  CONTAINING

  A STATEMENT OF THE NATURE OF LEGACIES,
  AND THE
  ACCIDENTS TO WHICH THEY ARE SUBJECT;

  TOGETHER WITH

  THE RIGHTS OF LEGATEES,
  AND
  THE CAUSES AND MANNER OF THE ADEMPTION, CUMULATION,
  AND ABATEMENT OF THEIR BEQUESTS.

  “Jam progressu futura.”

  LONDON:
  ROBERT TYAS, 8, PATERNOSTER ROW.

  AND SOLD BY
  R. HASTINGS, 13, CAREY STREET, LINCOLN’S INN.

  MDCCCXLI.



  LONDON:
  CLARKE, PRINTERS, SILVER STREET,
  FALCON SQUARE.



PREFACE.


The utility of a little work of this kind is so obvious, that it needs
no other setting forth than that given in the introductory observations
with which it opens. It professes only to be a cautious guide, to make
men acquainted with their rights, and not a professional assistant to
obtain them; for it has ever been the author’s opinion, that there
would be less litigation and distrust if there were more knowledge,
and more probity if there were more intelligence. A difference rightly
explained is half settled, and a mind enlightened is a mind directed
as well as sustained; and if the few following pages should make any
of the community better informed as to their claims and position, with
respect to their deceased relatives, he feels that he will have saved
them, and those with whom they have to do, not a little trouble, and
perhaps unpleasantry; and that he has contributed to the good-will as
well as the information of his readers.



CONTENTS.


                                                    PAGE

  CHAPTER I.                                           1

    Introduction.--Legacies and Legatees               1

    Legacies and Legatees                              3


  CHAPTER II.                                          9

    The Assets                                         9

    Real Assets                                       10

    Personal Assets                                   15

    Legal Assets of Choses in Action                  21

    Equitable Assets                                  23

    Contingent and Dependent Assets                   27


  CHAPTER III.                                        35

    Marshalling of the Assets                         35


  CHAPTER IV.                                         43

    Legacies.--General, Specific, Lapsed, Vested,
        Demonstrative                                 43

    General Legacies                                  44

    Specific Legacies                                 45

    The Vesting of Legacies                           52

    The Lapsing of Legacies                           54

    Demonstrative Legacies                            56


  CHAPTER V.                                          58

    Assent to Legacies                                58

    Assent of the Executor                            58

    Nature of the Assent                              61

    Absolute and Conditional Assent                   63


  CHAPTER VI.                                         67

    Payment of Legacies                               67

    The Legatees                                      68

    To whom Legacies should be paid                   73

    Duty upon Legacies                                80

    Interest on Legacies                              82


  CHAPTER VII.                                        85

    The Ademption, Cumulation, and Abatement
        of Legacies                                   85

    The Ademption of Legacies                         86

    Cumulation of Legacies                            89

    Legacies in Satisfaction of Debt                  90

    Abatement and Refunding of Legacies               92


  CHAPTER VIII.                                       94

    Legacies to Executors, and Legatees’ Remedies
        against them                                  94

    Legatees’ Remedy against the Executor             96

    Rates of Duty payable on Legacies, Annuities &c.  97



THE

LAW OF LEGACIES.



CHAPTER I.

INTRODUCTION.--LEGACIES AND LEGATEES.


When it is known that the gross sum upon which the several rates of
legacy-duty are paid in this country amounts to more than £40,000,000
per annum, and that, during the last thirty years, more than
£1,000,000,000 of money have been consigned from the hands of those
who held it to those of their friends and successors, some notion will
be obtained of the immense number of individuals who are intimately
concerned in the subject of this little treatise. The solemn fact by
which the laws respecting legacies are brought into operation, is of
all things most calculated to dim the perception, and to blind the
judgment. Nor is the heart less ready to mislead at such times than
the intellect to fail; for in the distress arising from the loss of
some dear friend or near relative, we are apt,--at least those are who
are not callously selfish or morally debased--to think more of the
bereavement we have sustained than of the interests and duties which
the circumstance has called into action. Consciously unable to exercise
our usual acuteness on such occasions, we submit to the guidance of
some agent who has either been appointed by the deceased, or approved
of by ourselves, for the distribution of his property; and we blindly
rely upon his judgment and principles, when, perhaps, the one is not
always sound, nor the other immaculate. The use of the faculties, with
their usual business shrewdness, which duty and interest alike requires
us to exhibit, too often looks like a cold-hearted forgetfulness of
the kindness we have experienced, and the affection which we have
enjoyed in the sense of newly acquired property, an advantage, which,
to the man of right feeling, is, at that time of all others, the least
desirable or valued. Or it may be that excessive grief so blunts the
powers, that they are indeed incompetent to their usual task; and
those whose interest it is our bounden duty to protect, even if we
disregarded our own, may be injured through an incapacity to recollect
what we know, or to make that useful which we recollect. In supplying
the omissions of memory, or the want of right knowledge, we hope this
little book will prove a useful as well as a sound and opportune guide.


LEGACIES AND LEGATEES.

A legacy is the gift of something by the written will of one who is
deceased, conveyed through the instrumentality of the individual
appointed by the testator to distribute his property after death.

To reception of property by this means the law of the land offers some
exceptions. Among these are traitors, who, through their crime, have
lost every civil right; and by a statute of Charles I., and another of
George I., persons omitting to take the oaths required, and otherwise
qualify themselves for offices, are placed under the same disability.
Those who deny the Trinity, or assert a plurality of Gods, or deny
the truth of the Christian religion, or the Divine authority of the
Scriptures, are by the 9 and 10 William III., c. 32, made incapable of
receiving a legacy. Artizans, also, who go out of the realm to teach
or follow their trades abroad, and who shall not return within six
months after due notice given to them, are by the 5 Geo. III., c. 27,
made subject to the same disqualification; and by the 25 Geo. II., c.
6, all legacies given by will or codicil to those who witness such
will or codicil, are declared void; and the sentence is confirmed by
the 1 Vic., c. 26, s. 15, whether the legacy be of real or personal
estate. Legacies to priests and chapels to perform masses for the
repose of the souls of the deceased, are void, as being appropriated
to superstitious uses, and therefore forbidden as well by Edward VI.,
c. 14, as, from being against the constitutional intention of the law;
but the professors of the Roman Catholic religion having by the 2 and 3
William IV., being placed on the same footing as other dissenters, in
respect to their schools, places for religious worship, education, and
charitable purposes, legacies to Roman Catholic schools, and for the
object of promoting the Roman Catholic religion, are held heritable.

The legacy of a husband to his wife is valid; although, in consequence
of the law considering them as one person during life, he cannot make
any covenant with her. Yet the existence of such a relation does not
abrogate his power to endow her by bequest, because the bequest cannot
take place till after his death, by which circumstance the relationship
is determined. Care, however, must be taken to express the individual
properly, and by name; as the intimation that a legacy of a husband to
his wife, without mentioning her name, will only apply to the wife he
has at the time of making the will; and in the event of her death, and
his subsequent marriage with another person, that wife will not enjoy
the advantage of the intention, but the legacy will lapse.

An infant, if alive, though yet unborn, may be a legatee; for it was
decided in the case of _Defflis_ v. _Goldschmidt_, that a bequest of
£2000 to each of the children of the testator’s sister, which were
either then born, or should thereafter be born, included all the
children born after his death; and an inquiry was directed as to the
proper sum to be set apart for the legacies of children not at the
time in existence. It was also further decided in the case of _Trower_
v. _Butts_, that a bequest to the children of the nephew of the
testatrix, which should be born during her life time, should include
the child of which the wife of the nephew was pregnant at time of her
death, although the child was not absolutely born until some months
afterwards.

A mistake in the Christian name of a legatee will not invalidate a
bequest, when the individual who is intended can be ascertained; as
where an individual left a legacy to the son of another, although he
gave a wrong name, yet no doubt of the identity of the party intended
existed. In another instance, also, where a certain amount was left to
“each of the three children” of an individual, and it turned out that
there were four children instead of three, the court allowed the fourth
to come in also as a legatee of equal amount with the other three,
under the impression that the word _three_ was written in mistake,
instead of _four_. The bequest of an unmarried man to “his children,”
took effect, with respect to his illegitimate children, as the children
had by common repute been considered as his offspring. Such, however,
would not have been the case had any doubt as to the parties existed;
for in the case, _Earl_ v. _Wilson_, it was determined that the words
“to such child or children, if more than one, as A. may happen to be
_enciente_ of by me,” would not apply to a natural child, of which
she was at that time pregnant. There is, however, but little doubt,
that had the testator acknowledged the child which she then carried,
to be his before witnesses, it would have enjoyed the bequest. Where
children are stated, legitimate children are supposed to be intended;
unless it is impossible, through the celibacy of the testator, that he
could have any legitimate children. But in the case of a female, where
she had children of both kinds, and the bequest was stated to be to the
children of R. M., deceased, and she left two, one legitimate, and the
other otherwise, but reputed and allowed to be her child, and known to
be so by the testator, the illegitimate child took its legacy with the
other.

Great-grandchildren may inherit as grandchildren, unless a decidedly
contrary intention appear in the will; and in several cases it has
been decided, that the term _relations_, or _family_, in a will, means
next of kin. A pecuniary legacy to the heir of a testator is construed
to imply the heir-at-law, and not the next of kin, unless the sense
of the passage in the will was influenced by the context to mean
something else. The words, _personal representatives_, mean executors
and administrators, unless some accompanying expression point out a
different tendency. _Next of kin_ was decided to be construed in its
legal import for some time, but the decision was overruled, and now it
means _nearest of kin_; and a bequest by a party in India, “to his
nearest surviving relations in his native country of Ireland,” was held
to apply to brothers and sisters living in Ireland or elsewhere. The
bequest of a year’s wages to each of the testator’s servants, over and
above what was due to them at his decease, was construed, in _Booth_
v. _Dean_, to apply only to those servants who were hired by the year,
and not to all the servants who might be generally employed about his
establishment.

With the exception of those constitutionally and legally distinguished
as above, and of those whose rights are invalidated by any moral slain,
or obscurity in the language of the testator, all persons who can prove
their identity with the party specified in a testators’s will, may be
legatees.



CHAPTER II.

THE ASSETS.


As it is of very little use for a man to find himself legatee of an
estate, out of which there is nothing to pay his bequest, so also
is it an equal evil if notwithstanding the existence of property to
constitute an estate the assets, or the produce of that property be
either uncollected or wasted, so that the legatees derive no benefit
from them. One of the first things, therefore to be considered, is,
whether there be any assets; and next, whether the executor has
collected them for distribution. From the various nature of property
arising out of the complex state of society, and the different periods
and the different circumstances at which, and out of which that state
of society and its customs arose, the legislators of the country in
their care to secure the safe possession and the right appropriation
of property, have endowed it with peculiar privileges, and made it
subject to certain contingences according to its kind. Hence it is that
the heir-at-law takes the whole of a property in fee tail, or entailed
freehold, as it is called in popular language, to the exclusion of
every one else; hence it is on the other hand, that by the custom of
_gavel kind_ which prevails in the county of Kent, all the children
of a proprietor are considered as heirs-at-law and inherit in equal
proportions; hence it is that copyholds are subject to different
rules to freeholds; and hence it is, also, that the several portions
of a man’s property, after his death, are often liable to different
contingencies, and have obtained the different denominations of assets.
These have been usually distinguished by the several terms of _real,
personal legal, and equitable_, assets. They may be more broadly
divided into assets, derived from real property, and those arising
from personalty; the real and equitable being chiefly dependant on
the former, and the legal, and personal from the latter of these two
species of property.


REAL ASSETS.

Though real assets more often partake of an equitable character, that
is, are subject to distribution according to the custom of a court of
equity, yet, there are also real assets which are of a legal nature
or subject to the rules of the common law. Until within a few years,
real estate could not be touched for the satisfaction of debts of
common specialty or simple contract; but that system is now obviated,
and funds which have descended to the heir in _fee simple_, that
is unentailed freeholds, and even an advowson so descended, may be
appropriated to the benefit of specialty creditors. An estate _pur
autre vie_, or an estate held upon the life of another, when there is
no special occupant, goes, according to the statute of frauds, and if
does not it descend to the heir through occupancy, will fall to the
executor and be assets in his hands for the satisfaction of claims, and
by the 14 Geo. II., c. 20 will be appropriated like any other chattel
interest. An estate _pur autre vie_ in incorporeal hereditaments--as a
rent, for instance, granted by one person to another, during the life
of a third party, and the grantor of which dies during the life-time of
the person who holds the property--goes to the executor.

“A., tenant for three lives to him and his heirs, assigned over his
whole estate in the premises by lease and release to B., and his heirs,
reserving rent to A., his executors, administrators, and assigns, with
a proviso that on non-payment, A., and his heirs might re-enter, and B.
covenanted to pay the rent to A., his executors and administrators; the
rent was held payable to A.’s executors and not to his heir, on the
ground that there was no reversion to the assignor, and the rent was
expressly reserved to the executor.” So that in the case of the heir
having entered, he would have been only trustee for the executor.

If a testator be a lessee, his executor will take the fish, rabbits,
deer, and pigeons, as accessory chattels partaking of the nature of
their principals, the land, the warren, the park, and the dove house.
If an executor succeeds to a lease of land for years, the assets are
comprised in the clear profits; but a reversion of a term forms assets,
according to its utmost value. And if he renew the lease, that will
form assets as well as the old lease. Should an executor be possessed
of a term in right of his office, and he purchase the reversion of the
freehold, he is accountable for the assets of the term, although it be
extinguished; and so also if the executor of the lessee, surrender the
lease, it shall be considered as assets, notwithstanding the term is
extinguished. A person held a term in right of his wife as executrix,
and he purchased the reversion; the term was extinct so far as she was
concerned, but it was considered with respect to a stranger, that is,
any other person, as assets in her hands. But where an individual, on
the marriage of his son, settled a lease for years, on him for life,
and on his wife, and then on the issue of the marriage; and the son
covenanted to renew the lease, and to assign it on the same trust; and
he renewed the lease in his own name, but made no assignment to the
trustees and died; the lease was held to be bound by the agreement on
the marriage, and that it was not assets, nor liable to his debts,
nor of course to his legacies. Neither is a lease for years granted
on condition of being void on non payment of rent, which occurs, and
the lessee afterwards dies. As little so is a term in the hands of the
executor of a _cestui que trust_.

A term for years held by a testator, cannot be relinquished by his
executor, when he has assets, unless he relinquishes the office
altogether; but he is bound to continue tenant as long as the term
continues, or as long as his funds hold out, if they will not continue
the whole term.

A leasehold in Ireland is considered as personalty in the property of
an English testator dying in England. A lease granted to A. and his
executors, and accordingly to the executors after the death of A.,
becomes assets. If a lessor also, covenant to renew a lease at request
of the lessee, who, however, dies within the term without making the
request, but it is made by his executors, the lessor is bound to renew
for the legal rights of the deceased survivor to his representatives,
whom the law presumes to be another self, and therefore implied
although not named.

The grant of the next presentation to an advowson during the life of
the grantee does not convey the presentation to his executors if he die
before the church becomes vacant, for it is equal to a lapsed legacy.

If rent be reserved on a lease for years, and the rent be in arrear
at the time of the lessor’s death, it is assets in the hands of the
executor. Trees felled during his life on land held by a lessee,
without impeachment of waste, are assets to his executor after his
death; but unless they are severed during the term, they belong to the
lessor as owner of the freehold.

The executor does not come into any corporeal hereditaments, as leases
for years of houses or lands, until he is in actual possession,
and they cannot therefore until then be esteemed as assets: the
dispossession of incorporeal hereditaments, such as leases of tithes,
is constructive, and ensues immediately on taking office; for it is
evident that in these there can be no personal entry, and as soon
therefore as tithes are set out, however remote the goods may be, he is
in legal possession of them; but if the lease be of a rectory, where
there are glebe lands as well as tithes, it would seem that he is not
in possession of the tithes till he enter upon the lands, which being a
corporeal hereditament, gives an opportunity of actual entry.


PERSONAL ASSETS.

Personal assets are either moveables not attached to the land or their
produce, and derive their appellation from being either attached to
the person of the owner, or from being capable of being moved about
with him. They are either animate as living creatures, or inanimate,
as vegetables, and include all the vast variety of property which
necessity or luxury has called into existence. Properly speaking they
are not assets until converted into money for the payment of debts or
legacies, though they may certainly constitute the subject of specific
legacies. As however they either form subjects of bequest, as they
are, or the means by which it is to be produced, we will follow the
arrangement into which they naturally fall.

Animate _chattels_, as before they are converted into assets they are
properly called, are divided into _domitæ_ and _feræ naturæ_, or such
as are tame or reclaimed, and such as are wild; the former admitting
of an absolute, the latter of only a qualified ownership--the former
embracing all kinds of farming stock and poultry, the latter all those
which, unsubdued to confinement, still enjoy their natural liberty,
and therefore cannot pass to representatives. Such also are fish in
any natural stream or reservoir of water; but fish in a tank, as well
as creatures in confinement, are capable of sale, and therefore of
transfer: and this is the case also with all the young, the weak, or
the lame, of all those wild creatures which, either from feebleness
or any other cause, cannot assume their natural liberty. Under this
specification come also all hounds, greyhounds, and spaniels, and all
the accessaries of falconry or the chase, as well as every thing kept
either for curiosity or from whim. An executor is also entitled to
appropriate as assets deer in a park, hares or rabbits in an enclosed
warren, doves in a dovecot, pheasants or partridges in a mew, fish in
a private pond, and bees in a hive of the testator, where lessee for
years of the premises to which they respectively belong, so long as
they continue in a state of subjugation, and no longer; for as soon as
they obtain their natural freedom, they pass into the class of _feræ
naturæ_, and are beyond the reach of his domain.

Vegetable chattels which may be appropriated as assets are the fruit of
a tree or plant when separated from the body of the thing that bears
it; or the tree or plant itself when severed from the ground, as grass
that is cut, and trees which are felled, or branches which are lopped.
Of the same character also are all those vegetable productions which
are produced by the exertion and skill of the owner or occupier, and
which are technically called emblements; extending to roots planted
or other artificial profit, and including corn, growing crops, hops,
saffron, hemp, flax, clover, saintfoin, and, in short, every other
yearly production in which art and industry combine with nature. The
executor has also been held entitled to hops though growing on ancient
roots, as cultivation was necessary to produce them. Manure, in a heap,
also, before it is spread on the land, is personalty; but afterwards
it becomes attached to the soil, and is consequently indirectly the
property of the owner of the soil.

The inanimate chattels, which constitute personalty, are furniture,
merchandize, money, (including stock in the funds, shares in public
companies, and property of similar kind) pictures, clothing and jewels,
and, in fact, every thing that can be moved from place to place. The
presentation to a living, if the living be occupied at the time of the
testator’s death, is, as has been stated, property of a real nature,
and of course goes to the heir; but if it be open or unoccupied, it
forms a personal chattel, and becomes assets in the hands of the
executor. Copyrights and patents are also considered as personal
chattels.

All these things become assets in the hands of the executor, in
whatever part of the world they may be, at the moment of the testator’s
death. But in order to their becoming so, it is necessary that the
testator must have professed an absolute property in them; and
therefore it is, that, if he, having been the obligee of a bond, has
assigned that bond with a covenant not to revoke, it does not become
part of his assets. Nor are goods bailed, as it is called, or delivered
for a particular purpose to a carrier, or to an innkeeper, to secure
in his inn; nor goods pledged, until the time of redemption shall have
passed. Neither are the goods of an outlaw assets at the time of his
death, for his executor has no right to touch them.

Chattels, however, whether real or personal, may be held in joint
tenancy as well as in common; so if a lease be granted, or a house be
given to more than one person absolutely, they are joint tenants of it,
and unless the jointure be severed, it shall be the exclusive property
of the survivor. But if the jointure of interest be severed by one
of the parties disposing of his share to another, that other person
becomes, with the previous owner or owners, a _tenant in common_,
instead of a _joint tenant_; and the principal of survivorship does
not hold, but the chattel, or the portion of it which belonged to
the testator, whatever it may be, falls to the executor, and becomes
assets. Thus, money left to two parties to be divided between them,
occasions a tenancy in common, because it can be divided without
injury to either; but not so with a horse or a house, for that could
not be severed without destruction to it, and a consequent defeat of
the testator’s will. But on the argument of convenience and justice,
and for sake of encouraging husbandry and commerce, the goods of
a warehouse or a shop, or the stock of a farm, although occupied
jointly, will, in the absence of any express contract to the contrary,
be considered as property in common; and on the death of any part
owner of such property, his share would fall to his executors, to
meet the claims of legatees, according to the will. So also, on that
principle of personalty which the law invariably recognises, and
that distinction which it invariably observes between the rights and
actions of individuals, and the attachment and nature of property,
the executor of a testator who has been joined in any action for the
recovery of property, cannot take his place in the action and carry it
on, however indolent or negligent the survivor in the action may be in
endeavouring to bring it to a fortunate conclusion; but he has a right
of action against him for the injury sustained by the property through
his negligence, and also to oblige him to account when the action
has terminated. In such a matter a court of equity will in general
interfere.

Occasionally it happens that chattels real are changed into chattels
personal, and thus become available for the payment of legacies; and
chattels personal are sometimes changed into chattels real; and
thus the legatees are deprived of the amount for the liquidation of
their claims. The former instance occurs when a debt has become due
to an executor by statute, recognisance, or judgment, and he has in
consequence taken the _lands_ of the debtor in execution; for here
the original property in the debt, which was money, and consequently
personalty, has been converted into realty, to which the heirs’ claim
supersedes that of the legatees. Chattels real, on the other hand, are
converted into personalty by the redemption of a mortgaged estate.
Had the mortgage which the testator held become foreclosed through
the negligence or inability of the mortgagor, the property would
have continued _real_ as it was at the time of his death, but by the
payment of the debt, the estate again becomes money, and consequently
a personal asset to meet the legacies, or any other claims upon the
testator’s estate.


LEGAL ASSETS OF CHOSES IN ACTION.

It is neither an improbable nor unfrequent occurrence, that, at the
time of a testator’s death, much of his property is outstanding, which,
if got in, would satisfy all the claims of the legatees, while, if
it were neglected, they would lose half their bequests; and it is
therefore necessary to consider the executor’s interest in what are
called _choses in action_, as well those where the right of action
accrued during the life time of the testator, as after his death.

Firstly, then, the executor is entitled to every debt that was due to
the testator, whether they be debts due on judgment, statute, record,
recognizance, or bond, or on special or simple contracts, rents, or
covenants, under seal or promise, all of which constitute assets for
the purposes of the will. He is also entitled, by the 4 Ed. III.,
c. 7, to damages for trespass committed during the testator’s life
time, or for the conversion of the same, or for trespass with cattle
in his close, or for cutting and carrying away his growing corn, or
for a debt incurred by the not setting out of tithes, to an action of
prevention against the disturbance of his patronage; as, when a living
has been void at the death of the testator, and another has presumed
to appropriate this chattel, then become personal, to his own use, by
presenting to the living, or to an action of ejectment against him whom
he has presented. An executor is also entitled to damages for breach
of a covenant to do a personal thing, provided the breach occurred in
the testator’s life time; and this, notwithstanding the covenant has
reference to realty, as felling, stubbing up, lopping or topping timber
trees; for the damages are of the nature of personalty, though that
on account of which they were recovered is real. Equally, also, and
on the same grounds, can he sue for the loss of interest occasioned
by non-payments on deposit-money, for the expense of investigating
a title, where the vendor omits to make out a good title within the
stipulated time, and the vendee dies. The executor of an assignee may
also recover on a bail bond. In fact, in all those rights which accrued
to the vendee before his death, and the proceeds of which are all of
a personal nature, does the executor equally enter; and he is bound
to the legatees to recover, if possible, whenever policy or necessity
dictate the attempt.


EQUITABLE ASSETS.

According to the usual legal phraseology, the difference between legal
and equitable assets is this; “legal assets are such as constitute
the fund for the payment of debts, according to their legal priority;
whereas, equitable assets are those which can be reached only by the
aid of a court of equity, and are subject to distribution on equitable
principles, according to which, as equity favours equality, they are
to be divided _pari passu_ among all the creditors.” This is a very
important distinction, and of great consideration in the payment of
debts, and it has accordingly been fully set out in the Hand-Book for
the instruction of Executors and Administrators. There the difference
is as to the _distribution_ of equitable assets, but here we have to
regard their attainment. The difference between the different species
of legacies will be shown hereafter, but in this place we may look upon
them in one light, and consider that there is both sufficient to pay
the debts and satisfy the legacies, if the assets are all got in, and
properly distributed. With respect to the debts, the legal assets are
applicable in a certain order, while the equitable assets are equally
shared among the creditors. But with respect to the legacies, saving
the instance first alluded to, of specific legacies which are to be
noticed hereafter, the assets, whether legal or equitable, are all
distributed equally, that is, in full, if sufficient to satisfy in
full, or in proportionate equality, according to the amounts of the
legacies, and the means to pay them. Our business, therefore, here is
to show what the executor is entitled to, and what he ought to obtain
in order that the legatees may not suffer from his negligence.

The executor enters, then, fully into the equitable title of the
testator, in respect of personal property, and this whether it accrues
before or after his death. Thus, if an individual shall have contracted
to deliver certain goods to the testator on a certain day, and the
day does not arrive till after his death, and they are delivered to
his executor, they will constitute assets in his hands, and should
the individual who has covenanted to deliver them fail in his duty,
the damages that shall be recovered in consequence will be equally
available to the creditors or legatees. So, also, if any party has
covenanted to grant a lease of certain land by a particular day, and
the testator dies before the day, the executor is entitled to the
lease, or to compensation in the way of damages in lieu of the lease.
To such an extent, indeed, does this run, that in the case of _Husband_
v. _Pollard_, where a father held a lease of the church, renewable
every seven years, and he assigned it to his son in trust for himself
for life, remainder in trust for the son, himself, his executors,
administrators, and assigns, and the father covenanted to renew the
lease every seven years as long as he should live; and the son died;
and the father failed to renew the lease within the seven years; and
the executor of the son filed a bill to compel him to renew; it was
decided that he ought to do so, and he was compelled accordingly; and
this lease became assets in the hands of the executors at the father’s
death.

If a defendant in execution at the testator’s suit escape after the
testator’s death, the executor shall recover damages for the escape,
they will form assets; so also are goods replevied after the death
of a testator. If a testator die possessed of a term for years in an
advowson, the term rests in the executors, and, in the event of their
being disturbed, any damages they may recover in consequence will be
equally available, as also any other property recovered by a suit
in equity. But when a cause of action accrued before the testator’s
death, neither cause nor damages are to be considered assets until
the proceeds are, by execution or otherwise, reduced into possession.
Neither is the balance of an account stated with the executor to be so
considered until paid. If, however, they be recovered and released by
the executor, he will still be responsible for them, for the release is
tantamount to an acknowledgment of receipt.

Should the cause of action accrue after the testator’s death, both the
action and the damages become assets immediately, unless the breach of
engagement affect the realty, in which case they belong to the heir.
At the death of a joint merchant, all his interest in his _choses in
action_, or things coming, though not yet come, to hand, through legal
or equitable suit, and whether, therefore, they be legal or equitable
assets, devolve, according to the amount of the testator’s interest in
them, to the executor.


CONTINGENT AND DEPENDENT ASSETS.

Besides all these means by which property may be realised by an
executor to pay the claims of the legatees, there are yet other more
remote and uncertain sources from which he may in the course of time
come into the possession of assets, which may enhance their interests.
These consist in the peculiar conditions annexed to certain properties;
properties again which may come to the testator’s estate in consequence
of his being entitled to them as remainder man or contingent devisee,
as his outliving some other individual, or happening to fulfil an
engagement which that other has failed to perform. Or he may have
been unconsciously entitled, as residuary legatee, to property, the
surplusage of which has not been discovered, or recovered till after
his death. Or property may have come to him through increase of some
fund, or by assignment under some deed or covenant, or by limitation
and selection.

An executor may become entitled to property in his official capacity
by condition, as if the testator shall have granted a lease, or other
chattel, to a certain person, on condition of his paying a sum of
money, or doing some specific act, and it is discovered after the
death of the testator that that person has failed in his part of
the agreement, the chattels will then be assets in the hands of the
executor. Or where the agreement is that the testator or his executors
shall pay a certain sum, to avoid the grant, and the sum is paid. Or
the testator may have pledged plate or a jewel, and the executor redeem
it at the time and place appointed, before the day of redemption has
passed. If he has redeemed with his own money, and, in consequence of
the want of funds of the testator’s property, the chattel is obliged to
be sold to pay the executor’s disbursements, and if it sell to more
than they amount to, then the surplus above that amount will be assets
in his hands, for the benefit of the creditors and legatees, or both.

Chattels may also accrue to an executor by remainder or increase, which
never came into the testator’s personal possession, as if a lease be
granted to a person for life, with remainder to his executors for a
certain period, the remainder will be assets in their hands. Likewise
where a lease is bequeathed by will to a person for life, and on his
death to another, and that other dies before the first, although
he never had any personal right in it, yet it will devolve to his
executors, and be assets. So, also, a remainder in a term for years,
though it never rested in the testator’s possession, and, though it
continue a remainder, shall go to the executor and be converted for
what it will obtain. Such, also, is the case with the young of cattle
or the wool of sheep, produced after the testator’s death, as also the
profits on lands devised over and above the rent, if he enter upon
them, and the testator has been a lessee for years. Such, also, is
the property in a trade in which the deceased has been a partner, and
in the articles of partnership of which a covenant has been made,
that his survivors should take his share. Or a testator may direct
his executors to carry on his trade, appointing either the whole or a
portion of his assets for its conduct, and then the proceeds will form
assets.

An executor may also come into the possession of assets as a
representative assignee, for if the testator shall have died an
assignee, his executor will take his place, and use the assets which
he derives, belonging to the testator, for the purposes of his will.
So if a legacy is bequeathed to a person and his assigns, and that
person die before its receipt, his executors will be entitled to take
it as his natural assignee. Such is the case also if a person be bound
to abide by the award of two arbitrators, and they award that he shall
pay to another person, or his assigns, a certain sum of money before a
day mentioned for that purpose, and that other person die before the
day, his executor or assignee is entitled to the money. This principle
however does not hold where any specific assignee is appointed, for
then that assignee, and not the executor of the party named, will take;
but where no specific assignee is named, the executor becomes the
assignee.

Limitation also often becomes a source whence an executor derives
assets. Thus in the case of _Pinbury_ v. _Elkin_, where a testator
directed that in case his wife should die without issue by him, his
brother after her decease, should have eighty pounds; and, after
testator’s death, the brother died in the life time of the widow,
and she afterwards died without leaving issue, it was held that the
possibility devolved to the executors of the brother, although he
died before the contingency happened, and the legacy went accordingly
with interest from the widow’s death. It was also held in the case of
_Chamey_ v. _Graydon_, that where legacies were bequeathed to children,
to be transferred to them at their respective ages of twenty-one
years, or days of marriage, and that any of them should die, or marry
without consent, his or her share should go to others at their age
of twenty-one years, Lord Chancellor Hardwick decreed that a share
accruing by the forfeiture of a child’s marrying without consent
vested in another child who attained twenty-one, but died before such
forfeiture, so as to entitle the personal representatives of such
deceased child to an equal share with other deceased children.

Where a person who has a legacy bequeathed to him out of a personal
estate, and which legacy is to be paid when he is of the age of
twenty-one years, and he dies before that time, his executors are
entitled to the legacy at the moment of his death, if it is intended to
carry interest, but if it is not to carry interest, then on the day on
which he would have been twenty-one. But if the legacy is to be paid
to the person to whom it is bequeathed at his age of twenty-one, or
if he shall attain the age of twenty-one, and he die before that time
the legacy will lapse. But if the interest is given before the time of
payment, that is held to _vest_ the legacy; and his executors would
consequently be entitled to the amount as assets.

With respect to the interest arising out of land, however, the rules
are totally different; for whatever the nature of the legacies to
which the land is to be appropriated, whether for a child or a
stranger, and with, or without interest, the charges on land, payable
on a future day, are not to be raised where the party dies, before
the day of payment, except where the time of payment is postponed on
account of the fund and not of the person. In the case of _Watkins_
v. _Cheek_, where a legacy was charged upon real estate, to vest
immediately on the testator’s death; and to be paid to the legatee on
attaining twenty-one, the interest being applied in the mean time for
maintenance, and the legatee died before attaining that age; it was
held that the express direction, that the legacy should vest on the
death of the testator prevented its sinking; and the representative of
the legatee was consequently entitled to the legacy. Where lands are
devised for the payment of portions, and any of the children entitled
die before the lands are sold, the representatives of that child will
be entitled to the money. In the case where a legacy is charged both
upon the real and personal estate, and the executor claims out of the
latter, he will succeed according to the rule of the spiritual court,
where the claim is determinable, though the infant legatee should die
before the time of payment, but the legacy will sink as far as it is
charged upon the land.

Election is also a means by which an executor may claim, as in the
instance where a testator was entitled to take his choice out of
several chattels, and he has failed to choose; but if nothing passes to
the grantee before his election, it should be made in his life time.
Should the election determine the manner or degree in which the thing
shall be taken, the executor may take it as well as the grantee, for
then there is an immediate interest; as, for instance, if a lease be
granted to a person for ten or twenty years, as he shall choose, the
executor may elect.

We have thus at some little length endeavoured to make it as clear as
possible what are the sources from whence the assets of a testator are
to be derived. We will now proceed to see how they are to be disposed
of when obtained, and ascertain what is technically called, the
“Marshalling of the assets.”



CHAPTER III.

MARSHALLING OF THE ASSETS.


It was enacted by the 47 Geo. III., c. 74, that the property of any
trader who died possessed of, or entitled to, any real estate or
interest in real property which would be assets for the payment of any
debts due on specialty, in which the heir was bound, should be equally
applicable through the administration of a court of equity, for _all_
the just debts of such trader, whether debts due on simple contract,
or otherwise; thus remedying one of the most unjust mischiefs which
ever disgraced the jurisprudence of any country. For, before, a man
would die possessed of immense landed estates, and owe immense sums
as debts upon simple contract, one hundreth part of which, perhaps,
would scarcely be liquidated before the day of doom, in consequence of
his leaving but a small personal property to pay them, while his real
property could not be touched for the purpose.

That statute, however, only applied to those persons who were traders
at the time of their decease, and not to those who left off business
before they died; and it was repealed by 1 Will. IV., c. 47, but
re-enacted by the same act, in order to remedy the frauds for which
no previous provision had been made. By this act it was decreed, that
“all wills and testamentary limitations, dispositions or appointments
of real estates, whereof any person shall be seized in fee simple, in
possession, reversion or remainder, or have power to dispose of by
will, shall be deemed fraudulent and void as against creditors, by
bond, covenant, or other specialty binding his heir,” and right of
action is given the creditors against the heir or devisee. A further
improvement was made by the 3 and 4 Will. IV., c. 104, by which all
landed estates of freehold, custom, or copyhold, are made liable for
the payment of simple contract as well as specialty debts, as much as
they had previously been for the debts in which the heir was bound; but
still the creditors in specialty in which the heir is bound, are to
be paid in full before the creditors by simple contract, or the other
specialty creditors, are paid any part of their claims. By the 5 Geo.
II., c. 7, all the real property in the British plantations in America,
is made subject to debts as if it were only personal.

Lands may be devised to be sold for the payment of debts only to which
it will be alone restricted; or if there is sufficient to satisfy all
claims, it may be sold for the payment of legacies only, and not debts,
in which case no debts can be paid out of the funds it produces. But
in the first place, the personal assets of the testator shall in every
instance be applied in the discharge of his debts or general legacies,
unless by manifest intention they are exempted, as a plain declaration,
or an inference so necessary, as to be tantamount to a declaration. A
devise of the real estate, therefore, subject to the payment of debts,
will not exempt the personal estate, at least only in appearance;
for if even the testator direct the real estate to be sold to pay
the debts, the personal estate will, by the rule of law, be taken to
exonerate the rule, unless the whole of the personal estate be left in
specific legacies. It is indeed directed, by the decisions in several
cases, to be thus applied, even though the personal debt should be
secured by mortgage, and whether or not there be a bond or covenant for
repayment. By the same rule, lands which have descended will exonerate
lands which have been devised; and both unencumbered and mortgaged
lands which are devised, though even specifically and expressly after
the payment of _all_ debts, will be used to throw off the mortgage,
for in every such instance the debt is considered as only a personal
debt of the testator, and, consequently a merely collateral charge upon
the real estate.

Where, however, the charge is chiefly on the real estate, and the
charge on the personal is only collateral, a different rule prevails.
As, for instance, where a real estate has been bought subject to a
mortgage, for then the real estate which bears the burden, and not the
collateral personal estate of the purchaser, shall be used to discharge
the debt, unless it evidently appears that he intended that effect; but
a mere covenant for making the debt secure would not absolve the real
estate from its liability.

In the application of real assets, when the personal estate is
exhausted or exempt, the order to be observed is, firstly, “the real
estate expressly devised for the purpose shall be applied; secondly, to
the extent of the specialty debts the real estate descended; thirdly,
the real estate specifically devised, subject to a general charge of
debts.”

It is necessary also, in order to understand the right position of
legatees, to state, that where a creditor has more than one fund to
resort to for the satisfaction of his claims and, another has only
one, and he who has more than one chooses that fund on which he who has
only one has a claim, that the creditor who has only one shall be able
to come upon the other on which he had previously no lien; so that if
a special creditor be satisfied out of the personal assets when they
are only sufficient to satisfy the simple contract debts, the simple
contract creditor shall have a claim against the real assets when the
personal assets are exhausted. The same marshalling of assets may take
place in favour of legatees, and against assets descended they have the
same equity; as, for instance, when a simple contract creditor, who
is prior in his claim to a general legatee, shall have been satisfied
out of the personal assets, when they ought to have been left for the
satisfaction of inferior claims, the general legatee shall stand in
his place as to the real assets; so when the legacies are charged by
the will on the real estate, and the legacies given in the codicil
are not, the former shall resort to the real assets when there is an
insufficiency of the personal assets to pay the whole. In the same
manner, should a specialty creditor choose that his claim shall be
satisfied from the assets in the hands of the heir, the heir shall be
entitled to a recompense out of the personal estate.

But the principles of these rules do not extend so far as to enable one
claimant to overrule the rights of another, and a pecuniary legatee
will not, consequently, stand in the place of a specialty creditor
in his right against any lands specifically devised, though he will
against those which have descended in an ordinary manner. Where,
however, a mortgagee has exhausted the personal assets, instead of
taking the estate over which he held his particular power, the legatee
will come upon the mortgaged premises for the satisfaction of his
claim, for the personal assets ought not to be so appropriated, to the
defeating of any legacy, either specific or pecuniary. Where, also, a
specialty creditor shall have exhausted the personalty, the legatee
will have a claim upon the real estate before a residuary devisee. Yet
in the case of _Handley_ v. _Roberts_, where the testator had left
three leasehold estates, one of which was mortgaged, and the residuary
personalty, which was the fund he appropriated to the payment of the
debt, was exhausted without fully satisfying the claim, the other two
leaseholds were held exempt from any share of the burden, and the
legatee of the mortgaged estate took it with its weight as it was. None
of these rules subject any portion of an estate to claims to which it
was not liable before, but only go to the extent of securing the rights
of every claimant with equal fairness.

Where a testator dies possessed of both copyhold and freehold property,
and he charges all his _real_ estate with the payment of his debts,
both species of property will be equally subject to the impost, if he
shall have surrendered the copyhold to the use of his will, but if not,
the freehold must be exhausted before the copyhold can be applied.

If a legatee be entitled to a legacy at some future day, out of the
mixed fund of real and personal estate, and he die before that day
arrive, the legacy will become vested and transmissible if it be made
payable out of the personalty, but will sink on the death of the
legatee if it be charged on the real estate. The wife will stand in
the place of specialty creditors, for her paraphernalia, against real
assets descended, but whether or not against such as are devised is not
yet finally determined, unless such real assets shall have been stated
specifically, to assist the personalty in the liquidation of debts.

As respects bequests for charitable objects, a court of equity will
not marshall the assets so as to give effect out of the personalty,
notwithstanding that they are void as regards land. Under a devise of
real and personal estate in trust to pay debts and legacies, some of
which were void by statute as (charges for charitable objects upon real
and leasehold estates), and there proving a deficiency of assets, the
other legatees were preferred to the heir.



CHAPTER IV.

LEGACIES--GENERAL, SPECIFIC, LAPSED, VESTED, DEMONSTRATIVE.


Legacies are gifts of the property of a deceased person to his
surviving friends or relatives, expressed in the deed or will by
which his disposable property is governed after death. They are
styled _general_ when a certain amount of property is bequeathed to a
particular person, without any certain fund being appropriated for its
payment. They are _specific_ when the particular things are named, as
well as the particular persons to whom those things are bequeathed.
Legacies _lapse_, or are lost to the party or his representatives, or
friends, when some particular condition is annexed to the bequest,
which condition has not, or cannot be, either through negligence or
impossibility, complied with. They are, on the contrary, _vested_, or
made the property _de jure_ of the party to whom they are left, when,
through his own act or without it, certain conditions, which were
predicated by the terms of the will, have been fulfilled; although the
legatee may not come into possession of his rights for years perhaps
after the death of the testator. Farther, legacies are _demonstrative_
when it is evident that, under a certain set of circumstances, certain
persons are intended to inherit certain portions of property, and those
certain circumstances arise by which the demonstrative legatees acquire
their rights. These several terms will be clearer when they are farther
explained and illustrated by examples, to which we will immediately
proceed.


GENERAL LEGACIES.

General legacies are such as are specified in a mere statement of
quantity; as, A leaves to B £500, to be paid out of his personal
estate, without specifying any particular portion of property out of
which the sum is to be paid. Nor does it matter whether it be of money
or stock; and where the testator has not the stock stated in his will,
but has the wherewithal to purchase it at his death, the executor is
bound to procure so much stock for the legatee. But if the terms of the
will be specific, as “so much stock, _standing in his name_,” and he
has no stock whatever, the legacy would share the fate of a specific
legacy, and fail. The purpose, however, to which a general legacy is
directed to be applied, will not alter its nature, however specific
the object may be. Personal annuities, given by will, are also general
legacies.

Legacies may be specific in one sense and pecuniary in another--being
specific when they are given out of a particular fund, and not out of
the estate at large; and pecuniary, as consisting only of definite sums
of money, and not amounting to the gift of the fund itself, or any
portion of it.

In the case of the _Attorney General_ v. _Parkin_, Lord Camden
recognized the distinction between a legacy of a certain sum due from
a particular person, and a legacy of such debt generally; considering
the former as a legacy of quantity, while the latter he deemed to be
specific.


SPECIFIC LEGACIES.

Specific legacies are of two kinds; the first of which includes such
chattels as are so described as to identify them from all others of any
other kind, or of the same kind, as, “I give the silver candlesticks,
left me by my late uncle, to such a person.” Here the meaning cannot be
misunderstood, and the legatee can take the particular candlesticks in
question, and none others; and, consequently, should it have happened
that the candlesticks in question have either been lost or parted with
by the testator during his life-time, or cannot be found after his
death, the person to whom the bequest is made will lose his legacy. The
second kind implies a particular chattel, as expressed in the will,
but without distinguishing it from any other chattel of the same kind.
Thus, the words, “I hereby give and bequeath a diamond ring to my
nephew, J.,” would give to J. a diamond ring, even though the testator
had not one in his possession at the time of his death, and he would
obtain his legacy in full, even though those of the general legatees
should abate of half their value in consequence of claims against the
property of their benefactor. The gift, however, of a sum of money
for the purchase of a specific legacy becomes a general legacy, and
therefore liable to abatement.

Generally speaking, there is an indisposition in the courts to construe
the terms of a will into a bequest of a specific legacy, but if the
expression clearly indicate an intention to separate any particular
thing from the general property, they will always readily allow the
specificness of the legacy; and, hence, under some circumstances, even
pecuniary legacies become specific. Thus, in the case of _Lawson_ v.
_Stitch_, a legacy was stated as consisting of, or conveying a certain
sum of money, in a bag or chest, and the whole of that money became a
specific legacy. Thus, also, in _Hinton_ v. _Pinke_, a sum of money was
left, which, at the death of the testator, was in the hands of a third
party, and was stated in the will to be so, that money was esteemed a
specific legacy. So, also, was a rent charge upon a lease; for it was
evident that only one rent charge, or one lease, could be understood.
In like manner, the bequest of a bond, and the amount of the testator’s
stock, in a particular fund, as well as a legacy out of the profits of
a farm, which the testator directed to be carried on, as was decided in
the case of _Mayott_ v. _Mayott_, the principle being fully developed,
in the action of _All Souls’ College_ against _Coddington_. Specific
legacies may also be carved out of a specific chattel, as is partly
shown in the case of _Hinton_ v. _Pinke_, just cited; as, where the
testator gives only _part_ of a debt, instead of the whole, which is
owing to him, at the time of his death, by a third party.

Yet, in order to insure the descent of a specific legacy, which is
always _ceteris paribus_, more valuable than a general one, it is
requisite that the testator should not nullify by any other expressions
in his will the terms of a specific legacy; as was decided in the case
of _Parrot_ v. _Worsfield_ where a testator, reciting that he had
£1500 in the 5 per cents., gave it to one party, and then gave all
other stock that he might be possessed of at his death to another,
and, in consequence of the manner in which it was put, the latter of
these two legacies was made subject to his debts, in preference to the
former, when, in fact, there is little doubt but that the testator
intended that both should in that respect stand on an equal footing.
Much of the same kind of mischief arose in the case of _Willox_ v.
_Rhodes_, where the testator gave a number of legacies, and added:--“I
guarantee my estates at D. for the payment of the above legacies;”
while, in an after part of his will, he gave many other legacies,
it was held, that if the estates at D. should prove insufficient to
satisfy the claims of the first class of legatees, the legacies were
not specific, and the whole of the personal estate was proportionably
liable for them. But, in the case of _Sayer_ v. _Sayer_, where the
testator devised the whole of his personal estate, at a particular
place, to his wife, the bequest was held to be as specific as if he had
enumerated every particular of the property there.

In some instances mistakes have arisen, in consequence of the
misapprehension of particular terms by the parties who use them; and
not a little care is often required to come at the precise meaning of
a bequest. Thus, in a general sense, the word _money_ only implies
either the coin of the realm, or the legal tender for it, bank notes;
or else such equivalent as the state may have given in lieu of money,
or that which is used to express the money lent to the state, and for
the security of which, the faith of the state is pledged, or the public
stocks; and, therefore, promissory notes, or bills of exchange, and
other similar _choses in action_ are not included in the meaning of the
phrase, yet, in some instances, they will be construed as meaning such.
This was shown in the case of _Read_ v. _Stewart_, where the testatrix
had bequeathed a cabinet, and all that it contained, “except money,”
and part of the contents was a promissory note of value, and of a date
payable anterior to her will, and, of course, to her death, it was held
that the terms of the bequest did not pass the note.

Yet a liberal construction is put upon the terms of a bequest, and an
evident mistake will be rectified, as in the case of _Penticost_ v.
_Ley_, where the testatrix made a bequest of £1,000, long annuities,
standing in her name, or in trust for her, while, in fact, she
had no long annuities whatever, but had really £1,000 in the 3 per
cents. reduced, it was held, that this, and this only, could be the
sum to which she alluded, and it was accordingly appropriated to
the legatee. Still, it must be a mistake respecting which there can
be no apprehension, or the legacy will fail; as in _Humphreys_ v.
_Humphreys_, where the testator was indebted on a mortgage, which he
had paid off previously to his death, out of a fund of £5,000, which
he had in the 3 per cents., neglecting to alter a provision in his
will, by which he had left the whole of his stock in these 3 per cents.
(which he specified as _being about_ £5,000), except £500, which he
left to another party, devising at the same time other specific parts
of his property to be sold, and the produce to be applied in discharge
of the mortgage; the circumstance of his having himself applied this
fund to the discharge of the mortgage was held to have redeemed the
legacy altogether, and the legatees could obtain no remedy against
those other parts of the general estate which were directed to be
applied to the redemption of this mortgage. This, however, was contrary
to the general rule of equity, and it may be presumed that it would
have been set aside on review. Lord Bathurst, it is true, held the same
principle, at least to a certain extent, in the case of _Carteret_ v.
_Carteret_, where the testator gave to one of his connections “one
thousand four hundred pounds, for which he had sold his estate that
day,”--which sum he received, and paid into his bankers, but drew
eleven hundred of it out the same day, leaving the other three hundred
there still; his lordship decided it to be a legacy of quantity, and
therefore general, and subject to the diminution occasioned by the
draft of the testator; but Lord Thurlow disallowed the distinction
set up by Lord Bathurst, and decided that a legacy of “the principal
of A.’s bond for three thousand five hundred pounds,” was a specific
legacy, although the sum was named.

Thus, the principle appears to be evolved, that a legacy, in order to
be specific, and saved from any general abatement suffered by other
legacies, must be stated precisely as a certain thing or fund, or a
particular portion of a certain thing or fund, so that it may be whole
in itself, though possibly a part, but a plainly indicated part, of
something particularly described in the will.


THE VESTING OF LEGACIES.

A legacy is said to _vest_ when the party to whom it is bequeathed is
not able to claim it at the seasonable time for the payment of general
legacies, either through absence, or any other cause; or when it is
directed by the testator that it shall be paid at some future period,
and nothing occurs before the arrival of that period to prevent the
legatee’s right. Thus, a legacy left to be paid to a certain party a
certain number of years after the death of the testator, without the
annexation of any condition, such as, “if the legatee shall so long
live,” would vest the legacy; and if the legatee did not survive the
period named, his heirs or representatives would come into his right;
or should it be even said that the legacy is to be _payable_ to the
legatee at a certain age, it is still vested, though he should never
attain that age. But if it be said in the will that the bequest is to
be paid _when_, or _as soon as_, the legatee shall attain a certain
age, and he dies before the age specified, the legacy does not vest,
but goes to those who may be stated in the will as the parties to
receive it, in the event of the first legatee failing to survive, or
into the general distribution directed by law. The distinction was
originally instituted by the code of Justinian, and adopted by the
English courts, not so much on account of its intrinsic equity, as from
its prevalence in the spiritual courts, in order, that when the court
of chancery acquired a concurrent jurisdiction with those courts in the
adjudication of legacies, the claimant might obtain the same measure of
justice from whatever court he might apply for redress.

This rule, however, respecting the vesting of legacies applies
only to legacies of personal property transmissible to the legatee
as _personalty_; for the contrary holds, if the legacy be either
charged upon real estate, or upon personalty to be laid out in real
estate, and it would then be included under the next head, and would
lapse. The reason of this is, because in devises affecting lands
the ecclesiastical courts have no concurrent jurisdiction, and the
distinction created by the circumstances of the future, does not extend
to them. Yet, should the legacy be of personalty, and it be expressly
stated that it is to carry interest, it will vest, and be transmissible
to the legatee, or his representatives, notwithstanding that the words
of positive conveyance, “payable,” or “to be paid,” are omitted, for
the payment of interest is an adjudication of the principal.


THE LAPSING OF LEGACIES.

A legacy is said to _lapse_, or slip from, or be lost to the legatee,
where, through his own fault, or through an impossibility over which
he has no control, he fails to fulfil that condition of the will on
which he is expressly to take the bequest. Thus, if a legacy be left to
a person which is directed not to be paid unless he attains a certain
age, and he dies before that age, though the death be no fault of his
own, his representatives will be divested of all the right which they
would otherwise have acquired.

One peculiar instance of this was shown in the facts elicited in the
case of _Tulk_ v. _Houlditch_, in which it appeared that the testator
left a legacy to a person, concerning whom there was every probability
that he was not alive, but yet no certainty could be obtained. In
order, however, to insure the identity of the party, the bequest had a
condition annexed to it, that the legatee should return to England, and
personally claim of the executrix, or within the church porch of the
parish, within seven years, otherwise the legacy was to lapse, and fall
into the general residue. It afterwards appeared that the legatee was
really alive at the time the bequest was made to him, but he failed to
return, and, in fact, died abroad within the seven years. Lord Eldon,
accordingly, held that the legacy had lapsed, for though the legatee
was living he had not fulfilled the directions of the will, and he
thereby lost his right to the bequest.

The general rule respecting the lapsing of legacies is, that if a
legatee die before the testator, the legacy shall become a portion of
the general residuary estate, nor will a statement that the bequest
is made to the legatee, his executors, administrators or assigns, or
to him and his heirs, prevent the lapse; nor will even the expressed
desire of the testator, that the bequest shall not fail if the legatee
shall die before him, exclude the next of kin. But a slight alteration
of the terms of the will may prevent the failure, as in the case of the
death of A. before the testator, other persons are named to take; for
instance, A.’s legal representatives, or the heir under his will, or to
A., B., C., “or to their heirs,” or to A., “and failing him by decease
before me, to his heirs,” the legacy, on A.’s so dying, shall vest in
such nominees.

It is decreed by 1 Vict. c. 26, s. 29, “that in any devise or bequest
of real or personal estate, the words ‘die without born issue,’ or
‘have no issue,’ or any other words which may import either a want or
failure of issue of any person in his life-time, or at the time of his
death, or an indefinite failure of issue, shall be construed to mean a
want or failure of issue in the life-time, or at the time of the death
of such person, and not an indefinite failure of his issue, unless a
contrary intention shall appear by the will.”

We may conclude with the observation, that where a legacy is clearly
left to any particular person, the court will require very clear
evidences of the failure of the performance of conditions, before it
will allow a lapse to the loss of the representatives of the legatee;
and, that just in proportion to the clearness of the bequest, is the
danger of the lapse.


DEMONSTRATIVE LEGACIES.

It sometimes, though rarely, occurs, that the party who is to inherit a
bequest can only be ascertained by inference, instead of from the clear
declaration of the will; and the legatees so ascertained, are termed
_demonstrative_ legatees. Such are often found in distant, or unknown,
or unrecognized relatives or friends of the deceased.



CHAPTER V.

ASSENT TO LEGACIES.


It is the peculiar attribute of the office of an executor, that he
stands as the medium of communication between the dead and the living.
Responsible in his conscience to the former for the fulfilment of his
desires, responsible to the latter by the law for the satisfaction
of their rights. In him the right of property vests previous to its
distribution, and this during the exercise of his duty, almost as fully
and effectively as if the goods he has to apportion were his own. The
legatees under a will, whether their bequests be general or specific,
acquire only an anticipatory benefit until the time arrives for the
complete conveyance of their legacies, either according to the terms of
the will or the rule of the law. Until then the deputy of the testator
holds complete possession, and none can touch an iota of the chattels
without his permission. Consequently, the


ASSENT OF THE EXECUTOR

to the payment of a legacy is necessary before a legatee can touch the
property left to him; and if any of those who are benefitted under a
will take possession of his legacy without that assent, the executor
may maintain an action of trespass against him.

This is highly requisite; for a misapprehension of his duty, or a
negligence in the performance of it, might subject an executor to
serious loss. For instance, according to the law of England, a man’s
property is, in the first instance, after his death, to be applied
in the payment of his debts in their regular order--debts due to
the crown, debts of record, judgments, bonded and simple contract
debts--and if the effects prove insufficient, or if they are only
barely sufficient, to satisfy these, the legatees are all excluded
from any benefit under the will. And should he have paid any legacy
before the satisfaction of any debt, and it afterwards turn out that
the funds were not ample enough to pay both, he must either recover the
amount paid to the legatee, or satisfy the debt out of his own private
resources.

Should, however, the assets prove large enough to pay all the debts,
but insufficient to satisfy all the legacies, the legatees, and the
claims of all the general legatees, will abate in proportion; and if
he either pay, or suffer any one else to appropriate to themselves, a
legacy in full, while the rest were obliged to take only a quarter of
their bequests, they would have the right of compelling the executor
to refund to them the several amounts which they had lost by the undue
payment of one. As a protection, therefore, to the executor, his assent
to a legacy is necessary--not that he can unjustly withhold that assent
where the means are sufficient, or even proportionably sufficient--his
assent to a legacy is necessary before that legacy will vest or be
assured to the party to whom it is left. But this assent once given,
is evidence that the assets are sufficient, and an admission on his
part that the fund is competent to discharge the legacy; and should
he afterwards refuse to pay it, on the ground that it was not so, the
legatee may compel the payment out of his own private estate.

Without this assent, however, whatever may be inchoate rights of
the legatee, he has no vested rights; and even in the instance of a
specific legacy, though it be of a chattel real, as an estate, or of
a chattel personal, as a horse or piece of furniture, in the care or
custody of the legatee; and though the funds be sufficient to satisfy
all the claims, the executor, unless he has given his assent, may
maintain an action against the legatee for possession against his
will. Nor can the legatee take possession of his bequest without the
executor’s assent, even though the will of the testator should give
authority for that express purpose. Reason good is there that such
should be the case; for if the will of a testator could have the effect
of appointing his property without the assent of his executor, he
might appoint every sixpence of it to specific legatees, and defraud
every one of his creditors of their claims. Notwithstanding the extent
of his power, however, the executor cannot divest the legatee of his
inchoate right, or anticipatory property; and should he die before the
distribution of the effects, his representatives would take his share.
Yet for the vesting of the legacy, or the delivery of the bequest, the
assent of the executor is necessary; and what that assent consists in
we will now proceed to show.


NATURE OF THE ASSENT.

The law has prescribed no particular form in which this assent shall be
given, and a very slight intimation is held sufficient. Not only may
the executor authorize the legatee to take possession of the bequest
in direct terms, but indirect expressions, or relative acts, will have
the same effect--anything, indeed, from which an intended permission
can be construed. Thus, if the executor congratulate the legatee on his
legacy, or if a specific legacy be left to any one, and the executor
request him to keep or dispose of it, or if he in any way refer a third
party to the legatee as proprietor of his legacy, or if he himself
treat him, or treat with him as the proprietor. As for instance, where
an executor requested the lease of an estate left under a will which
he had to administer from a legatee, and accepted the lease which was
granted in accordance with his request, it was held that he allowed the
granter to be the proprietor of the estate which he had granted. An
assent to an estate in remainder is an assent to the present estate,
for a remainder can only be a continuation of an estate, and therefore
a part of it. Whenever property, however, is so divided, that it has
acquired two qualities, as is the case of land under a term for years,
where there is the real property, and the chattel real arising out of
it--the land and the rent--an assent to the legacy of one quality is
no assent to the legacy of the other, and therefore, an assent to the
legacy of the rent is no assent to the legacy of the land; but on the
principle that the greater comprises the less, assent to the legacy of
the land will carry assent to the legacy of the rent.


ABSOLUTE AND CONDITIONAL ASSENT.

The nature of _absolute_ assent is self-evident. It is an assent
given to a legacy, without reference to any contingent or dependent
circumstance, and when once given cannot be retracted, and the legacy
to which it pertains can be affected by nothing but the subsequent
discovery of debts, which may cause an abatement of its amount. How
that acts will be shown hereafter.

_Conditional_ assent is assent with a reservation, or with an
obligation upon the claim of the legatee; so that if the contingency
shall occur to which the reservation shall refer, the legacy shall
not vest; or if the obligation be not completed it shall lapse. In
either case, the condition must be precedent to the assent, or it is
no condition at all, and the executor can never afterwards impose it;
or, in other words, the assent is absolute. Thus, if a testator leave
a leasehold estate to one of his friends, but at the time of his death
there happen to be arrearages of rent, without payment of which the
property would revert to the lessor, and the executor assent to the
legacy, on condition that the arrearages be paid by the legatee. Should
the latter pay these arrears, he becomes entitled to the bequest; if
not, the legacy would lapse, for there is no assent. This is necessary;
for if the executor were to give an absolute assent to the legacy, he
would be obliged either to pay the arrears out of the general estate
to the loss of the other legatees, or out of his own pocket by their
compulsion. If, however, the executor be imprudent enough to assent
to the legacy on condition of something being done subsequent to its
reception by the legatee, as, for instance, with the proviso that he
shall pay the executor a certain sum annually, this in no way affects
the assent, and the legatee would take whether he performed his
condition or not. In the case of failure the executor could not divest
him, but must seek his remedy as he might.

The peculiar position of a fund out of which a legacy is to be
paid, though it may be required by the will that it should be given
absolutely, may make it necessary for the executor to impose a
condition, and he has a right to do so; and he may withhold the legacy
if that condition be not complied with, that is, provided it be
reasonable. But if he once part with the legacy, he at the same time
divests himself of the power of imposing stipulations, and he will have
no right afterwards to make that conditional, which by the terms of the
will was made absolute.

It should be observed that the executor’s assent to a legacy has
reference to the state of the fund at the time of the testator’s death,
and if through circumstances any alteration should take place in the
state of the fund before the payment of the legacy, he has no right
to mould his conduct and direct his assent upon that alteration, but
he must pass the legacy as he found it, and the legatee will have the
right either to accept it with its clogs, or abandon it altogether; and
whatever advantage accrues to his inchoate property after the death of
the testator, and before his actual acquisition of the legacy, to that
the legatee is fully entitled.

When once assent has been given to a legacy, the executor can never
afterwards retract; and notwithstanding a subsequent retraction, a
legatee of a _specific_ bequest has a right to his legacy, and has a
lien on the assets, and may follow them for that specific part; and
should the executor refuse to pay it, he may recover it by action
at law. An assent to a void legacy, however, is void; and should an
executor by mistake give such assent, the legatee acquires no right
thereby.

Assent may be given before the probate is obtained; for an executor’s
authority arises at the moment of the testator’s death; but if he has
not attained the age of twenty-one years, he is incapable, by the Act
of 38 Geo. III., c. 87, of exercising the functions of his office, and
his assent before that time is consequently void.



CHAPTER VI.

PAYMENT OF LEGACIES.


With respect to the _time of paying legacies_, it may be observed that
whilst, on the one hand, the assent of an executor is necessary to the
title of a legacy, the law has taken care that he shall not be hurried
into the performance of his important duty, and be led into errors
without due deliberation, and has provided therefore that he shall
not be compelled to pay the bequests of his testator before a year
has expired from the period of his death. This custom is adopted from
the civil law, and it is conceived that during this time he will have
opportunity of fully informing himself as to the state of the property
and its competency to pay all the calls which either the will of the
deceased has imposed in the shape of legacies, or which have arisen
from his proceedings in the shape of debts. An executor, therefore, who
after the satisfaction of all these leading calls, shall pay over the
remainder of the estate, if any, to the residuary legatee, cannot plead
that he has _fully_ and rightly parted with all the property, in reply
to his testator’s liability on a covenant which is only made apparent
after that time and within twelve months of his decease. Against the
legatees, indeed, who have obtained too much, and before the time, he
has a remedy; for it was decided in the case of _Livesey_ v. _Livesey_,
that where an executor had by mistake made payment of an annuity before
the legatee was entitled to receive it, he was entitled to retain the
amount of the payments he had made out of the future payments. And if
a legacy be paid in instalments, and through inadvertence the executor
pay a larger amount in the first instalment than he ought to have
done, he may either retain it altogether out of the next, or deduct it
equally from each of the subsequent instalments.


THE LEGATEES.

If a testator leave a legacy to an individual “and to the heir of his
body,” or to a female, “and to be secured to her and to the heirs of
her body,” or to one “and to her issue,” they are _absolute_ legacies,
the sole and entire property of the party to whom they are left, and
those parties are entitled to receive them. Such is the case also where
a legacy is left to a female, “when and if she should attain the age
of twenty-one, to her sole and separate use; and in case of her death,
having children, her share to go her children,” and to her personally,
or to any deputy or attorney, as the law phrases it, properly
authorized to receive it, must the legacy be paid. But if a legacy be
only generally expressed as to be given to a certain individual, and
“to her heirs or children,” the legatee only takes a _life interest_.

Where legacies are left to each of a certain number of relatives,
_or_ to their respective child or children, and should any of them
die without a child, the share reverting to the residuary legatee,
the relatives so named who survived the testator will each take their
share absolutely; for the law cannot contemplate so distant an event
as the possibility of the legatees having no children all their lives,
and therefore passes the property of the bequest to them in full, and
thereby destroys any reversionary right of the residuary legatee.

When a legacy is left to an infant, or person under twenty-one years of
age, payable on his attaining that age, and he die before the time, his
representative, although he will inherit the property, cannot claim it
until the period arrives when the party through whom he claims would
have received it. But if the will states that the legacy is to carry
interest, the representative can claim it immediately on the death of
his principal. Should a legacy be made payable out of _land_, at some
future time, although it should carry interest in the meantime, it was
decided in _Gowler_ v. _Standerwick_, that if the legatee should die
before the time arrives, the fund should not be raised until that time,
securing, nevertheless, a personal fund for a future or contingent
legatee. When, however, it was stated by the will that certain legacies
should be paid on the land, _but expressed neither_ time nor _manner_
in which the money should be raised, nor did it appear that the estate
was a reversion, which was in fact the case, it was held that the
estate should be disposed of in order to raise the legacies, and that
they should be paid with interest from the time of the testator’s
death, and not from the period when the estate would accrue.

Should the will express that a legatee is to take on attaining the age
of twenty-one, and in the event of his dying before twenty-one, then
that it is to go to another, that other person will take the legacy
immediately on the death of the first-named legatee, if he should
die before twenty-one, because he does not claim through the first
party, but, in consequence of a direct right which became his on the
death of that party. But in the case of _Moore_ v. _Godfrey_, where
legacies were given to three co-heiresses, to be paid to them on their
respective marriages, and in case of the death of any of them before
marriage, her or their share to go to the survivor or survivors, and
one of the sisters did die unmarried, it was held, that the portion
of the deceased did not accrue to her sisters, any more than their
original shares, until the period of their marriage, according to the
terms of the original devise.

Where stock is left to trustees to pay the dividends from time to time
to a married woman for her separate use, the bequest is an unlimited
one, and passes the capital as well as its interest, and she may
appoint or direct its disposal at her death. And where a certain sum
had been left to trustees, in trust, to pay the dividends to a party,
until an exchange of certain lands should be made between him and
another party, the capital then to be equally divided between them, and
the latter died before the time for making the exchange expired, the
former party obtained the whole of the legacy.

If a legatee is to receive an estate, including residuary legateeship,
on condition of paying the debts of the deceased, and he take the
estate, he is liable for the whole of the debts, though they may exceed
the value of the estate tenfold.

Conditions may be annexed to legacies, which in some cases become
substantive parts of title, but are in others void and useless. Thus,
when a legacy was bequeathed, on condition that the legatee “should
change the course of life he had too long followed, and give up low
company, frequenting public houses, &c.,” it was held that it was a
condition that ought to be complied with, and the court directed an
inquiry to ascertain whether it had been before it would direct the
payment of the legacy. But when, on the contrary, a legacy was left to
a married woman, on condition that she lived apart from her husband,
the legacy was awarded notwithstanding the breach of the conditions,
because it was deemed contrary to good morals and Christian duty. When
a condition was annexed that the legatee should take, provided he did
not marry without the consent of the executor, expressed in writing,
and he did marry with the consent of such executor, but expressed
verbally and not in writing, it was held that he was entitled to the
legacy; and the consent of a co-executor, who had not acted, was not
considered requisite.

A legacy was given on condition that the legatee intimated to the
executor his willingness to forgive certain debts, and he filed a bill
in Chancery to recover his claims, it was decided that he had forfeited
the legacy. In a case where a testator authorized his executors, at
any time before a certain person attained the age of twenty-six, to
raise £600 by sale of stock, and apply the same towards his advancement
in life, or for any purposes for his benefit, as the executors might
think proper, and at the age of twenty-six he made an absolute gift of
the £600 to that person, the executors declined to act, and the court
refused to give any portion of it, until it could ascertain whether the
legatee’s position was such that he would suffer detriment unless the
whole, or a portion, were paid.


TO WHOM LEGACIES SHOULD BE PAID.

No small care is required on the part of executors to pay legacies
into the hands of those who are entitled to receive them; for it has
not unfrequently happened, that an honest man has been reduced to
ruin by the obligation to pay money over again out of his own pocket,
in consequence of mistakes, in regard to those who were entitled to
receive portions of the estate of his testator. Nor has it been a very
unfrequent circumstance, that legatees have been deprived of their
just, and perhaps necessary rights, in consequence of their inability
to recover from an executor that which he had wrongly paid to other
persons.

Many of these misfortunes have occurred from the misapplication of
legacies to infants; and the general rule is now established, that
an executor has no right to pay a legacy to the father of an infant,
or person under age, or to any other relative of his, without the
sanction of a court of equity. Even in the case of an adult child, such
payment must be made with the consent of the child, and confirmed by
his ratification at an after period. For cases have occurred, where,
with the most honest intentions, an executor has paid a legacy to the
father of an infant, and has been obliged to pay it over again to the
legatee himself on coming of age; and although several of these cases
have been attended with gross hardship to the executors, yet the custom
is attended with such serious danger to the interests of infants, that
the court would never consent to sanction the practice. Nor will it do
so, even though the testator on his death-bed desire it, as was shown
in the case of _Dagby_ v. _Tolferry_, where the points were extreme. An
executor will, however, be justified in paying a portion of a legacy
left to an infant, to the infant himself, or to his guardian, if it
should appear that the money is absolutely needed for necessaries for
such infant. But should a legacy to an infant be too inconsiderable
to apply for the authority of the Court of Chancery, the executor
would be justified, too, in paying it into the hands of the infant,
or its father; but he is not generally warranted in so doing. And if
the father institute a suit in a spiritual court, in order to have his
infant’s legacy paid into his hands, a prohibition against it may be
readily obtained by the executor.

Where the circumstances are difficult, and the executor knows not how
to act, he may shelter himself under the directions of the statute
36 Geo. III., c. 52, s. 2, by which it is enacted, that “where by
reason of the infancy, or absence beyond the seas, of any legatee,
the executor cannot pay a legacy chargeable with duty by virtue of
that act; that is to say, given by any will or testamentary instrument
of any person who shall die after the passing of that act, it shall
be lawful for him to pay such legacy, after deducting the duty
chargeable thereon, into the Bank of England, with the privity of
the Accountant-general of the Court of Chancery, to be placed to the
account of the legatee, for payment of which the Accountant-general
shall give his certificate, on production of the certificate of the
Commissioners of Stamps, that the duty thereon hath been fully paid;
and such payment into the Bank shall be a sufficient discharge for such
legacy, which, when paid, shall be laid out by the Accountant-general
in the purchase of 3 per cent consolidated annuities, which, with the
dividends thereon, shall be transferred or paid to the person entitled
thereto, or otherwise applied for his benefit, on application to the
Court of Chancery, by petition or motion, in a summary way.” But, as in
all other cases, the executor is not bound to pay the legacy into the
Bank until the end of a year from the testator’s death.

When personal property is bequeathed for life to one party, with a
direction that it shall go to another after his death, the property
is retained by the executor, who must invest it in the 3 per cent.
consols, until the death of the first legatee, when it must be handed
to him. But this rule does not hold where a testator dies abroad,
having made his will out of this country, unless the first inheritors
come here, in which case the person in remainder has a right to have it
invested.

If an executor obtain a power to divide a sum of money committed to his
charge, at his discretion, a court of equity will interfere to control
his division, if it be unreasonable; as, where a testator left £1,100
to be divided between his two daughters (one of whom was by a former
marriage), at the discretion of their mother, and she gave £1,000
to her own child, and only £100 to the other, her distribution was
overruled, and an equal division was made. The misbehaviour, however,
of any of the children, will form a sufficient plea for unequal
division.

In a case where a testator had left a sum of money to a certain person,
but left it to the discretion of the executors out at interest, if they
should think such a disposition more to his advantage, with orders
to pay him the dividends, and directing the principal to be divided
amongst his children at his death, or at the legatee’s discretion in
default of children, and one of the executors died, and the other
renounced the trust, it was held that the legacy was absolute to the
legatee, and it was accordingly paid to him.

Another instance of unexpected contingency occurred in the case of
_Birch_ v. _Wade_, where the testator willed that one-third of his
principal estate and effects should be left entirely at the disposal of
his wife, if she should think proper, among his relations, after the
death of his sisters; she died without making any disposition, and it
was held a trust for her next of kin at the time of her death.

A legacy left to a married woman must be paid to her husband; and even
where she was living separated from her husband, without maintenance,
and the executor paid her a legacy and took her receipt for it, he
was compelled, on suit from the husband, to pay it over again with
interest. Nor is the rule altered in a case of divorce, _a mensâ et
thoro_; for there the husband alone can release it. But the executor
may decline to pay it to him, if it amounts to £200, unless he has
made, or will make, a sufficient provision for his wife. And if a woman
who is, or has been, married, becomes entitled to a legacy, the court
will require a positive affidavit that it has not been in any way
settled, before it will decree payment to her personally.

Money bequeathed to a charity established out of England, must be paid
to the persons named by the testator to receive it.

Legacies left to a bankrupt become the property of his assignees,
unless his certificate be signed, and even then, unless it has been
allowed by the Lord Chancellor; and they must, therefore, under such
circumstances, be paid to his assignees.

As the law now stands, all legacies are subject to the debts of
the testator, unless there be sufficient assets to pay both debts
and legacies; and in the event, therefore, of the estate proving
insufficient for the debts, after some or all of the legacies are
paid, the executor can compel the legatees to refund altogether, or in
proportion to the deficiency.

Under the will of a person residing abroad, or in the colonies,
legacies are payable in the currency of the country where the testator
resided at the time the will was made. Nor does it affect the case
that he has effects in this country as well as there, unless he shall
have separated the funds by his will, and charged the legacies on his
English property. When some legacies are described as _sterling_, and
others not so, they must be paid accordingly, and in compliance with
such description. So also, if a testator bequeath a legacy, either of
a single sum of money, or of an annuity charged on lands which are in
another country, the full amount shall be paid according to English
count, and without any deductions for the expenses of remittance.


DUTY UPON LEGACIES.

The executor is responsible for the duties upon all legacies, and must
pay them. He, therefore, pays every legacy specified in the will, short
of the amount which he has to deduct for duty; and on its payment he is
bound to take a property stamp receipt, according to the value of the
legacy and the relationship of the legatee to the testator.

A bond debt forgiven by will is a legacy, and therefore liable to duty.
Duty was charged upon a legacy of £50 a-year, to be laid out in bread
and divided among the poor of the parish, although some of them only
received about two shillings a-year each. But a residue to be divided,
in which the several recipients did not receive more than £15 each,
was not chargeable, though had any of the legatees been entitled to
more than £20, their share would have been.

Where a legacy is directed to be paid “without deductions” or “free
of expense,” the executors must pay the amount in full, and discharge
the duty from some other fund. Such, also, will hold with regard to
annuities as well as sole legacies. An expression, also, of “clear of
all outgoings and taxes,” with respect to an annuity, will carry the
same privilege.

If by the will a legacy be given free of duty, and by the codicil that
legacy is revoked, and a larger one given by way of increase, it is
equally free from duty as the original legacy. But if an annuity be
left in the body of the will, free from all stamps and taxes, with a
gift over, which is revoked by the codicil, and a small annuity left,
without the gift over, it is held to be altogether a new legacy, and
not entitled to exemption from duty.

Where a testator died in India, where his executors also lived, and
where all his property was situate, it was held that a legacy remitted
to a legatee in England was free from duty. When, however, part of such
a testator’s property was found in England, and a legatee instituted
a suit to have his legacy paid out of that portion of the assets, it
was liable to the duty. Property belonging to a foreigner, though it be
in this country and given to English legatees, is not liable to duty.
But American, Austrian, French, and Russian stock, if the property of a
person domiciled in this country, is liable to legacy duty. Yet probate
duty is not payable upon property situated in a foreign country, though
brought into this, and administered by an English executor.

In general it may be observed, that where an executor has inadvertently
paid a legacy without deducting the duty, he can compel the legatee to
refund, and in one instance, when an annuity had been paid for four
years without deducting the duty, until the executor had assigned the
whole of his interest, he was deemed to be only the surety of the
legatee, and could compel him to return accordingly.


INTEREST ON LEGACIES.

A distinction formerly prevailed as to the quantum of interest
payable on legacies charged on lands, and such as were chargeable on
personal property, for it was deemed but fair that as land never
produces a profit equal to the interest on money, so the interest
on a legacy charged on such property, should be one per cent. lower
than that charged on personalty. But the distinction is now set
aside, and whether legacies are charged on realty or personal estate,
the established practice is to allow only _four per cent._ where no
other rate of interest is specified by the will. This custom prevails
upon all legacies administered in England whether derived from home,
colonial, or foreign property.

When interest is payable upon a legacy, can alone be learned from
the will itself. Not that interest will only be paid when the will
expressly states that it should be, for the greater number of cases are
those in which interest has been paid from inference of the testator’s
intention as derived from the construction of his expressions. But
these are so various, that any attempt to specify the principles
on which the construction for interest is based would be futile; a
careful attention to the wording of the will generally enables any
one of ordinary understanding to ascertain when he may be entitled to
interest, when that effect is not plainly expressed. The ordinary rule
is, that wherever a legacy is made payable out of a fund bringing
interest at the death of a testator, as a mortgage or money in the
funds, the legatee is entitled to the interest his share of that fund
produces, until his legacy is paid; and wherever the bequest is made
upon property not bringing interest, as when a sum is left to a party
to be raised out of houses or land to be sold, the legatee is not
entitled to any such benefit.



CHAPTER VII.

THE ADEMPTION, CUMULATION, AND ABATEMENT OF LEGACIES.


No care is too great to give a precise expression to a testator’s
will, and difficulties enough often arise after every care has been
taken to avoid misconstruction, and therefore there cannot be too much
care spent in endeavouring to ascertain, as well as to express, the
meaning of a testament. But there are frequently other circumstances
which supervene to alter, enlarge, or altogether obviate the intentions
of a testator for the benefit of his relatives, without possibly any
cognizance on his part. In some instances, the legacies which he
intended to give are, either by his own voluntary or inadvertent act,
or by the influence of circumstances, altogether taken away and lost
to the parties whom he nominates legatees; and this is called the
_ademption_ of legacies. In other cases, the amounts of the legacies
specified become, through the effect of other circumstances, increased,
and this is called the _cumulation_ of legacies. In others, again the
amounts, instead of being increased or destroyed, are decreased; and
this is called the _abatement_ of legacies.


THE ADEMPTION OF LEGACIES.

This ademption may be either express or implied; for the testator may
not only in express terms revoke a legacy which he had previously
given, but his intention to do so may be indicated by particular acts.
Thus, where a father gives to one of his children, a daughter, a legacy
of a certain amount, and afterwards gives her that amount, or a larger
one, as a marriage portion; or if a son, gives him the same amount or
a larger one, to establish him in business, or to be of benefit to
him for life in any other important way,--in both these cases, the
legacies are considered to be adeemed or lost to the parties. But this
ademption will not be implied, if the bequest is to come out of the
residue, nor if the provision given by the father in his life-time is
loaded with any contingency; as repayment, or the performance of any
particular covenant, as a consideration for the provision for them;
it is in a manner bought by the recipient, and it would be unjust to
deprive him or her of a free gift, as a legacy is always construed to
be by such a purchase. Neither is the legacy lost if the converse of
this be the case; that is, if the legacy itself, and not the provision,
be loaded with a limitation or contingency; for then it is evident
that the legacy and the provision are not identical, which they must
evidently be for the former to be lost. Nor is it adeemed if the
testator be a stranger, or the uncle of the legatee, or if the latter
be an illegitimate child, unless the father shall openly have assumed
the office and performed the duties of a parent to it. The principle of
_identity_ appears to be the governing rule; for as the law does not
allow the other legatees to be defrauded by a sum being paid to a party
under a will, which had been previously paid by the act of the testator
himself, so it must have clear evidence that the testator intended the
gift to supersede the legacy, before it will suffer the legatee to
be deprived of his right, simply because he appears to have enjoyed
more favour at the hands of the testator than was at first supposed.
Ademption, therefore, may always be resisted by evidence.

But a legacy is evidently adeemed when there is a decided impossibility
of paying it; as when the whole of the testator’s assets have been
swallowed up by his debts, which always precede legacies in their
right. When the object itself is lost which is made the subject of
a legacy, the latter is of course adeemed, as when a man leaves a
particular estate as a specific legacy without stating its value,
and he disposes of that estate before his death. Or if he leave the
furniture of a particular house, and he leave that house, and sell
the furniture before his death. But the removal of the whole of the
furniture to another house would be only an implied ademption, and
might be resisted by evidence of the testator’s intention to give that
particular furniture, wherever it might be, to the legatee. The bequest
of a debt to a debtor, of which debt the testator compels payment after
making his will, would be an ademption of the legacy; but the voluntary
payment of the debt before the death of the testator, would not, in all
probability, deprive the legatee of the amount which he had paid; the
ademption would then depend there, as it does, indeed, in all cases,
upon the intention of the testator, where circumstances do not offer an
insuperable bar to the fulfilment, such as we have stated above. The
object, therefore, should be to get that intention ascertained.


THE CUMULATION OF LEGACIES.

Cumulation, like ademption, very often depends upon the intention
of the testator, for it may be his desire to increase a legacy, or
he may, through inadvertence, state it twice over. For instance,
where a specific thing, as an estate, a horse, or a house, is stated
twice over, there is clearly no cumulation. When a like quantity is
bequeathed to the same legatee twice in the same instrument--as the
will, or stated in the will, and repeated in the codicil, unless the
word, “another,” or something equivalent to it, be annexed. So, also, a
subsequent statement of a certain sum, as an unconditional legacy, when
it had been previously stated as a conditional one, is no cumulation.
When, however, two unequal quantities are stated for the same legatee,
though they be in the same instrument, they are two legacies, and not
one. Such is the case, also, when two equal sums are given by different
instruments; and when both legacies are expressed as being given for
the same cause, they are not cumulative; it is too apparently an
inadvertence. But when two different reasons are assigned they are two
legacies; or when the legacies are of different natures, though of the
same amount, as one a sum of money, and the other an annuity, or two
annuities of similar amount, but differently paid, as one half-yearly,
and the other quarterly, or similarly paid, but out of different
estates, as one out of real, and the other out of personal, estate.

Extrinsic circumstances will also cumulate legacies, though stated
of the same amount; as, when after the date of the will, but before
the date of the codicil, the testator has received an increase of
fortune, for it is then evident that he intended to dispose of the
accession. Indeed other, very slight, circumstances are often admitted
as evidences of cumulation.


LEGACIES IN SATISFACTION OF DEBT.

Sometimes it happens that legacies, instead of being purely such, are
mere satisfactions of debt; and on this point, as on the two preceding,
the intention of the testator is the guide of judgment. In general, the
legacy of a debtor to his creditor, when the bequest is equal in amount
to the debt, or greater, is considered as a payment of the obligation.
But many circumstances may occur to obviate this construction, as if
the legacy be left conditionally; for a man has no right to take an
uncertain advantage as a recompense for a certain claim. Nor when the
advantage is postponed whilst the claim is present; as when the legacy
is to be paid at a future period, while the debt is due immediately on
the death of the testator, though the postponement be for ever so short
a period. Nor unless the legacy be in every way equal in advantage
to the debt. Nor when an express injunction is laid on the executor
for the payment of debts. Nor if the debt be contracted after the
date of the will, for then the satisfaction of it by the legacy could
not have been contemplated. Nor when the amount of the debt is open
and uncertain, as when there has been a running account between the
testator and legatee, which is unclosed at the death of the former, for
then he could not positively know of the debt.

In this instance, however, as in others, the law is favourable in its
construction of kindly intentions, and parol evidence is accordingly
admissible to refute the construction unfavourable to the legatee’s
interests. But, just as well as considerate, it decrees that a legacy
shall be considered as satisfaction of a debt in all cases where there
is a deficiency of assets.

On the contrary part, in order to secure the interests of both parties,
it is held that a legacy left to a debtor is to be considered as a
complete or partial satisfaction of his claim, for he is conceived to
have goods in hand for the payment of so much of the amount of his
debt. Through the influence of the same principle, money or goods
delivered or lent to a legatee, are considered as a _pro tanto_ payment
of his claim. Should the debt itself be bequeathed, it is a pure
legacy, if there are sufficient assets to satisfy all the other debts;
but if not, then this debt is considered as part of the assets, and the
legatee would share the benefit in proportion.


ABATEMENT AND REFUNDING OF LEGACIES.

In the event of there not being sufficient assets to satisfy the
debts of the testator, all the legacies under his will are subject
to abatement or reduction to pay the creditors; but in the event of
there being sufficient to satisfy the debts and specific legacies,
by adeeming the several legacies, they are adeemed or abated in
proportion; and should the executor have paid certain of the legacies,
or even all of them, and afterwards find debts which he was bound to
satisfy, he can compel the legatees to refund in proportion to the
amount of their bequests, until the claims are all paid. It is usual
to take an agreement to refund if necessary; but whether this is done
or not, the power of the executor remains as long as the claims of the
creditors can be enforced.



CHAPTER VIII.

LEGACIES TO EXECUTORS,--AND LEGATEES’ REMEDIES AGAINST THEM.


If a legacy be left to the executor, and he take possession of it
generally, he will hold it under his official capacity; and his union
of the double character of executor and legatee makes no difference,
and his legacy is subject to all the caution and consequences which are
required and wait upon other legacies--the same cumulation, abatement,
and ademption. He only has a right to secure himself first of the
several legatees. Assent is as necessary to his legacy as to others;
and it may be given either expressly or by implication; and he is
subject to the same liability and conditions. But yet he is entitled to
the full distinction between the character of executor and legatee; and
if he enter upon an estate as the former, it does not inculpate him in
liabilities until he shall have assumed them as the latter.

If a testator appoint his debtor to be his executor, the appointment
formally releases and destroys the debt, unless the executor renounces
the trust; and he is safe against all but creditors of the estate, for
the bequest of a debt to an executor is always considered as a specific
bequest.

Should, however, this bequest be contradicted, as regards the legatees,
by the express terms of the will, or by strong inference, as where the
testator leaves a legacy, and directs it expressly to be paid out of
the debt due to him by the executor. In like manner, also, if he leave
the executor a legacy, it is evident that it is not to be cumulated
by the debt also. So, where a testator bequeathed large legacies, as
well as the residue of his estate, to his executors, one of whom was
indebted to him to the amount of £3,000, under bond, it was held that
the whole of the remainder, as it stood, should be equally divided
between them; that is, he that was not indebted became a creditor, to a
certain amount above him who had hitherto been a debtor to the estate.

An executor has a still further right, when he is not named as
expressly an executor in trust, and there is no appointment of the
residue of the estate, after all the debts and legacies are satisfied,
he, in right of his office, becomes residuary legatee; but, if either,
by inference, expression, or legacy, he is debarred from that
advantage, he becomes tenant in trust for the next of kin, and among
these he must divide the amount of the testator’s property.


LEGATEES’ REMEDY AGAINST THE EXECUTOR.

Though an executor hold no personal property in the estate of his
testator, he is responsible for the right care and custody of the
property under his charge, while for whatever mischief may arise from
the misapplication and injury of it before distribution, without any
fault of his wilfully committed, he can shelter himself under the
estate. All costs, consequently, which are incurred in following the
testator’s instruction, or in the right appropriation of the estate,
are to be paid out of that estate. But for all wilful negligence, or
improper conduct, he is answerable to the legatees, both at common law
and in equity, and is liable to pay the cost out of his own estate.

Appended is the list of duties payable upon legacies, and the amount of
which the executor is entitled to deduct before he pays the amount of
each legacy.

  +--------------------------------------------------------------------+
  |                                                                    |
  |    Rates of Duty, payable on Legacies, Annuities, Residues, &c.,   |
  |  of the Amount or Value of £20 and upwards, by Stat. 55 Geo. III.  |
  |                              cap. 184.                             |
  |                                                                    |
  +=========================+========================+=================+
  | The Description of the | Out of Personal Estate | Out of Real or   |
  | Legatee, Residuary     | only, if the Deceased  | Personal Estate, |
  | Legatee, or next of    | died any time _before_ | if the Deceased  |
  | Kin, _must be in the   | or upon the 5th April, | died _after_ the |
  | following Words of     | 1805.                  | 5th April, 1805. |
  | the Act_.              |                        |                  |
  +------------------------+------------------------+------------------+
  | To Children of the   } |                        |                  |
  | Deceased, and their  } |                        |   £1. per Cent.  |
  | Descendants, or to   } |                        |                  |
  | the Father or Mother } |    (no Legacy Duty)    |   £3.    do.     |
  | or any Lineal        } |                        |                  |
  | Ancestor of the      } |                        |                  |
  | Deceased             } |                        |                  |
  |                        |                        |                  |
  | To Brothers and      } |                        |                  |
  | Sisters of the       } |  £2. 10_s._ per Cent.  |   £5.    do.     |
  | Deceased, and their  } |                        |                  |
  | Descendants          } |                        |                  |
  |                        |                        |                  |
  | To Brothers and      } |                        |                  |
  | Sisters of the       } |                        |   £5.    do.     |
  | Father or Mother of  } |  £4. --        do.     |                  |
  | the Deceased, and    } |                        |                  |
  | their Descendants    } |                        |                  |
  |                        |                        |                  |
  | To Brothers and      } |                        |                  |
  | Sisters of a Grand-  } |                        |                  |
  | father or Grandmother} |  £5. --        do.     |   £6.    do.     |
  | of the Deceased,     } |                        |                  |
  | and their Descendants} |                        |                  |
  |                        |                        |                  |
  | To any Person in any } |                        |                  |
  | other Degree of Col- } |                        |                  |
  | lateral Consanguin-  } |  £8. --        do.     |  £10.    do.     |
  | ity, or to Strangers } |                        |                  |
  | in Blood to the      } |                        |                  |
  | Deceased             } |                        |                  |
  |                                                                    |
  | Where any Legatee _shall take Two_ or more distinct Legacies or    |
  | Benefits under any Will or Testamentary Instrument, which shall    |
  | together be of the Amount or Value of £20. each shall be charged   |
  | with Duty, although each or either may be separately under that    |
  | Amount or Value.                                                   |
  |                                                                    |
  | --> OBSERVE.--_The Duty on Annuities is payable by four Annual     |
  | Instalments in the first four years from the commencement of the   |
  | Annuity, and a penalty will be incurred if each of the succeeding  |
  | Instalments of Duty be not paid in due time._                      |
  |                                                                    |
  | _Should the Annuitant die before the four years have expired, the  |
  | date of his or her death must be communicated in writing to the    |
  | _Comptroller of the Legacy Duties._                                |
  |                                                                    |
  |                        The Husband or Wife of the Deceased is not  |
  |                            chargeable with Duty.                   |
  +====================================================================+
  |                                                                    |
  |                             PENALTIES.                             |
  |                                                                    |
  | The Receipt must be dated on the Day of signing, and the Duty paid |
  | _within 21 Day after_, under a Penalty of £10 per Cent. on the     |
  | amount of the _Duty_; and if the Duty be not paid within _Three    |
  | Months_ from the Date of the Receipt, a Penalty will be incurred   |
  | of £10 per Cent. on the _amount or value of the Legacy_:--and the  |
  | Commissioners of Stamps cannot, _under any circumstances_, Stamp   |
  | a Receipt on which the Duty shall not be paid within the time      |
  | limited, unless the Penalty be also paid.                          |
  |                                                                    |
  | NOTE.--Rents, Interests, or Dividends of Legacies, down to the     |
  |        Date of the Receipt, must be added to the Legacy, and Duty  |
  |        paid thereon.                                               |
  |                                                                    |
  +--------------------------------------------------------------------+


  LONDON:
  CLARKE, PRINTERS, SILVER STREET, FALCON SQUARE.



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