diff options
| -rw-r--r-- | .gitattributes | 4 | ||||
| -rw-r--r-- | LICENSE.txt | 11 | ||||
| -rw-r--r-- | README.md | 2 | ||||
| -rw-r--r-- | old/69686-0.txt | 2530 | ||||
| -rw-r--r-- | old/69686-0.zip | bin | 47661 -> 0 bytes | |||
| -rw-r--r-- | old/69686-h.zip | bin | 1587531 -> 0 bytes | |||
| -rw-r--r-- | old/69686-h/69686-h.htm | 3691 | ||||
| -rw-r--r-- | old/69686-h/images/cover-orig.jpg | bin | 628610 -> 0 bytes | |||
| -rw-r--r-- | old/69686-h/images/cover.jpg | bin | 814847 -> 0 bytes | |||
| -rw-r--r-- | old/69686-h/images/handbook.png | bin | 94198 -> 0 bytes |
10 files changed, 17 insertions, 6221 deletions
diff --git a/.gitattributes b/.gitattributes new file mode 100644 index 0000000..d7b82bc --- /dev/null +++ b/.gitattributes @@ -0,0 +1,4 @@ +*.txt text eol=lf +*.htm text eol=lf +*.html text eol=lf +*.md text eol=lf diff --git a/LICENSE.txt b/LICENSE.txt new file mode 100644 index 0000000..6312041 --- /dev/null +++ b/LICENSE.txt @@ -0,0 +1,11 @@ +This eBook, including all associated images, markup, improvements, +metadata, and any other content or labor, has been confirmed to be +in the PUBLIC DOMAIN IN THE UNITED STATES. + +Procedures for determining public domain status are described in +the "Copyright How-To" at https://www.gutenberg.org. + +No investigation has been made concerning possible copyrights in +jurisdictions other than the United States. Anyone seeking to utilize +this eBook outside of the United States should confirm copyright +status under the laws that apply to them. diff --git a/README.md b/README.md new file mode 100644 index 0000000..8ff00b0 --- /dev/null +++ b/README.md @@ -0,0 +1,2 @@ +Project Gutenberg (https://www.gutenberg.org) public repository for +eBook #69686 (https://www.gutenberg.org/ebooks/69686) diff --git a/old/69686-0.txt b/old/69686-0.txt deleted file mode 100644 index d47dadb..0000000 --- a/old/69686-0.txt +++ /dev/null @@ -1,2530 +0,0 @@ -The Project Gutenberg eBook of The hand-book of the Law of Legacies, -by Anonymous - -This eBook is for the use of anyone anywhere in the United States and -most other parts of the world at no cost and with almost no restrictions -whatsoever. You may copy it, give it away or re-use it under the terms -of the Project Gutenberg License included with this eBook or online at -www.gutenberg.org. If you are not located in the United States, you -will have to check the laws of the country where you are located before -using this eBook. - -Title: The hand-book of the Law of Legacies - Tyas' legal hand-books - -Author: Anonymous - -Release Date: January 2, 2023 [eBook #69686] - -Language: English - -Produced by: deaurider, Franciszek Skawiński and the Online Distributed - Proofreading Team at https://www.pgdp.net (This file was - produced from images generously made available by The - Internet Archive) - -*** START OF THE PROJECT GUTENBERG EBOOK THE HAND-BOOK OF THE LAW OF -LEGACIES *** - - - - - -TRANSCRIBER’S NOTE - -Obvious errors and omissions in punctuation have been fixed. - - - - - 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. - -*** END OF THE PROJECT GUTENBERG EBOOK THE HAND-BOOK OF THE LAW OF -LEGACIES *** - -Updated editions will replace the previous one--the old editions will -be renamed. - -Creating the works from print editions not protected by U.S. copyright -law means that no one owns a United States copyright in these works, -so the Foundation (and you!) can copy and distribute it in the -United States without permission and without paying copyright -royalties. Special rules, set forth in the General Terms of Use part -of this license, apply to copying and distributing Project -Gutenberg-tm electronic works to protect the PROJECT GUTENBERG-tm -concept and trademark. Project Gutenberg is a registered trademark, -and may not be used if you charge for an eBook, except by following -the terms of the trademark license, including paying royalties for use -of the Project Gutenberg trademark. If you do not charge anything for -copies of this eBook, complying with the trademark license is very -easy. You may use this eBook for nearly any purpose such as creation -of derivative works, reports, performances and research. Project -Gutenberg eBooks may be modified and printed and given away--you may -do practically ANYTHING in the United States with eBooks not protected -by U.S. copyright law. Redistribution is subject to the trademark -license, especially commercial redistribution. - -START: FULL LICENSE - -THE FULL PROJECT GUTENBERG LICENSE -PLEASE READ THIS BEFORE YOU DISTRIBUTE OR USE THIS WORK - -To protect the Project Gutenberg-tm mission of promoting the free -distribution of electronic works, by using or distributing this work -(or any other work associated in any way with the phrase "Project -Gutenberg"), you agree to comply with all the terms of the Full -Project Gutenberg-tm License available with this file or online at -www.gutenberg.org/license. - -Section 1. General Terms of Use and Redistributing Project -Gutenberg-tm electronic works - -1.A. By reading or using any part of this Project Gutenberg-tm -electronic work, you indicate that you have read, understand, agree to -and accept all the terms of this license and intellectual property -(trademark/copyright) agreement. If you do not agree to abide by all -the terms of this agreement, you must cease using and return or -destroy all copies of Project Gutenberg-tm electronic works in your -possession. If you paid a fee for obtaining a copy of or access to a -Project Gutenberg-tm electronic work and you do not agree to be bound -by the terms of this agreement, you may obtain a refund from the -person or entity to whom you paid the fee as set forth in paragraph -1.E.8. - -1.B. "Project Gutenberg" is a registered trademark. It may only be -used on or associated in any way with an electronic work by people who -agree to be bound by the terms of this agreement. There are a few -things that you can do with most Project Gutenberg-tm electronic works -even without complying with the full terms of this agreement. See -paragraph 1.C below. There are a lot of things you can do with Project -Gutenberg-tm electronic works if you follow the terms of this -agreement and help preserve free future access to Project Gutenberg-tm -electronic works. See paragraph 1.E below. - -1.C. The Project Gutenberg Literary Archive Foundation ("the -Foundation" or PGLAF), owns a compilation copyright in the collection -of Project Gutenberg-tm electronic works. Nearly all the individual -works in the collection are in the public domain in the United -States. If an individual work is unprotected by copyright law in the -United States and you are located in the United States, we do not -claim a right to prevent you from copying, distributing, performing, -displaying or creating derivative works based on the work as long as -all references to Project Gutenberg are removed. Of course, we hope -that you will support the Project Gutenberg-tm mission of promoting -free access to electronic works by freely sharing Project Gutenberg-tm -works in compliance with the terms of this agreement for keeping the -Project Gutenberg-tm name associated with the work. You can easily -comply with the terms of this agreement by keeping this work in the -same format with its attached full Project Gutenberg-tm License when -you share it without charge with others. - -1.D. The copyright laws of the place where you are located also govern -what you can do with this work. Copyright laws in most countries are -in a constant state of change. If you are outside the United States, -check the laws of your country in addition to the terms of this -agreement before downloading, copying, displaying, performing, -distributing or creating derivative works based on this work or any -other Project Gutenberg-tm work. The Foundation makes no -representations concerning the copyright status of any work in any -country other than the United States. - -1.E. Unless you have removed all references to Project Gutenberg: - -1.E.1. The following sentence, with active links to, or other -immediate access to, the full Project Gutenberg-tm License must appear -prominently whenever any copy of a Project Gutenberg-tm work (any work -on which the phrase "Project Gutenberg" appears, or with which the -phrase "Project Gutenberg" is associated) is accessed, displayed, -performed, viewed, copied or distributed: - - This eBook is for the use of anyone anywhere in the United States and - most other parts of the world at no cost and with almost no - restrictions whatsoever. You may copy it, give it away or re-use it - under the terms of the Project Gutenberg License included with this - eBook or online at www.gutenberg.org. If you are not located in the - United States, you will have to check the laws of the country where - you are located before using this eBook. - -1.E.2. If an individual Project Gutenberg-tm electronic work is -derived from texts not protected by U.S. copyright law (does not -contain a notice indicating that it is posted with permission of the -copyright holder), the work can be copied and distributed to anyone in -the United States without paying any fees or charges. If you are -redistributing or providing access to a work with the phrase "Project -Gutenberg" associated with or appearing on the work, you must comply -either with the requirements of paragraphs 1.E.1 through 1.E.7 or -obtain permission for the use of the work and the Project Gutenberg-tm -trademark as set forth in paragraphs 1.E.8 or 1.E.9. - -1.E.3. If an individual Project Gutenberg-tm electronic work is posted -with the permission of the copyright holder, your use and distribution -must comply with both paragraphs 1.E.1 through 1.E.7 and any -additional terms imposed by the copyright holder. Additional terms -will be linked to the Project Gutenberg-tm License for all works -posted with the permission of the copyright holder found at the -beginning of this work. - -1.E.4. Do not unlink or detach or remove the full Project Gutenberg-tm -License terms from this work, or any files containing a part of this -work or any other work associated with Project Gutenberg-tm. - -1.E.5. Do not copy, display, perform, distribute or redistribute this -electronic work, or any part of this electronic work, without -prominently displaying the sentence set forth in paragraph 1.E.1 with -active links or immediate access to the full terms of the Project -Gutenberg-tm License. - -1.E.6. You may convert to and distribute this work in any binary, -compressed, marked up, nonproprietary or proprietary form, including -any word processing or hypertext form. However, if you provide access -to or distribute copies of a Project Gutenberg-tm work in a format -other than "Plain Vanilla ASCII" or other format used in the official -version posted on the official Project Gutenberg-tm website -(www.gutenberg.org), you must, at no additional cost, fee or expense -to the user, provide a copy, a means of exporting a copy, or a means -of obtaining a copy upon request, of the work in its original "Plain -Vanilla ASCII" or other form. Any alternate format must include the -full Project Gutenberg-tm License as specified in paragraph 1.E.1. - -1.E.7. Do not charge a fee for access to, viewing, displaying, -performing, copying or distributing any Project Gutenberg-tm works -unless you comply with paragraph 1.E.8 or 1.E.9. - -1.E.8. You may charge a reasonable fee for copies of or providing -access to or distributing Project Gutenberg-tm electronic works -provided that: - -* You pay a royalty fee of 20% of the gross profits you derive from - the use of Project Gutenberg-tm works calculated using the method - you already use to calculate your applicable taxes. The fee is owed - to the owner of the Project Gutenberg-tm trademark, but he has - agreed to donate royalties under this paragraph to the Project - Gutenberg Literary Archive Foundation. Royalty payments must be paid - within 60 days following each date on which you prepare (or are - legally required to prepare) your periodic tax returns. Royalty - payments should be clearly marked as such and sent to the Project - Gutenberg Literary Archive Foundation at the address specified in - Section 4, "Information about donations to the Project Gutenberg - Literary Archive Foundation." - -* You provide a full refund of any money paid by a user who notifies - you in writing (or by e-mail) within 30 days of receipt that s/he - does not agree to the terms of the full Project Gutenberg-tm - License. You must require such a user to return or destroy all - copies of the works possessed in a physical medium and discontinue - all use of and all access to other copies of Project Gutenberg-tm - works. - -* You provide, in accordance with paragraph 1.F.3, a full refund of - any money paid for a work or a replacement copy, if a defect in the - electronic work is discovered and reported to you within 90 days of - receipt of the work. - -* You comply with all other terms of this agreement for free - distribution of Project Gutenberg-tm works. - -1.E.9. If you wish to charge a fee or distribute a Project -Gutenberg-tm electronic work or group of works on different terms than -are set forth in this agreement, you must obtain permission in writing -from the Project Gutenberg Literary Archive Foundation, the manager of -the Project Gutenberg-tm trademark. Contact the Foundation as set -forth in Section 3 below. - -1.F. - -1.F.1. Project Gutenberg volunteers and employees expend considerable -effort to identify, do copyright research on, transcribe and proofread -works not protected by U.S. copyright law in creating the Project -Gutenberg-tm collection. Despite these efforts, Project Gutenberg-tm -electronic works, and the medium on which they may be stored, may -contain "Defects," such as, but not limited to, incomplete, inaccurate -or corrupt data, transcription errors, a copyright or other -intellectual property infringement, a defective or damaged disk or -other medium, a computer virus, or computer codes that damage or -cannot be read by your equipment. - -1.F.2. LIMITED WARRANTY, DISCLAIMER OF DAMAGES - Except for the "Right -of Replacement or Refund" described in paragraph 1.F.3, the Project -Gutenberg Literary Archive Foundation, the owner of the Project -Gutenberg-tm trademark, and any other party distributing a Project -Gutenberg-tm electronic work under this agreement, disclaim all -liability to you for damages, costs and expenses, including legal -fees. YOU AGREE THAT YOU HAVE NO REMEDIES FOR NEGLIGENCE, STRICT -LIABILITY, BREACH OF WARRANTY OR BREACH OF CONTRACT EXCEPT THOSE -PROVIDED IN PARAGRAPH 1.F.3. YOU AGREE THAT THE FOUNDATION, THE -TRADEMARK OWNER, AND ANY DISTRIBUTOR UNDER THIS AGREEMENT WILL NOT BE -LIABLE TO YOU FOR ACTUAL, DIRECT, INDIRECT, CONSEQUENTIAL, PUNITIVE OR -INCIDENTAL DAMAGES EVEN IF YOU GIVE NOTICE OF THE POSSIBILITY OF SUCH -DAMAGE. - -1.F.3. LIMITED RIGHT OF REPLACEMENT OR REFUND - If you discover a -defect in this electronic work within 90 days of receiving it, you can -receive a refund of the money (if any) you paid for it by sending a -written explanation to the person you received the work from. If you -received the work on a physical medium, you must return the medium -with your written explanation. The person or entity that provided you -with the defective work may elect to provide a replacement copy in -lieu of a refund. If you received the work electronically, the person -or entity providing it to you may choose to give you a second -opportunity to receive the work electronically in lieu of a refund. If -the second copy is also defective, you may demand a refund in writing -without further opportunities to fix the problem. - -1.F.4. Except for the limited right of replacement or refund set forth -in paragraph 1.F.3, this work is provided to you 'AS-IS', WITH NO -OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT -LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PURPOSE. - -1.F.5. Some states do not allow disclaimers of certain implied -warranties or the exclusion or limitation of certain types of -damages. If any disclaimer or limitation set forth in this agreement -violates the law of the state applicable to this agreement, the -agreement shall be interpreted to make the maximum disclaimer or -limitation permitted by the applicable state law. The invalidity or -unenforceability of any provision of this agreement shall not void the -remaining provisions. - -1.F.6. INDEMNITY - You agree to indemnify and hold the Foundation, the -trademark owner, any agent or employee of the Foundation, anyone -providing copies of Project Gutenberg-tm electronic works in -accordance with this agreement, and any volunteers associated with the -production, promotion and distribution of Project Gutenberg-tm -electronic works, harmless from all liability, costs and expenses, -including legal fees, that arise directly or indirectly from any of -the following which you do or cause to occur: (a) distribution of this -or any Project Gutenberg-tm work, (b) alteration, modification, or -additions or deletions to any Project Gutenberg-tm work, and (c) any -Defect you cause. - -Section 2. Information about the Mission of Project Gutenberg-tm - -Project Gutenberg-tm is synonymous with the free distribution of -electronic works in formats readable by the widest variety of -computers including obsolete, old, middle-aged and new computers. It -exists because of the efforts of hundreds of volunteers and donations -from people in all walks of life. - -Volunteers and financial support to provide volunteers with the -assistance they need are critical to reaching Project Gutenberg-tm's -goals and ensuring that the Project Gutenberg-tm collection will -remain freely available for generations to come. In 2001, the Project -Gutenberg Literary Archive Foundation was created to provide a secure -and permanent future for Project Gutenberg-tm and future -generations. To learn more about the Project Gutenberg Literary -Archive Foundation and how your efforts and donations can help, see -Sections 3 and 4 and the Foundation information page at -www.gutenberg.org - -Section 3. Information about the Project Gutenberg Literary -Archive Foundation - -The Project Gutenberg Literary Archive Foundation is a non-profit -501(c)(3) educational corporation organized under the laws of the -state of Mississippi and granted tax exempt status by the Internal -Revenue Service. The Foundation's EIN or federal tax identification -number is 64-6221541. Contributions to the Project Gutenberg Literary -Archive Foundation are tax deductible to the full extent permitted by -U.S. federal laws and your state's laws. - -The Foundation's business office is located at 809 North 1500 West, -Salt Lake City, UT 84116, (801) 596-1887. Email contact links and up -to date contact information can be found at the Foundation's website -and official page at www.gutenberg.org/contact - -Section 4. Information about Donations to the Project Gutenberg -Literary Archive Foundation - -Project Gutenberg-tm depends upon and cannot survive without -widespread public support and donations to carry out its mission of -increasing the number of public domain and licensed works that can be -freely distributed in machine-readable form accessible by the widest -array of equipment including outdated equipment. Many small donations -($1 to $5,000) are particularly important to maintaining tax exempt -status with the IRS. - -The Foundation is committed to complying with the laws regulating -charities and charitable donations in all 50 states of the United -States. Compliance requirements are not uniform and it takes a -considerable effort, much paperwork and many fees to meet and keep up -with these requirements. We do not solicit donations in locations -where we have not received written confirmation of compliance. To SEND -DONATIONS or determine the status of compliance for any particular -state visit www.gutenberg.org/donate - -While we cannot and do not solicit contributions from states where we -have not met the solicitation requirements, we know of no prohibition -against accepting unsolicited donations from donors in such states who -approach us with offers to donate. - -International donations are gratefully accepted, but we cannot make -any statements concerning tax treatment of donations received from -outside the United States. U.S. laws alone swamp our small staff. - -Please check the Project Gutenberg web pages for current donation -methods and addresses. Donations are accepted in a number of other -ways including checks, online payments and credit card donations. To -donate, please visit: www.gutenberg.org/donate - -Section 5. General Information About Project Gutenberg-tm electronic works - -Professor Michael S. Hart was the originator of the Project -Gutenberg-tm concept of a library of electronic works that could be -freely shared with anyone. For forty years, he produced and -distributed Project Gutenberg-tm eBooks with only a loose network of -volunteer support. - -Project Gutenberg-tm eBooks are often created from several printed -editions, all of which are confirmed as not protected by copyright in -the U.S. unless a copyright notice is included. Thus, we do not -necessarily keep eBooks in compliance with any particular paper -edition. - -Most people start at our website which has the main PG search -facility: www.gutenberg.org - -This website includes information about Project Gutenberg-tm, -including how to make donations to the Project Gutenberg Literary -Archive Foundation, how to help produce our new eBooks, and how to -subscribe to our email newsletter to hear about new eBooks. diff --git a/old/69686-0.zip b/old/69686-0.zip Binary files differdeleted file mode 100644 index 3a7a2b0..0000000 --- a/old/69686-0.zip +++ /dev/null diff --git a/old/69686-h.zip b/old/69686-h.zip Binary files differdeleted file mode 100644 index 913458f..0000000 --- a/old/69686-h.zip +++ /dev/null diff --git a/old/69686-h/69686-h.htm b/old/69686-h/69686-h.htm deleted file mode 100644 index a0f5090..0000000 --- a/old/69686-h/69686-h.htm +++ /dev/null @@ -1,3691 +0,0 @@ -<!DOCTYPE html> -<html lang="en"> -<head> - <meta charset="UTF-8"> - <title> - The Hand-Book of the Law of Legacies, - by Robert Tyas—A Project Gutenberg eBook - </title> - <link rel="icon" href="images/cover.jpg" type="image/x-cover"> - <style> - -body { - margin-left: 10%; - margin-right: 10%; -} - - h1,h2,h3 { - text-align: center; /* all headings centered */ - clear: both; -} - -p { - margin-top: .51em; - text-align: justify; - margin-bottom: .49em; -} - -h1 span.t { - display: block; - font-size: 1.5em; - font-weight: normal; - margin-top: 0.5em; - margin-bottom: 1em; - letter-spacing: 0.1em; - word-spacing: 0.1em; - line-height: 1em; -} - -hr.chap {width: 65%; margin-left: 17.5%; margin-right: 17.5%;} -@media print { hr.chap {display: none; visibility: hidden;} } - -hr.r5 {width: 5%; margin-top: 1em; margin-bottom: 1em; margin-left: 47.5%; margin-right: 47.5%;} -hr.r15 {width: 15%; margin-top: 1.5em; margin-bottom: 1.5em; margin-left: 42.5%; margin-right: 42.5%;} - -div.chapter {page-break-before: always;} -h2.nobreak {page-break-before: avoid;} - -table { - margin-left: auto; - margin-right: auto; -} -table.autotable { border-collapse: collapse; } -table.autotableborder { - border-collapse: collapse; - border: 1px solid black; - border-collapse: collapse; -} -table.autotable td, -table.autotableborder th { padding: 4px; } - -.tdl {text-align: left;} -.tdr {text-align: right;} -.tdc {text-align: center;} - -.toc2row {text-indent: 2em; padding-left: 2em;} - - .small { - font-size: 70%; - letter-spacing: 0.15em; - word-spacing: 0.15em; - } - .big { - font-size: 130%; - letter-spacing: 0.1em; - word-spacing: 0.1em; - } - .big2 { - font-size: 130%; - letter-spacing: 0.1em; - word-spacing: 0.1em; - } - .bigdoublemargin { - margin-top: 3em; - margin-bottom: 3em; - } - .bigtopmargin { - margin-top: 3em; - } - .bigtopmargin2 { - margin-top: 4em; - } - -.pagenum { /* uncomment the next line for invisible page numbers */ - /* visibility: hidden; */ - position: absolute; - left: 92%; - font-size: smaller; - text-align: right; - font-style: normal; - font-weight: normal; - font-variant: normal; - text-indent: 0; -} /* page numbers */ - -.center {text-align: center;} - -.smcap {font-variant: small-caps;} - -.gesperrt -{ - letter-spacing: 0.2em; - margin-right: -0.2em; -} - -em.gesperrt -{ - font-style: normal; -} - -/* Transcriber's notes */ -.transnote {background-color: #E6E6FA; - color: black; - font-size:smaller; - padding:0.5em; - margin-bottom:5em; - font-family:sans-serif, serif; } - - /* ]]> */ .justify { - text-align: justify; -} - .bigtd { - font-size: 200%; -} - .borderbottom { - border-bottom: 1px solid black; - border-right: 1px solid black; -} - .smalltdindent { - text-indent: -0.75em; - padding-left: 0.75em; - width: 20%; -} - .borderleft { - border-left: 1px solid black; -} - .indent2 { - text-indent: 2em; -} - .bigtdindent { - text-indent: -1.5em; - padding-left: 1.5em; -} - .borderright { - border-right: 1px solid black; -} - .doublebottomborder { - border-bottom: double; -} - .nobottommargin { - margin-bottom: 0; -} - .blackletterdiv { - width: 15em; - height: 2em; - margin: auto; -} - .small8 { - font-size: 0.8em; -} - .tdwithspecialsymbol { - position: relative; - top: -0.5em; -} - .tocdiv { - margin: auto; - width: auto; -} - .toctable { - width: auto; -} - -.figcenter {margin: 2em auto; text-align: center; - page-break-inside: avoid; max-width: 100%;} -img {max-width: 100%; width: 100%; height: auto;} -.width270 {max-width: 260px;} -.x-ebookmaker-2 .width270 {width: 50%;} - - </style> -</head> -<body> -<p style='text-align:center; font-size:1.2em; font-weight:bold'>The Project Gutenberg eBook of The hand-book of the Law of Legacies, by Anonymous</p> -<div style='display:block; margin:1em 0'> -This eBook is for the use of anyone anywhere in the United States and -most other parts of the world at no cost and with almost no restrictions -whatsoever. You may copy it, give it away or re-use it under the terms -of the Project Gutenberg License included with this eBook or online -at <a href="https://www.gutenberg.org">www.gutenberg.org</a>. If you -are not located in the United States, you will have to check the laws of the -country where you are located before using this eBook. -</div> - -<p style='display:block; margin-top:1em; margin-bottom:0; margin-left:2em; text-indent:-2em'>Title: The hand-book of the Law of Legacies</p> -<p style='display:block; margin-left:2em; text-indent:0; margin-top:0; margin-bottom:1em;'>Tyas' legal hand-books</p> -<p style='display:block; margin-top:1em; margin-bottom:0; margin-left:2em; text-indent:-2em'>Author: Anonymous</p> -<p style='display:block; text-indent:0; margin:1em 0'>Release Date: January 2, 2023 [eBook #69686]</p> -<p style='display:block; text-indent:0; margin:1em 0'>Language: English</p> - <p style='display:block; margin-top:1em; margin-bottom:0; margin-left:2em; text-indent:-2em; text-align:left'>Produced by: deaurider, Franciszek Skawiński and the Online Distributed Proofreading Team at https://www.pgdp.net (This file was produced from images generously made available by The Internet Archive)</p> -<div style='margin-top:2em; margin-bottom:4em'>*** START OF THE PROJECT GUTENBERG EBOOK THE HAND-BOOK OF THE LAW OF LEGACIES ***</div> - - -<p class="center big">TYAS’ LEGAL HAND-BOOKS.</p> - -<hr class="r15"/> - - -<div class="figcenter width270" id="handbook"> - <img src="images/handbook.png" width="4836" height="797" alt="The Hand-Book"> -</div> - -<!-- -<div class="center blackletterdiv"> -<svg id="Warstwa_1" xmlns="http://www.w3.org/2000/svg" viewBox="0 0 311.38 48"><path d="M35.32,27.55l.87,.15c-.9,3.62-3.08,6.79-6.13,8.94-3.12,2.24-6.87,3.42-10.7,3.39-4.48,0-8.31-1.42-11.5-4.26-3.15-2.87-4.72-6.47-4.72-10.78,0-5.92,3.32-11.09,9.95-15.51-.18,0-.37,0-.56-.03-.19-.01-.38-.04-.57-.08-.21,0-.42,0-.63-.04h-.58c-4.58,0-7.88,2.19-9.89,6.57l-.86-.36c.86-3.39,2.45-6,4.76-7.83,2.31-1.83,5.26-2.75,8.84-2.75,1.13,.01,2.27,.09,3.39,.23,1.33,.15,2.89,.4,4.68,.75,3.55,.62,6.24,.92,8.06,.92,2.62,0,4.48-.94,5.59-2.83l.86,.26c-.21,2.26-1.13,4.01-2.77,5.24-1.64,1.23-3.65,1.85-6.04,1.86-.22,0-.56,0-1.02-.05s-.81-.05-1.02-.05v23.98c4.22-.96,7.55-3.52,9.98-7.7ZM9.73,14.92c-1.22,2.29-1.85,4.85-1.83,7.44,0,4.01,1.65,7.43,4.95,10.27,1.58-1.1,2.37-3.01,2.36-5.75V9.47c-2.33,1.1-4.16,2.91-5.48,5.44Zm13.63-4.01c-.31-.07-.63-.14-.99-.2s-.69-.13-.99-.18c-.26-.05-.52-.07-.78-.08v12.9c0,3.15-.97,5.56-2.9,7.24-.04,.03-.36,.28-.97,.74s-1.52,1.17-2.74,2.13c2.3,1.47,4.96,2.25,7.69,2.26h.63c.21,0,.43,0,.63-.03,.2-.01,.4-.04,.59-.08,.08-.04,.18-.05,.27-.05,.11,0,.21-.02,.31-.05V11.07c-.18-.03-.43-.08-.74-.15Z"/><path d="M37.81,37.23l1.89-1.78V10.29c0-2.33-.68-4.1-2.03-5.32l.38-.75c1.3,.71,2.47,1.64,3.46,2.74,1.29-1.68,3.12-2.75,5.48-3.23l.28,.59c-.22,.22-.46,.41-.71,.59-1.42,1.15-2.12,2.92-2.12,5.32v9.59l6.61-6.08,1.04,.97c1.01,.9,1.71,2.11,1.98,3.44,.21,1.21,.31,2.43,.28,3.66v10.64c0,2.55-.25,4.57-.76,6.07-.63,1.83-1.78,3.44-3.3,4.62-1.54,1.32-4.41,2.94-8.59,4.84l-.28-.97c.22-.11,.49-.24,.8-.4s.69-.35,1.13-.56c2.33-1.26,3.95-2.69,4.86-4.3,.88-1.54,1.32-3.81,1.32-6.83v-12.97c0-1.9-.5-3.28-1.51-4.14l-3.59,3.23v14.41l1.51,1.94-4.15,3.55-3.98-3.71Z"/><path d="M65.46,39.44c-3.08-1.79-5.84-2.91-8.28-3.34v-.59c1.11-.54,1.7-1.76,1.78-3.66v-11.67c0-1.36-.59-2.04-1.78-2.04l-.22-.59c2.15-.93,4.09-1.84,5.81-2.71,1.72-.88,3.26-1.73,4.62-2.57l6.57,8.4-9.74,8.06v4.94c1.94,.97,3.5,1.77,4.68,2.42l3.82-2.69,.54,.76-7.79,5.27Zm4.25-16.94l-5.49-7.04v11.51l5.49-4.46Z"/><path d="M118.41,40.7c-4.37-1.72-8.34-2.58-11.9-2.58-2.99,0-5.56,.52-7.73,1.57-1.02,.47-1.57,1.18-1.66,2.15,0,.45,.16,.88,.43,1.24l.06,.05s.03,.08,.06,.11l.31,.48c.04,.11,.1,.31,.19,.59,0,1.05-.49,1.57-1.47,1.57-1.19,0-1.86-.65-2.02-1.94v-.38c.02-1.12,.46-2.19,1.23-3.01,.3-.34,.63-.66,.98-.94,.45-.38,1-.83,1.66-1.37,2.53-2.04,3.8-3.87,3.8-5.48,0-1.43-.67-2.15-2.02-2.15-.94,0-1.78,.66-2.52,1.99l-.92-.22c.41-3.15,2.23-4.76,5.46-4.84,0-1.47-.33-2.67-.98-3.6-.74-1.14-2.02-1.81-3.37-1.78-1.58-.04-3.09,.68-4.05,1.94l-.92-.38c.65-1.72,1.7-2.94,3.13-3.65,1.31-.61,3.06-.92,5.27-.92,.04-2.47,.45-4.52,1.22-6.13,.9-1.83,2.39-3.4,4.48-4.72-1.18,.3-2.4,.47-3.62,.48-1.01-.05-2.02-.2-3.01-.43-.65-.14-1.21-.25-1.69-.31-.4-.06-.8-.1-1.2-.11-2.08,0-3.49,1.08-4.23,3.23l-1.1-.31c.37-1.75,1.25-3.36,2.52-4.62,1.38-1.35,3.22-2.13,5.15-2.15,.9-.03,2.27,.16,4.11,.59,1.34,.36,2.72,.57,4.11,.63,1.92,0,4.25-.57,6.99-1.72l.49,1.08c-.29,.18-1.06,.56-2.33,1.13-2.17,1.04-3.68,2.1-4.54,3.17-.94,1.26-1.41,2.91-1.41,4.94v12.7c0,2.22-.25,3.89-.74,5-.25,.43-.55,.97-.92,1.61s-.8,1.42-1.29,2.31c.12-.07,.28-.15,.46-.24,.2-.1,.39-.22,.57-.36,2.04-1.18,3.48-2.44,4.32-3.78,.84-1.33,1.26-3.06,1.26-5.19v-9.57c0-2.73,.2-4.61,.61-5.65,.61-1.68,1.98-3.08,4.11-4.19,2.63-1.34,5.41-2.35,8.28-3.01l.43,1.08c-1.02,.4-1.84,.71-2.45,.94s-1.04,.41-1.29,.51c-1.17,.54-2.22,1.29-3.13,2.2-.41,.47-.67,1.27-.8,2.42-.04,.21-.06,.42-.06,.63v6.83l10.18-7.45c.29,.18,.65,.42,1.1,.73l1.53,1.05c2.29,1.68,3.82,3.58,4.6,5.7,.57,1.68,.86,4.03,.86,7.04,0,2.37-.16,4.21-.49,5.54-.42,1.88-1.43,3.58-2.88,4.84-.65,.65-2.82,2.26-6.5,4.84-.16,.14-.57,.44-1.23,.91-.38,.33-.73,.69-1.04,1.08-.24,.25-.39,.57-.43,.91,0,.54,.29,.84,.86,.91,.47,0,.93-.11,1.35-.31h.18s.09-.02,.12-.05c1.06,0,1.6,.47,1.6,1.4,0,1-.67,1.58-2.02,1.72-.1,.04-.21,.06-.31,.05h-.22c-.86,.01-1.7-.3-2.33-.89-.62-.51-.98-1.27-.98-2.07,0-1.43,.92-3.11,2.76-5.04,.94-1,1.74-1.87,2.39-2.61,.53-.58,1.03-1.2,1.47-1.85,1.22-1.76,1.84-3.49,1.84-5.22-1.97-.7-4.04-1.08-6.13-1.13-4.62,0-9.34,2.12-14.16,6.35,.57,0,1.29,.03,2.15,.08l3.01,.19c1.19,.07,2.21,.12,3.07,.16,.86,.04,1.57,.05,2.15,.05,1.43,0,2.82-.82,4.17-2.47l1.1,.7-6.09,7.39Zm3.66-18.3c1.91,.05,3.81-.41,5.48-1.34-.29-2.29-1.9-4.39-4.84-6.29l-6.18,5.07v1.34c1.73,.82,3.62,1.24,5.54,1.22Zm-5.27,5.98c.06-.04,.14-.06,.21-.05,2.04-.63,3.73-.94,5.05-.94,1.82,.05,3.61,.4,5.32,1.02v-.27c0-.16,.02-.32,.05-.48v-4.41c-.03-.14-.05-.29-.05-.43v-.31c-1.71,.75-3.56,1.12-5.43,1.07-1.86-.03-3.7-.4-5.43-1.07v5.86h.27Z"/><path d="M151.7,39.84c-.14-.14-.31-.3-.51-.46-.23-.2-.46-.41-.67-.63-1.11-1.22-1.57-.9-1.78-2.76l-7.31,3.84c-2.76-2.12-4.14-4.34-4.14-6.67,0-2.94,1.43-6,4.3-9.19l.75-.86-4.62-8.28s.05,.05,.16,.05h.27s.07,.05,.11,.05h.59c2.58,0,4.77-.75,6.56-2.26l.21,.11,.31,.16c2.69,1.4,4.93,2.1,6.72,2.1,.79,0,1.6-.39,2.42-1.18l.71,.44c-1.22,1.86-1.85,3.64-1.89,5.32-.03,.39-.05,.81-.05,1.24v1.4l.31,10.19,1.47,.37c.03,1.29-.86-.11,0,0,.21,0,.2,2.46,.84,2.17l.11-.11,.05-.05c.08,0,.16-.04,.22-.11l.54,.65-5.69,4.46Zm-12.27-24.03l3.98,7.2,5.11,2.2v-6.4l-9.09-3.01Zm4.87,8.84c-.11,0-.08,.54-.33,1.61-.43,1.79-.58,2.42-.58,3.5,0,1.86-.54,3.84,1.68,5.89l3.44-2.83v-6.52l-2.9-1.24-1.31-.4Z"/><path d="M161.88,11.05c1.18,1.05,1.95,1.86,2.31,2.42,.5,.82,1.33,1.09,1.33,2.34l6.09-4.76,3.87,3.87,2.52-2.42,.77,.86c-.21,.21-.47,.48-.75,.81s-.61,.72-.97,1.18c-.68,1.04-1.02,2.72-1.02,5.05v10.7c0,1.72,.43,2.58,1.29,2.58,.31,0,.73-.2,1.24-.59v-.05l.43-.31,.65,1.02-5.64,4.52c-.3-.22-.58-.48-.83-.75-.31-.33-.66-.72-1.05-1.18-.9-1.26-1.34-3.23-1.34-5.91l-.67-11.85-2-.94-3.15,.21v14.73l1.83,1.94-4.62,3.78-4.57-3.87,2.1-1.94v-14c0-.08,0-.15,.05-.22v-1.02c-.03-1.22-.43-1.83-1.18-1.83-.49,.04-.96,.23-1.34,.54l-.65-.86,5.33-4.03Z"/><path d="M178.98,6.07l16.53,8.13c.66-.96,1.6-1.69,2.69-2.1l.27,.86c-.79,.82-1.18,2.12-1.18,3.87v17.58c-2.79,1.12-5.45,2.56-7.9,4.3-1.81-1.26-3.78-2.27-5.86-3.01-1.38-.43-2.81-.72-4.25-.86v-.63c1.04-.82,1.56-2.44,1.57-4.84V15.65c2.04-.36,1.72-.22,3.11-1.3l-5.45-2.08,.47-6.2Zm13.04,28.23l-.76-13.79-2.11-1.95c-.21,.21-1.55-1.09-1.73-.94s-.79,.73-1.1,.94v13.04l5.7,2.7Z"/><path d="M212.7,22.35c-.83,2.62-1.47,5.02-1.94,7.22l-9.25-.09c.61-1.84,1.25-4.19,1.93-7.04v-.09h9.25Z"/><path d="M252.55,13.57l-5.75,4.25,6.51,3.12v.76c-.65,.39-.97,1.16-.97,2.31v10.7c-5.99,.93-10.84,3.01-14.57,6.24-3.37-2.08-6.65-3.12-9.84-3.12-1.75-.02-3.48,.21-5.16,.7-2.33,.72-3.49,1.76-3.49,3.12,.04,.44,.2,.87,.46,1.24,.25,.35,.41,.76,.46,1.18,0,1.04-.48,1.56-1.45,1.56-1.08,0-1.68-.65-1.83-1.94v-.38c.02-1.12,.42-2.2,1.13-3.06,.75-.85,1.55-1.64,2.42-2.37,2.33-2.04,3.49-3.85,3.49-5.43,0-.62-.25-1.22-.7-1.64-.44-.44-1.04-.68-1.67-.67-1.22,0-2.08,.79-2.58,2.37l-.97-.05c.14-3.33,2.08-5.16,5.81-5.48,0-3.37-1.31-5.06-3.92-5.05-1.47,0-2.53,.73-3.17,2.2l-1.02-.27v-.11c.58-3.37,2.17-5.13,4.79-5.27,.43-.04,1.42,.07,2.96,.31,.11-2.54,.7-4.66,1.78-6.35,.97-1.5,2.6-2.97,4.89-4.41-1.61,.55-3.3,.86-5,.91-.93-.02-1.86-.18-2.74-.48-.18-.02-.36-.06-.54-.11l-1.08-.21c-.18-.03-.36-.06-.54-.08s-.36-.03-.54-.03c-1.72,0-2.71,1.08-2.96,3.23l-1.24-.05c.29-2.15,.95-3.86,1.99-5.11,1.18-1.44,2.8-2.15,4.84-2.15,1.47,.06,2.93,.27,4.35,.63,1.01,.25,1.87,.43,2.58,.54,.57,.09,1.14,.15,1.72,.16,2-.04,3.97-.54,5.75-1.45l.86,1.21c-.41,.24-.84,.45-1.29,.63-2.79,1.36-4.71,2.8-5.75,4.3-1.18,1.68-1.78,3.97-1.78,6.88v9.36c0,2.23-.25,3.98-.75,5.27-.47,1.15-1.51,2.53-3.12,4.14,1.16-.4,2.25-.95,3.27-1.63,.83-.56,1.55-1.27,2.12-2.1,.56-.83,.95-1.76,1.16-2.74,.25-1.2,.37-2.43,.35-3.66v-7.84c0-2.94,.29-5.05,.86-6.34,.75-1.65,2.26-3.1,4.52-4.36,2.54-1.42,5.25-2.51,8.06-3.23v-.05l7.3,9.89Zm-12.21,1.18v6.45l7.64-5.7-6.61-9.03c-1.68,.61-2.83,1.45-3.44,2.52-.54,.93-.81,2.35-.81,4.25v9.79c0,2.4-.32,4.32-.97,5.75-.68,1.54-1.99,2.96-3.92,4.25-.42,.3-.86,.58-1.32,.83-.48,.27-1,.54-1.53,.83,1.62-.39,3.28-.6,4.95-.65,1.64,.02,3.28,.29,4.84,.81V14.76h1.18Zm3.33,10.54c1.15,.02,2.29-.22,3.33-.7v-1.08l-4.72-2.36-1.94,1.45v2.04c1.06,.43,2.18,.65,3.32,.65h0Zm-1.45,3.98c.46-.07,.93-.1,1.4-.11,1.15-.01,2.29,.15,3.39,.48v-3.81c-1.09,.37-2.23,.57-3.39,.6-1.11-.03-2.21-.21-3.28-.54v3.69c.72-.14,1.34-.24,1.88-.31Zm-1.32,6.18c.18,.1,.37,.19,.57,.27l1.07,.54c1.05-.36,1.62-.59,1.72-.7h.05c.88-.38,1.77-.7,2.69-.97v-3.7c-1.1-.33-2.24-.51-3.39-.54-1.12,.03-2.22,.23-3.28,.59v4.25c.19,.08,.38,.17,.56,.27h0Z"/><path d="M267.64,35.59c-.6,.33-1.08,.59-1.43,.81-.63,.4-1.24,.78-1.81,1.16-.54,.35-1.05,.73-1.53,1.16-2.8-2.37-5.69-3.69-8.68-3.98v-.7c.63-.46,1.04-1.16,1.14-1.94,.06-.79,.11-1.5,.14-2.15s.05-1.24,.05-1.78V15.91c2.55-.9,4.85-2.4,6.72-4.35,2.25,1.74,4.81,3.05,7.53,3.86v19.09c-.82,.4-1.54,.76-2.14,1.08Zm-7.49-3.6l4.96,2.42V18.12l-4.96-2.42V31.99Z"/><path d="M285.66,35.67c-.57,.31-1.02,.59-1.35,.81-.6,.39-1.17,.78-1.71,1.16-.51,.35-.99,.74-1.44,1.16-2.64-2.37-5.37-3.69-8.18-3.98v-.7c.6-.48,.99-1.17,1.08-1.94,.06-.79,.11-1.5,.14-2.15,.03-.65,.04-1.24,.04-1.78V15.99c2.43-.92,4.6-2.41,6.34-4.35,2.1,1.73,4.52,3.04,7.11,3.87v19.09c-.78,.39-1.45,.75-2.02,1.07Zm-7.06-3.6l4.68,2.42V18.2l-4.68-2.42v16.29Z"/><path d="M305.66,37.14c-1.22-1.36-2.01-3.21-2.37-5.54l-6.82,5.54c-1.73-1.86-3.95-3.2-6.4-3.87v-.81c.74-.2,1.31-.77,1.51-1.5,.18-.72,.25-1.46,.21-2.2V7.47c.04-1.15-.13-2.29-.49-3.38-.42-1.07-1.17-1.97-2.15-2.58l.31-.7c1.56,.46,2.98,1.33,4.09,2.52,1.58-1.65,3.73-2.76,6.45-3.33l.16,.7c-.32,.29-.86,.72-1.61,1.29-.86,.86-1.29,2.43-1.29,4.72v9.85l6.83-6.61,5.04,5.38-5.74,5.21c.03,.14,.11,.22,.21,.22l.11,.11c.93,.97,1.59,1.68,1.99,2.15,.64,.73,1.14,1.57,1.47,2.48,.14,.64,.32,1.44,.51,2.39,.2,.95,.44,2.05,.72,3.3,.18,.68,.51,1.3,.97,1.83l1.45-1.18,.54,.81-5.71,4.49Zm-.86-19.2l-3.55-3.8-3.98,3.81v6.72l7.53-6.74Zm-4.89,15.07l3.23-2.69c-.54-2.83-1.74-4.91-3.6-6.23l-2.26,1.99v5.05l2.63,1.88Z"/></svg> -</div> ---> - -<p class="center small bigdoublemargin">OF THE</p> - - <h1><span class="t">LAW OF LEGACIES;</span></h1> - - -<p class="center small">CONTAINING</p> - -<p class="center big2">A STATEMENT OF THE NATURE OF LEGACIES,</p> - -<p class="center small">AND THE</p> - -<p class="center">ACCIDENTS TO WHICH THEY ARE SUBJECT;</p> - - -<p class="center small bigtopmargin">TOGETHER WITH</p> - -<p class="center big2">THE RIGHTS OF LEGATEES,</p> - -<p class="center small">AND</p> - -<p class="center">THE CAUSES AND MANNER OF THE ADEMPTION, CUMULATION, <br/> - AND ABATEMENT OF THEIR BEQUESTS.</p> - - -<p class="center bigtopmargin2">“Jam progressu futura.”</p> - - -<p class="center bigtopmargin2">LONDON:</p> - -<p class="center big">ROBERT TYAS, 8, PATERNOSTER ROW.</p> - -<p class="center small">AND SOLD BY</p> - -<p class="center">R. HASTINGS, 13, CAREY STREET, LINCOLN’S INN.</p> - -<hr class="r5"/> - -<p class="center">MDCCCXLI. -</p> - -<hr class="chap x-ebookmaker-drop"> -<div class="chapter"> -<p class="center">LONDON:</p> - -<p class="center">CLARKE, PRINTERS, SILVER STREET,<br/> -FALCON SQUARE. -</p> -</div> -<hr class="chap x-ebookmaker-drop"> - -<div class="chapter"> -<p><span class="pagenum" id="Page_v">[Pg v]</span></p> - -<h2 class="nobreak" id="PREFACE">PREFACE.</h2> -</div> - - -<p>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<span class="pagenum" id="Page_vi">[Pg vi]</span> -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.</p> -<hr class="chap x-ebookmaker-drop"> - -<div class="chapter"> -<p><span class="pagenum" id="Page_vii">[Pg vii]</span></p> - -<h2 class="nobreak" id="CONTENTS">CONTENTS.</h2> -</div> - - - -<div class="tocdiv"> -<table class="autotable toctable"> -<tr> -<td class="tdl"></td> -<td class="tdr"><span class="smcap">page</span></td> -</tr> -<tr> -<td class="tdl">CHAPTER I.</td> -<td class="tdr"><a href="#CHAPTER_I">1</a></td> -</tr> -<tr> -<td class="tdl toc2row"><span class="smcap">Introduction.—Legacies and Legatees</span></td> -<td class="tdr"><a href="#Chap1Sec1">1</a></td> -</tr> -<tr> -<td class="tdl toc2row"><span class="smcap">Legacies and Legatees</span></td> -<td class="tdr"><a href="#Chap1Sec2">3</a></td> -</tr> -<tr> -<td class="tdl">CHAPTER II.</td> -<td class="tdr"><a href="#CHAPTER_II">9</a></td> -</tr> -<tr> -<td class="tdl toc2row"><span class="smcap">The Assets</span></td> -<td class="tdr"><a href="#Chap2Sec1">9</a></td> -</tr> -<tr> -<td class="tdl toc2row"><span class="smcap">Real Assets</span></td> -<td class="tdr"><a href="#Chap2Sec2">10</a></td> -</tr> -<tr> -<td class="tdl toc2row"><span class="smcap">Personal Assets</span></td> -<td class="tdr"><a href="#Chap2Sec3">15</a></td> -</tr> -<tr> -<td class="tdl toc2row"><span class="smcap">Legal Assets of Choses in Action</span></td> -<td class="tdr"><a href="#Chap2Sec4">21</a></td> -</tr> -<tr> -<td class="tdl toc2row"><span class="smcap">Equitable Assets</span></td> -<td class="tdr"><a href="#Chap2Sec5">23</a></td> -</tr> -<tr> -<td class="tdl toc2row"><span class="smcap">Contingent and Dependent Assets</span></td> -<td class="tdr"><a href="#Chap2Sec6">27</a></td> -</tr> -<tr> -<td class="tdl">CHAPTER III.</td> -<td class="tdr"><a href="#CHAPTER_III">35</a></td> -</tr> -<tr> -<td class="tdl toc2row"><span class="smcap">Marshalling of the Assets</span></td> -<td class="tdr"><a href="#Chap3Sec1">35</a></td> -</tr> -<tr> -<td class="tdl">CHAPTER IV.</td> -<td class="tdr"><a href="#CHAPTER_IV">43</a></td> -</tr> -<tr> -<td class="tdl toc2row"><span class="smcap">Legacies.—General, Specific, Lapsed, Vested, Demonstrative</span></td> -<td class="tdr"><a href="#Chap4Sec1">43</a></td> -</tr> -<tr> -<td class="tdl toc2row"><span class="smcap">General Legacies</span></td> -<td class="tdr"><a href="#Chap4Sec2">44</a></td> -</tr> -<tr> -<td class="tdl toc2row"><span class="smcap">Specific Legacies</span></td> -<td class="tdr"><a href="#Chap4Sec3">45</a></td> -</tr> -<tr> -<td class="tdl toc2row"><span class="smcap">The Vesting of Legacies</span></td> -<td class="tdr"><a href="#Chap4Sec4">52</a></td> -</tr> -<tr> -<td class="tdl toc2row"><span class="smcap">The Lapsing of Legacies</span></td> -<td class="tdr"><a href="#Chap4Sec5">54</a></td> -</tr> -<tr> -<td class="tdl toc2row"><span class="smcap">Demonstrative Legacies</span></td> -<td class="tdr"><a href="#Chap4Sec6">56</a></td> -</tr> -<tr> -<td class="tdl">CHAPTER V.</td> -<td class="tdr"><a href="#CHAPTER_V">58</a></td> -</tr> -<tr> -<td class="tdl toc2row"><span class="smcap">Assent to Legacies</span></td> -<td class="tdr"><a href="#Chap5Sec1">58</a></td> -</tr> -<tr> -<td class="tdl toc2row"><span class="smcap">Assent of the Executor</span></td> -<td class="tdr"><a href="#Chap5Sec2">58</a></td> -</tr> -<tr> -<td class="tdl toc2row"><span class="smcap">Nature of the Assent</span></td> -<td class="tdr"><a href="#Chap5Sec3">61</a></td> -</tr> -<tr> -<td class="tdl toc2row"><span class="smcap">Absolute and Conditional Assent</span></td> -<td class="tdr"><a href="#Chap5Sec4">63</a></td> -</tr> -<tr> -<td class="tdl">CHAPTER VI.</td> -<td class="tdr"><a href="#CHAPTER_VI">67</a></td> -</tr> -<tr> -<td class="tdl toc2row"><span class="smcap">Payment of Legacies</span></td> -<td class="tdr"><a href="#Chap6Sec1">67</a></td> -</tr> -<tr> -<td class="tdl toc2row"><span class="smcap">The Legatees</span></td> -<td class="tdr"><a href="#Chap6Sec2">68</a></td> -</tr> -<tr> -<td class="tdl toc2row"><span class="smcap">To whom Legacies should be paid</span></td> -<td class="tdr"><a href="#Chap6Sec3">73</a></td> -</tr> -<tr> -<td class="tdl toc2row"><span class="smcap">Duty upon Legacies</span></td> -<td class="tdr"><a href="#Chap6Sec4">80</a></td> -</tr> -<tr> -<td class="tdl toc2row"><span class="smcap">Interest on Legacies</span></td> -<td class="tdr"><a href="#Chap6Sec5">82</a></td> -</tr> -<tr> -<td class="tdl">CHAPTER VII.</td> -<td class="tdr"><a href="#CHAPTER_VII">85</a></td> -</tr> -<tr> -<td class="tdl toc2row"><span class="smcap">The Ademption, Cumulation, and Abatement of Legacies</span></td> -<td class="tdr"><a href="#Chap7Sec1">85</a></td> -</tr> -<tr> -<td class="tdl toc2row"><span class="smcap">The Ademption of Legacies</span></td> -<td class="tdr"><a href="#Chap7Sec2">86</a></td> -</tr> -<tr> -<td class="tdl toc2row"><span class="smcap">Cumulation of Legacies</span></td> -<td class="tdr"><a href="#Chap7Sec3">89</a></td> -</tr> -<tr> -<td class="tdl toc2row"><span class="smcap">Legacies in Satisfaction of Debt</span></td> -<td class="tdr"><a href="#Chap7Sec4">90</a></td> -</tr> -<tr> -<td class="tdl toc2row"><span class="smcap">Abatement and Refunding of Legacies</span></td> -<td class="tdr"><a href="#Chap7Sec5">92</a></td> -</tr> -<tr> -<td class="tdl">CHAPTER VIII.</td> -<td class="tdr"><a href="#CHAPTER_VIII">94</a></td> -</tr> -<tr> -<td class="tdl toc2row"><span class="smcap">Legacies to Executors, and Legatees’ Remedies against them</span></td> -<td class="tdr"><a href="#Chap8Sec1">94</a></td> -</tr> -<tr> -<td class="tdl toc2row"><span class="smcap">Legatees’ Remedy against the Executor</span></td> -<td class="tdr"><a href="#Chap8Sec2">96</a></td> -</tr> -<tr> -<td class="tdl toc2row"><span class="smcap">Rates of Duty payable on Legacies, Annuities &c.</span></td> -<td class="tdr"><a href="#dutytable">97</a></td> -</tr> -</table> -</div> - - <span class="pagenum" id="Page_1">[Pg 1]</span> - - -<hr class="chap x-ebookmaker-drop"> - -<div class="chapter"> -<h2 class="nobreak" id="THE"><span class="small8">THE</span><br/> -LAW OF LEGACIES. -</h2> -</div> - -<hr class="r5"/> - -<div class="chapter"> -<h2 class="nobreak" id="CHAPTER_I">CHAPTER I.</h2> -</div> - -<h3 id="Chap1Sec1">INTRODUCTION.—LEGACIES AND LEGATEES.</h3> - - -<p>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<span class="pagenum" id="Page_2">[Pg 2]</span> -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<span class="pagenum" id="Page_3">[Pg 3]</span> -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.</p> - - -<h3 id="Chap1Sec2">LEGACIES AND LEGATEES.</h3> - -<p>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.</p> - -<p>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<span class="pagenum" id="Page_4">[Pg 4]</span> -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.</p> - -<p>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<span class="pagenum" id="Page_5">[Pg 5]</span> -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.</p> - -<p>An infant, if alive, though yet unborn, may -be a legatee; for it was decided in the case of -<i>Defflis</i> v. <i>Goldschmidt</i>, 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 <i>Trower</i> v. -<i>Butts</i>, 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.</p> - -<p><span class="pagenum" id="Page_6">[Pg 6]</span></p> - -<p>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 <i>three</i> was -written in mistake, instead of <i>four</i>. 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, <i>Earl</i> v. -<i>Wilson</i>, it was determined that the words “to -such child or children, if more than one, as A. -may happen to be <i>enciente</i> 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<span class="pagenum" id="Page_7">[Pg 7]</span> -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.</p> - -<p>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 <i>relations</i>, or <i>family</i>, -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, <i>personal representatives</i>, mean executors -and administrators, unless some accompanying -expression point out a different tendency. -<i>Next of kin</i> was decided to be construed in its -legal import for some time, but the decision was -overruled, and now it means <i>nearest of kin</i>; and a<span class="pagenum" id="Page_8">[Pg 8]</span> -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 <i>Booth</i> v. <i>Dean</i>, 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.</p> - -<p>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.</p> -<hr class="chap x-ebookmaker-drop"> - -<div class="chapter"> -<p><span class="pagenum" id="Page_9">[Pg 9]</span></p> - -<h2 class="nobreak" id="CHAPTER_II">CHAPTER II.</h2> -</div> - -<h3 id="Chap2Sec1">THE ASSETS.</h3> - - -<p>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<span class="pagenum" id="Page_10">[Pg 10]</span> -of every one else; hence it is on the other hand, -that by the custom of <i>gavel kind</i> 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 <i>real, personal legal, and equitable</i>, 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.</p> - - -<h3 id="Chap2Sec2">REAL ASSETS.</h3> - -<p>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<span class="pagenum" id="Page_11">[Pg 11]</span> -of common specialty or simple contract; but -that system is now obviated, and funds which -have descended to the heir in <i>fee simple</i>, that is -unentailed freeholds, and even an advowson so -descended, may be appropriated to the benefit of -specialty creditors. An estate <i>pur autre vie</i>, 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 <i>pur autre vie</i> 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.</p> - -<p>“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<span class="pagenum" id="Page_12">[Pg 12]</span> -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.</p> - -<p>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<span class="pagenum" id="Page_13">[Pg 13]</span> -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 <i>cestui que trust</i>.</p> - -<p>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.</p> - -<p>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<span class="pagenum" id="Page_14">[Pg 14]</span> -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.</p> - -<p>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.</p> - -<p>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.</p> - -<p>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,<span class="pagenum" id="Page_15">[Pg 15]</span> -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.</p> - - -<h3 id="Chap2Sec3">PERSONAL ASSETS.</h3> - -<p>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<span class="pagenum" id="Page_16">[Pg 16]</span> -is to be produced, we will follow the arrangement -into which they naturally fall.</p> - -<p>Animate <i>chattels</i>, as before they are converted -into assets they are properly called, are -divided into <i>domitæ</i> and <i>feræ naturæ</i>, 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<span class="pagenum" id="Page_17">[Pg 17]</span> -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 <i>feræ naturæ</i>, and are beyond -the reach of his domain.</p> - -<p>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<span class="pagenum" id="Page_18">[Pg 18]</span> -is consequently indirectly the property of the -owner of the soil.</p> - -<p>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.</p> - -<p>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<span class="pagenum" id="Page_19">[Pg 19]</span> -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.</p> - -<p>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 <i>tenant in -common</i>, instead of a <i>joint tenant</i>; 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<span class="pagenum" id="Page_20">[Pg 20]</span> -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.</p> - -<p>Occasionally it happens that chattels real are -changed into chattels personal, and thus become -available for the payment of legacies; and chattels<span class="pagenum" id="Page_21">[Pg 21]</span> -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 -<i>lands</i> 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 -<i>real</i> 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.</p> - - -<h3 id="Chap2Sec4">LEGAL ASSETS OF CHOSES IN ACTION.</h3> - -<p>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<span class="pagenum" id="Page_22">[Pg 22]</span> -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 <i>choses in action</i>, as well those -where the right of action accrued during the -life time of the testator, as after his death.</p> - -<p>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<span class="pagenum" id="Page_23">[Pg 23]</span> -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.</p> - - -<h3 id="Chap2Sec5">EQUITABLE ASSETS.</h3> - -<p>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<span class="pagenum" id="Page_24">[Pg 24]</span> -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 <i>pari passu</i> 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 <i>distribution</i> 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,<span class="pagenum" id="Page_25">[Pg 25]</span> -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.</p> - -<p>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 <i>Husband</i> v. <i>Pollard</i>, -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<span class="pagenum" id="Page_26">[Pg 26]</span> -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.</p> - -<p>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<span class="pagenum" id="Page_27">[Pg 27]</span> -the executor, he will still be responsible for them, -for the release is tantamount to an acknowledgment -of receipt.</p> - -<p>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 <i>choses in action</i>, -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.</p> - - -<h3 id="Chap2Sec6">CONTINGENT AND DEPENDENT ASSETS.</h3> - -<p>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,<span class="pagenum" id="Page_28">[Pg 28]</span> -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.</p> - -<p>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,<span class="pagenum" id="Page_29">[Pg 29]</span> -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.</p> - -<p>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<span class="pagenum" id="Page_30">[Pg 30]</span> -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.</p> - -<p>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.</p> - -<p>Limitation also often becomes a source whence<span class="pagenum" id="Page_31">[Pg 31]</span> -an executor derives assets. Thus in the case of -<i>Pinbury</i> v. <i>Elkin</i>, 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 <i>Chamey</i> v. <i>Graydon</i>, -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.</p> - -<p>Where a person who has a legacy bequeathed -to him out of a personal estate, and which legacy<span class="pagenum" id="Page_32">[Pg 32]</span> -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 <i>vest</i> the legacy; and his executors would -consequently be entitled to the amount as assets.</p> - -<p>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 <i>Watkins</i> v. -<i>Cheek</i>, 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<span class="pagenum" id="Page_33">[Pg 33]</span> -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.</p> - -<p>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,<span class="pagenum" id="Page_34">[Pg 34]</span> -if a lease be granted to a person for ten or -twenty years, as he shall choose, the executor -may elect.</p> - -<p>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.”</p> -<hr class="chap x-ebookmaker-drop"> - -<div class="chapter"> -<p><span class="pagenum" id="Page_35">[Pg 35]</span></p> - -<h2 class="nobreak" id="CHAPTER_III">CHAPTER III.</h2> -</div> - -<h3 id="Chap3Sec1">MARSHALLING OF THE ASSETS.</h3> - - -<p>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 <i>all</i> 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.</p> - -<p>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<span class="pagenum" id="Page_36">[Pg 36]</span> -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.</p> - -<p>Lands may be devised to be sold for the<span class="pagenum" id="Page_37">[Pg 37]</span> -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<span class="pagenum" id="Page_38">[Pg 38]</span> -<i>all</i> 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.</p> - -<p>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.</p> - -<p>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.”</p> - -<p>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<span class="pagenum" id="Page_39">[Pg 39]</span> -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<span class="pagenum" id="Page_40">[Pg 40]</span> -the heir, the heir shall be entitled to a recompense -out of the personal estate.</p> - -<p>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 -<i>Handley</i> v. <i>Roberts</i>, 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<span class="pagenum" id="Page_41">[Pg 41]</span> -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.</p> - -<p>Where a testator dies possessed of both copyhold -and freehold property, and he charges all -his <i>real</i> 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.</p> - -<p>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.</p> - -<p><span class="pagenum" id="Page_42">[Pg 42]</span></p> - -<p>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.</p> -<hr class="chap x-ebookmaker-drop"> - -<div class="chapter"> -<p><span class="pagenum" id="Page_43">[Pg 43]</span></p> - -<h2 class="nobreak" id="CHAPTER_IV">CHAPTER IV.</h2> -</div> - -<h3 id="Chap4Sec1">LEGACIES—GENERAL, SPECIFIC, LAPSED,<br/> -VESTED, DEMONSTRATIVE.</h3> - - -<p>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 <i>general</i> when a certain amount of -property is bequeathed to a particular person, -without any certain fund being appropriated for -its payment. They are <i>specific</i> when the particular -things are named, as well as the particular -persons to whom those things are bequeathed. -Legacies <i>lapse</i>, 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, <i>vested</i>, or made the -property <i>de jure</i> 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.<span class="pagenum" id="Page_44">[Pg 44]</span> -Farther, legacies are <i>demonstrative</i> 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.</p> - - -<h3 id="Chap4Sec2">GENERAL LEGACIES.</h3> - -<p>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, <i>standing in his name</i>,” 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<span class="pagenum" id="Page_45">[Pg 45]</span> -specific the object may be. Personal annuities, -given by will, are also general legacies.</p> - -<p>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.</p> - -<p>In the case of the <i>Attorney General</i> v. <i>Parkin</i>, -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.</p> - - -<h3 id="Chap4Sec3">SPECIFIC LEGACIES.</h3> - -<p>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<span class="pagenum" id="Page_46">[Pg 46]</span> -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.</p> - -<p>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 <i>Lawson</i> v. <i>Stitch</i>, a legacy -was stated as consisting of, or conveying a -certain sum of money, in a bag or chest, and<span class="pagenum" id="Page_47">[Pg 47]</span> -the whole of that money became a specific -legacy. Thus, also, in <i>Hinton</i> v. <i>Pinke</i>, 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 -<i>Mayott</i> v. <i>Mayott</i>, the principle being fully -developed, in the action of <i>All Souls’ College</i> -against <i>Coddington</i>. Specific legacies may also -be carved out of a specific chattel, as is partly -shown in the case of <i>Hinton</i> v. <i>Pinke</i>, just -cited; as, where the testator gives only <i>part</i> of -a debt, instead of the whole, which is owing to -him, at the time of his death, by a third party.</p> - -<p>Yet, in order to insure the descent of a specific -legacy, which is always <i>ceteris paribus</i>, -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 <i>Parrot</i> -v. <i>Worsfield</i> where a testator, reciting that he<span class="pagenum" id="Page_48">[Pg 48]</span> -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 <i>Willox</i> -v. <i>Rhodes</i>, 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 <i>Sayer</i> v. <i>Sayer</i>, -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.</p> - -<p>In some instances mistakes have arisen, in -consequence of the misapprehension of particular<span class="pagenum" id="Page_49">[Pg 49]</span> -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 <i>money</i> 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 <i>choses in action</i> 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 <i>Read</i> v. -<i>Stewart</i>, 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.</p> - -<p>Yet a liberal construction is put upon the -terms of a bequest, and an evident mistake -will be rectified, as in the case of <i>Penticost</i> v. -<i>Ley</i>, where the testatrix made a bequest of -£1,000, long annuities, standing in her name,<span class="pagenum" id="Page_50">[Pg 50]</span> -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 <i>Humphreys</i> v. -<i>Humphreys</i>, 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 <i>being about</i> £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<span class="pagenum" id="Page_51">[Pg 51]</span> -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 -<i>Carteret</i> v. <i>Carteret</i>, 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.</p> - -<p>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.</p> - -<p><span class="pagenum" id="Page_52">[Pg 52]</span></p> - - -<h3 id="Chap4Sec4">THE VESTING OF LEGACIES.</h3> - -<p>A legacy is said to <i>vest</i> 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 <i>payable</i> 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 <i>when</i>, -or <i>as soon as</i>, 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<span class="pagenum" id="Page_53">[Pg 53]</span> -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.</p> - -<p>This rule, however, respecting the vesting -of legacies applies only to legacies of personal -property transmissible to the legatee as <i>personalty</i>; -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<span class="pagenum" id="Page_54">[Pg 54]</span> -omitted, for the payment of interest is an adjudication -of the principal.</p> - - -<h3 id="Chap4Sec5">THE LAPSING OF LEGACIES.</h3> - -<p>A legacy is said to <i>lapse</i>, 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.</p> - -<p>One peculiar instance of this was shown in the -facts elicited in the case of <i>Tulk</i> v. <i>Houlditch</i>, 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.<span class="pagenum" id="Page_55">[Pg 55]</span> -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.</p> - -<p>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.</p> - -<p><span class="pagenum" id="Page_56">[Pg 56]</span></p> - -<p>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.”</p> - -<p>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.</p> - - -<h3 id="Chap4Sec6">DEMONSTRATIVE LEGACIES.</h3> - -<p>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<span class="pagenum" id="Page_57">[Pg 57]</span> -ascertained, are termed <i>demonstrative</i> legatees. -Such are often found in distant, or unknown, -or unrecognized relatives or friends of the -deceased.</p> -<hr class="chap x-ebookmaker-drop"> - -<div class="chapter"> -<p><span class="pagenum" id="Page_58">[Pg 58]</span></p> - -<h2 class="nobreak" id="CHAPTER_V">CHAPTER V.</h2> -</div> - -<h3 id="Chap5Sec1">ASSENT TO LEGACIES.</h3> - - -<p>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</p> - - -<h3 id="Chap5Sec2">ASSENT OF THE EXECUTOR</h3> - -<p>to the payment of a legacy is necessary before a -legatee can touch the property left to him; and<span class="pagenum" id="Page_59">[Pg 59]</span> -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.</p> - -<p>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.</p> - -<p>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<span class="pagenum" id="Page_60">[Pg 60]</span> -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.</p> - -<p>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<span class="pagenum" id="Page_61">[Pg 61]</span> -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.</p> - - -<h3 id="Chap5Sec3">NATURE OF THE ASSENT.</h3> - -<p>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<span class="pagenum" id="Page_62">[Pg 62]</span> -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<span class="pagenum" id="Page_63">[Pg 63]</span> -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.</p> - - -<h3 id="Chap5Sec4">ABSOLUTE AND CONDITIONAL ASSENT.</h3> - -<p>The nature of <i>absolute</i> 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.</p> - -<p><i>Conditional</i> 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<span class="pagenum" id="Page_64">[Pg 64]</span> -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.</p> - -<p>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<span class="pagenum" id="Page_65">[Pg 65]</span> -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.</p> - -<p>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.</p> - -<p>When once assent has been given to a legacy, -the executor can never afterwards retract; and notwithstanding -a subsequent retraction, a legatee -of a <i>specific</i> 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<span class="pagenum" id="Page_66">[Pg 66]</span> -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.</p> - -<p>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.</p> -<hr class="chap x-ebookmaker-drop"> - -<div class="chapter"> -<p><span class="pagenum" id="Page_67">[Pg 67]</span></p> - -<h2 class="nobreak" id="CHAPTER_VI">CHAPTER VI.</h2> -</div> - -<h3 id="Chap6Sec1">PAYMENT OF LEGACIES.</h3> - - -<p>With respect to the <i>time of paying legacies</i>, 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 <i>fully</i> -and rightly parted with all the property, in -reply to his testator’s liability on a covenant<span class="pagenum" id="Page_68">[Pg 68]</span> -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 <i>Livesey</i> v. -<i>Livesey</i>, 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.</p> - - -<h3 id="Chap6Sec2">THE LEGATEES.</h3> - -<p>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 -<i>absolute</i> 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<span class="pagenum" id="Page_69">[Pg 69]</span> -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 <i>life interest</i>.</p> - -<p>Where legacies are left to each of a certain -number of relatives, <i>or</i> 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.</p> - -<p>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<span class="pagenum" id="Page_70">[Pg 70]</span> -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 <i>land</i>, at some future time, although it -should carry interest in the meantime, it was -decided in <i>Gowler</i> v. <i>Standerwick</i>, 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, <i>but expressed neither</i> time nor -<i>manner</i> 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.</p> - -<p>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<span class="pagenum" id="Page_71">[Pg 71]</span> -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 <i>Moore</i> v. <i>Godfrey</i>, -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.</p> - -<p>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.</p> - -<p><span class="pagenum" id="Page_72">[Pg 72]</span></p> - -<p>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.</p> - -<p>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<span class="pagenum" id="Page_73">[Pg 73]</span> -legacy; and the consent of a co-executor, who -had not acted, was not considered requisite.</p> - -<p>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.</p> - - -<h3 id="Chap6Sec3">TO WHOM LEGACIES SHOULD BE PAID.</h3> - -<p>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<span class="pagenum" id="Page_74">[Pg 74]</span> -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.</p> - -<p>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<span class="pagenum" id="Page_75">[Pg 75]</span> -it do so, even though the testator on his death-bed -desire it, as was shown in the case of <i>Dagby</i> -v. <i>Tolferry</i>, 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.</p> - -<p>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<span class="pagenum" id="Page_76">[Pg 76]</span> -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.</p> - -<p>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<span class="pagenum" id="Page_77">[Pg 77]</span> -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.</p> - -<p>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.</p> - -<p>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<span class="pagenum" id="Page_78">[Pg 78]</span> -the legatee, and it was accordingly paid to -him.</p> - -<p>Another instance of unexpected contingency -occurred in the case of <i>Birch</i> v. <i>Wade</i>, 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.</p> - -<p>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, <i>a mensâ et thoro</i>; 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<span class="pagenum" id="Page_79">[Pg 79]</span> -settled, before it will decree payment to her -personally.</p> - -<p>Money bequeathed to a charity established -out of England, must be paid to the persons -named by the testator to receive it.</p> - -<p>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.</p> - -<p>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.</p> - -<p>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<span class="pagenum" id="Page_80">[Pg 80]</span> -legacies on his English property. When some -legacies are described as <i>sterling</i>, 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.</p> - - -<h3 id="Chap6Sec4">DUTY UPON LEGACIES.</h3> - -<p>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.</p> - -<p>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<span class="pagenum" id="Page_81">[Pg 81]</span> -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.</p> - -<p>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.</p> - -<p>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.</p> - -<p>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<span class="pagenum" id="Page_82">[Pg 82]</span> -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.</p> - -<p>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.</p> - - -<h3 id="Chap6Sec5">INTEREST ON LEGACIES.</h3> - -<p>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<span class="pagenum" id="Page_83">[Pg 83]</span> -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 <i>four per cent.</i> 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.</p> - -<p>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<span class="pagenum" id="Page_84">[Pg 84]</span> -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.</p> -<hr class="chap x-ebookmaker-drop"> - -<div class="chapter"> -<p><span class="pagenum" id="Page_85">[Pg 85]</span></p> - -<h2 class="nobreak" id="CHAPTER_VII">CHAPTER VII.</h2> -</div> - -<h3 id="Chap7Sec1">THE ADEMPTION, CUMULATION, AND ABATEMENT<br/> -OF LEGACIES.</h3> - - -<p>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 -<i>ademption</i> of legacies. In other cases, the -amounts of the legacies specified become, -through the effect of other circumstances, increased, -and this is called the <i>cumulation</i> of -legacies. In others, again the amounts, instead<span class="pagenum" id="Page_86">[Pg 86]</span> -of being increased or destroyed, are decreased; -and this is called the <i>abatement</i> of legacies.</p> - - -<h3 id="Chap7Sec2">THE ADEMPTION OF LEGACIES.</h3> - -<p>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<span class="pagenum" id="Page_87">[Pg 87]</span> -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 <i>identity</i> -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.</p> - -<p>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<span class="pagenum" id="Page_88">[Pg 88]</span> -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.</p> - -<p><span class="pagenum" id="Page_89">[Pg 89]</span></p> - - -<h3 id="Chap7Sec3">THE CUMULATION OF LEGACIES.</h3> - -<p>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,<span class="pagenum" id="Page_90">[Pg 90]</span> -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.</p> - -<p>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.</p> - - -<h3 id="Chap7Sec4">LEGACIES IN SATISFACTION OF DEBT.</h3> - -<p>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<span class="pagenum" id="Page_91">[Pg 91]</span> -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.</p> - -<p>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.</p> - -<p><span class="pagenum" id="Page_92">[Pg 92]</span></p> - -<p>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 <i>pro tanto</i> 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.</p> - - -<h3 id="Chap7Sec5">ABATEMENT AND REFUNDING OF LEGACIES.</h3> - -<p>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<span class="pagenum" id="Page_93">[Pg 93]</span> -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.</p> -<hr class="chap x-ebookmaker-drop"> - -<div class="chapter"> -<p><span class="pagenum" id="Page_94">[Pg 94]</span></p> - -<h2 class="nobreak" id="CHAPTER_VIII">CHAPTER VIII.</h2> -</div> - -<h3 id="Chap8Sec1">LEGACIES TO EXECUTORS,—AND LEGATEES’<br/> -REMEDIES AGAINST THEM.</h3> - - -<p>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.</p> - -<p>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<span class="pagenum" id="Page_95">[Pg 95]</span> -of the estate, for the bequest of a debt to an -executor is always considered as a specific -bequest.</p> - -<p>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.</p> - -<p>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<span class="pagenum" id="Page_96">[Pg 96]</span> -advantage, he becomes tenant in trust for the -next of kin, and among these he must divide -the amount of the testator’s property.</p> - - -<h3 id="Chap8Sec2">LEGATEES’ REMEDY AGAINST THE EXECUTOR.</h3> - -<p>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.</p> - -<p>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.</p> - -<hr class="chap x-ebookmaker-drop"> - -<p><span class="pagenum" id="Page_97">[Pg 97]</span></p> - -<table id="dutytable" class="autotableborder"> - <tr> - <th colspan="4" class="doublebottomborder">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.</th> - </tr> - <tr> - <td class="tdc borderbottom" colspan="2">The Description of the Legatee, Residuary Legatee, or next of Kin, <i>must be in the following Words of the Act</i>.</td> - <td class="tdl justify borderbottom smalltdindent borderright">Out of Personal Estate only, if the Deceased died any time <i>before</i> or upon the 5th April, 1805.</td> - <td class="tdl justify borderbottom smalltdindent">Out of Real or Personal Estate, if the Deceased died <i>after</i> the 5th April, 1805.</td> - </tr> - <tr> - <td class="tdl justify bigtdindent">To Children of the Deceased, and their Descendants, or to the Father or Mother or any Lineal Ancestor of the Deceased</td> - <td class="tdl bigtd">}</td> - <td class="tdc borderleft">(no Legacy Duty)</td> - <td class="tdc borderleft">£1. per Cent.</td> - </tr> - <tr> - <td class="tdl justify bigtdindent">To Brothers and Sisters of the Deceased, and their Descendants</td> - <td class="tdl bigtd">}</td> - <td class="tdc borderleft">£2. 10<i>s.</i> per Cent.</td> - <td class="tdc borderleft">£3. do.</td> - </tr> - <tr> - <td class="tdl justify bigtdindent">To Brothers and Sisters of the Father or Mother of the Deceased, and their Descendants</td> - <td class="tdl bigtd">}</td> - <td class="tdc borderleft">£4. — do.</td> - <td class="tdc borderleft">£5. do.</td> - </tr> - <tr> - <td class="tdl justify bigtdindent">To Brothers and Sisters of a Grandfather or Grandmother of the Deceased, and their Descendants</td> - <td class="tdl bigtd">}</td> - <td class="tdc borderleft">£5. — do.</td> - <td class="tdc borderleft" >£6. do.</td> - </tr> - <tr> - <td class="tdl justify bigtdindent">To any Person in any other Degree of Collateral Consanguinity, or to Strangers in Blood to the Deceased</td> - <td class="tdl bigtd">}</td> - <td class="tdc borderleft">£8. — do.</td> - <td class="tdc borderleft">£10. do.</td> - </tr> - <tr class="nobottommargin"> - <td class="tdl justify indent2" colspan="4">Where any Legatee <i>shall take Two</i> 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.</td> - </tr> - <tr class="tdwithspecialsymbol"> - <td class="tdl justify indent2" colspan="4"><span class="bigtd">☞</span> OBSERVE.--<i>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.</i></td> - </tr> - <tr> - <td class="tdl justify indent2" colspan="4"><i>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.</i></td> - </tr> - <tr> - <td class="tdc doublebottomborder" colspan="4">The Husband or Wife of the Deceased is not chargeable with Duty.</td> - </tr> - <tr> - <td class="tdc" colspan="4">PENALTIES.</td> - </tr> - <tr> - <td class="tdl justify" colspan="4">The Receipt must be dated on the Day of signing, and the Duty paid <i>within 21 Day after</i>, under a Penalty of £10 per Cent. on the amount of the -<i>Duty</i>; and if the Duty be not paid within <i>Three Months</i> from the Date of the Receipt, a Penalty will be incurred of £10 per Cent. on the <i>amount or -value of the Legacy</i>:—and the Commissioners of Stamps cannot, <i>under any circumstances</i>, Stamp a Receipt on which the Duty shall not be paid -within the time limited, unless the Penalty be also paid.</td> - </tr> - <tr> - <td class="tdc" colspan="4"><hr class="r5"/></td> - </tr> - <tr> - <td class="tdc" colspan="4">NOTE.—Rents, Interests, or Dividends of Legacies, down to the Date of the Receipt, must be added to the Legacy, and Duty paid thereon.</td> - </tr> -</table> - - -<p><span class="pagenum" id="Page_98">[Pg 98]</span></p> - -<hr class="chap x-ebookmaker-drop"> - -<div class="chapter"> -<p class="center"> -<span class="small8">LONDON:<br> -CLARKE, PRINTERS, SILVER STREET, FALCON SQUARE.</span><br> -</p> -</div> - -<hr class="chap x-ebookmaker-drop"> - -<div class="chapter transnote"> -<h2 class="nobreak" id="Transcribers_Notes">Transcriber’s Notes</h2> - -<p class="center">Obvious errors and omissions in punctuation have been fixed.</p> - -</div> - -<div style='display:block; margin-top:4em'>*** END OF THE PROJECT GUTENBERG EBOOK THE HAND-BOOK OF THE LAW OF LEGACIES ***</div> -<div style='text-align:left'> - -<div style='display:block; margin:1em 0'> -Updated editions will replace the previous one—the old editions will -be renamed. -</div> - -<div style='display:block; margin:1em 0'> -Creating the works from print editions not protected by U.S. copyright -law means that no one owns a United States copyright in these works, -so the Foundation (and you!) can copy and distribute it in the United -States without permission and without paying copyright -royalties. Special rules, set forth in the General Terms of Use part -of this license, apply to copying and distributing Project -Gutenberg™ electronic works to protect the PROJECT GUTENBERG™ -concept and trademark. Project Gutenberg is a registered trademark, -and may not be used if you charge for an eBook, except by following -the terms of the trademark license, including paying royalties for use -of the Project Gutenberg trademark. If you do not charge anything for -copies of this eBook, complying with the trademark license is very -easy. You may use this eBook for nearly any purpose such as creation -of derivative works, reports, performances and research. Project -Gutenberg eBooks may be modified and printed and given away—you may -do practically ANYTHING in the United States with eBooks not protected -by U.S. copyright law. Redistribution is subject to the trademark -license, especially commercial redistribution. -</div> - -<div style='margin-top:1em; font-size:1.1em; text-align:center'>START: FULL LICENSE</div> -<div style='text-align:center;font-size:0.9em'>THE FULL PROJECT GUTENBERG LICENSE</div> -<div style='text-align:center;font-size:0.9em'>PLEASE READ THIS BEFORE YOU DISTRIBUTE OR USE THIS WORK</div> - -<div style='display:block; margin:1em 0'> -To protect the Project Gutenberg™ mission of promoting the free -distribution of electronic works, by using or distributing this work -(or any other work associated in any way with the phrase “Project -Gutenberg”), you agree to comply with all the terms of the Full -Project Gutenberg™ License available with this file or online at -www.gutenberg.org/license. -</div> - -<div style='display:block; font-size:1.1em; margin:1em 0; font-weight:bold'> -Section 1. General Terms of Use and Redistributing Project Gutenberg™ electronic works -</div> - -<div style='display:block; margin:1em 0'> -1.A. By reading or using any part of this Project Gutenberg™ -electronic work, you indicate that you have read, understand, agree to -and accept all the terms of this license and intellectual property -(trademark/copyright) agreement. If you do not agree to abide by all -the terms of this agreement, you must cease using and return or -destroy all copies of Project Gutenberg™ electronic works in your -possession. If you paid a fee for obtaining a copy of or access to a -Project Gutenberg™ electronic work and you do not agree to be bound -by the terms of this agreement, you may obtain a refund from the person -or entity to whom you paid the fee as set forth in paragraph 1.E.8. -</div> - -<div style='display:block; margin:1em 0'> -1.B. “Project Gutenberg” is a registered trademark. It may only be -used on or associated in any way with an electronic work by people who -agree to be bound by the terms of this agreement. There are a few -things that you can do with most Project Gutenberg™ electronic works -even without complying with the full terms of this agreement. See -paragraph 1.C below. There are a lot of things you can do with Project -Gutenberg™ electronic works if you follow the terms of this -agreement and help preserve free future access to Project Gutenberg™ -electronic works. See paragraph 1.E below. -</div> - -<div style='display:block; margin:1em 0'> -1.C. The Project Gutenberg Literary Archive Foundation (“the -Foundation” or PGLAF), owns a compilation copyright in the collection -of Project Gutenberg™ electronic works. Nearly all the individual -works in the collection are in the public domain in the United -States. If an individual work is unprotected by copyright law in the -United States and you are located in the United States, we do not -claim a right to prevent you from copying, distributing, performing, -displaying or creating derivative works based on the work as long as -all references to Project Gutenberg are removed. Of course, we hope -that you will support the Project Gutenberg™ mission of promoting -free access to electronic works by freely sharing Project Gutenberg™ -works in compliance with the terms of this agreement for keeping the -Project Gutenberg™ name associated with the work. You can easily -comply with the terms of this agreement by keeping this work in the -same format with its attached full Project Gutenberg™ License when -you share it without charge with others. -</div> - -<div style='display:block; margin:1em 0'> -1.D. The copyright laws of the place where you are located also govern -what you can do with this work. Copyright laws in most countries are -in a constant state of change. If you are outside the United States, -check the laws of your country in addition to the terms of this -agreement before downloading, copying, displaying, performing, -distributing or creating derivative works based on this work or any -other Project Gutenberg™ work. The Foundation makes no -representations concerning the copyright status of any work in any -country other than the United States. -</div> - -<div style='display:block; margin:1em 0'> -1.E. Unless you have removed all references to Project Gutenberg: -</div> - -<div style='display:block; margin:1em 0'> -1.E.1. The following sentence, with active links to, or other -immediate access to, the full Project Gutenberg™ License must appear -prominently whenever any copy of a Project Gutenberg™ work (any work -on which the phrase “Project Gutenberg” appears, or with which the -phrase “Project Gutenberg” is associated) is accessed, displayed, -performed, viewed, copied or distributed: -</div> - -<blockquote> - <div style='display:block; margin:1em 0'> - This eBook is for the use of anyone anywhere in the United States and most - other parts of the world at no cost and with almost no restrictions - whatsoever. You may copy it, give it away or re-use it under the terms - of the Project Gutenberg License included with this eBook or online - at <a href="https://www.gutenberg.org">www.gutenberg.org</a>. If you - are not located in the United States, you will have to check the laws - of the country where you are located before using this eBook. - </div> -</blockquote> - -<div style='display:block; margin:1em 0'> -1.E.2. If an individual Project Gutenberg™ electronic work is -derived from texts not protected by U.S. copyright law (does not -contain a notice indicating that it is posted with permission of the -copyright holder), the work can be copied and distributed to anyone in -the United States without paying any fees or charges. If you are -redistributing or providing access to a work with the phrase “Project -Gutenberg” associated with or appearing on the work, you must comply -either with the requirements of paragraphs 1.E.1 through 1.E.7 or -obtain permission for the use of the work and the Project Gutenberg™ -trademark as set forth in paragraphs 1.E.8 or 1.E.9. -</div> - -<div style='display:block; margin:1em 0'> -1.E.3. If an individual Project Gutenberg™ electronic work is posted -with the permission of the copyright holder, your use and distribution -must comply with both paragraphs 1.E.1 through 1.E.7 and any -additional terms imposed by the copyright holder. Additional terms -will be linked to the Project Gutenberg™ License for all works -posted with the permission of the copyright holder found at the -beginning of this work. -</div> - -<div style='display:block; margin:1em 0'> -1.E.4. Do not unlink or detach or remove the full Project Gutenberg™ -License terms from this work, or any files containing a part of this -work or any other work associated with Project Gutenberg™. -</div> - -<div style='display:block; margin:1em 0'> -1.E.5. Do not copy, display, perform, distribute or redistribute this -electronic work, or any part of this electronic work, without -prominently displaying the sentence set forth in paragraph 1.E.1 with -active links or immediate access to the full terms of the Project -Gutenberg™ License. -</div> - -<div style='display:block; margin:1em 0'> -1.E.6. You may convert to and distribute this work in any binary, -compressed, marked up, nonproprietary or proprietary form, including -any word processing or hypertext form. However, if you provide access -to or distribute copies of a Project Gutenberg™ work in a format -other than “Plain Vanilla ASCII” or other format used in the official -version posted on the official Project Gutenberg™ website -(www.gutenberg.org), you must, at no additional cost, fee or expense -to the user, provide a copy, a means of exporting a copy, or a means -of obtaining a copy upon request, of the work in its original “Plain -Vanilla ASCII” or other form. Any alternate format must include the -full Project Gutenberg™ License as specified in paragraph 1.E.1. -</div> - -<div style='display:block; margin:1em 0'> -1.E.7. Do not charge a fee for access to, viewing, displaying, -performing, copying or distributing any Project Gutenberg™ works -unless you comply with paragraph 1.E.8 or 1.E.9. -</div> - -<div style='display:block; margin:1em 0'> -1.E.8. You may charge a reasonable fee for copies of or providing -access to or distributing Project Gutenberg™ electronic works -provided that: -</div> - -<div style='margin-left:0.7em;'> - <div style='text-indent:-0.7em'> - • You pay a royalty fee of 20% of the gross profits you derive from - the use of Project Gutenberg™ works calculated using the method - you already use to calculate your applicable taxes. The fee is owed - to the owner of the Project Gutenberg™ trademark, but he has - agreed to donate royalties under this paragraph to the Project - Gutenberg Literary Archive Foundation. Royalty payments must be paid - within 60 days following each date on which you prepare (or are - legally required to prepare) your periodic tax returns. Royalty - payments should be clearly marked as such and sent to the Project - Gutenberg Literary Archive Foundation at the address specified in - Section 4, “Information about donations to the Project Gutenberg - Literary Archive Foundation.” - </div> - - <div style='text-indent:-0.7em'> - • You provide a full refund of any money paid by a user who notifies - you in writing (or by e-mail) within 30 days of receipt that s/he - does not agree to the terms of the full Project Gutenberg™ - License. You must require such a user to return or destroy all - copies of the works possessed in a physical medium and discontinue - all use of and all access to other copies of Project Gutenberg™ - works. - </div> - - <div style='text-indent:-0.7em'> - • You provide, in accordance with paragraph 1.F.3, a full refund of - any money paid for a work or a replacement copy, if a defect in the - electronic work is discovered and reported to you within 90 days of - receipt of the work. - </div> - - <div style='text-indent:-0.7em'> - • You comply with all other terms of this agreement for free - distribution of Project Gutenberg™ works. - </div> -</div> - -<div style='display:block; margin:1em 0'> -1.E.9. If you wish to charge a fee or distribute a Project -Gutenberg™ electronic work or group of works on different terms than -are set forth in this agreement, you must obtain permission in writing -from the Project Gutenberg Literary Archive Foundation, the manager of -the Project Gutenberg™ trademark. Contact the Foundation as set -forth in Section 3 below. -</div> - -<div style='display:block; margin:1em 0'> -1.F. -</div> - -<div style='display:block; margin:1em 0'> -1.F.1. Project Gutenberg volunteers and employees expend considerable -effort to identify, do copyright research on, transcribe and proofread -works not protected by U.S. copyright law in creating the Project -Gutenberg™ collection. Despite these efforts, Project Gutenberg™ -electronic works, and the medium on which they may be stored, may -contain “Defects,” such as, but not limited to, incomplete, inaccurate -or corrupt data, transcription errors, a copyright or other -intellectual property infringement, a defective or damaged disk or -other medium, a computer virus, or computer codes that damage or -cannot be read by your equipment. -</div> - -<div style='display:block; margin:1em 0'> -1.F.2. LIMITED WARRANTY, DISCLAIMER OF DAMAGES - Except for the “Right -of Replacement or Refund” described in paragraph 1.F.3, the Project -Gutenberg Literary Archive Foundation, the owner of the Project -Gutenberg™ trademark, and any other party distributing a Project -Gutenberg™ electronic work under this agreement, disclaim all -liability to you for damages, costs and expenses, including legal -fees. YOU AGREE THAT YOU HAVE NO REMEDIES FOR NEGLIGENCE, STRICT -LIABILITY, BREACH OF WARRANTY OR BREACH OF CONTRACT EXCEPT THOSE -PROVIDED IN PARAGRAPH 1.F.3. YOU AGREE THAT THE FOUNDATION, THE -TRADEMARK OWNER, AND ANY DISTRIBUTOR UNDER THIS AGREEMENT WILL NOT BE -LIABLE TO YOU FOR ACTUAL, DIRECT, INDIRECT, CONSEQUENTIAL, PUNITIVE OR -INCIDENTAL DAMAGES EVEN IF YOU GIVE NOTICE OF THE POSSIBILITY OF SUCH -DAMAGE. -</div> - -<div style='display:block; margin:1em 0'> -1.F.3. LIMITED RIGHT OF REPLACEMENT OR REFUND - If you discover a -defect in this electronic work within 90 days of receiving it, you can -receive a refund of the money (if any) you paid for it by sending a -written explanation to the person you received the work from. If you -received the work on a physical medium, you must return the medium -with your written explanation. The person or entity that provided you -with the defective work may elect to provide a replacement copy in -lieu of a refund. If you received the work electronically, the person -or entity providing it to you may choose to give you a second -opportunity to receive the work electronically in lieu of a refund. If -the second copy is also defective, you may demand a refund in writing -without further opportunities to fix the problem. -</div> - -<div style='display:block; margin:1em 0'> -1.F.4. Except for the limited right of replacement or refund set forth -in paragraph 1.F.3, this work is provided to you ‘AS-IS’, WITH NO -OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT -LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PURPOSE. -</div> - -<div style='display:block; margin:1em 0'> -1.F.5. Some states do not allow disclaimers of certain implied -warranties or the exclusion or limitation of certain types of -damages. If any disclaimer or limitation set forth in this agreement -violates the law of the state applicable to this agreement, the -agreement shall be interpreted to make the maximum disclaimer or -limitation permitted by the applicable state law. The invalidity or -unenforceability of any provision of this agreement shall not void the -remaining provisions. -</div> - -<div style='display:block; margin:1em 0'> -1.F.6. INDEMNITY - You agree to indemnify and hold the Foundation, the -trademark owner, any agent or employee of the Foundation, anyone -providing copies of Project Gutenberg™ electronic works in -accordance with this agreement, and any volunteers associated with the -production, promotion and distribution of Project Gutenberg™ -electronic works, harmless from all liability, costs and expenses, -including legal fees, that arise directly or indirectly from any of -the following which you do or cause to occur: (a) distribution of this -or any Project Gutenberg™ work, (b) alteration, modification, or -additions or deletions to any Project Gutenberg™ work, and (c) any -Defect you cause. -</div> - -<div style='display:block; font-size:1.1em; margin:1em 0; font-weight:bold'> -Section 2. Information about the Mission of Project Gutenberg™ -</div> - -<div style='display:block; margin:1em 0'> -Project Gutenberg™ is synonymous with the free distribution of -electronic works in formats readable by the widest variety of -computers including obsolete, old, middle-aged and new computers. It -exists because of the efforts of hundreds of volunteers and donations -from people in all walks of life. -</div> - -<div style='display:block; margin:1em 0'> -Volunteers and financial support to provide volunteers with the -assistance they need are critical to reaching Project Gutenberg™’s -goals and ensuring that the Project Gutenberg™ collection will -remain freely available for generations to come. In 2001, the Project -Gutenberg Literary Archive Foundation was created to provide a secure -and permanent future for Project Gutenberg™ and future -generations. To learn more about the Project Gutenberg Literary -Archive Foundation and how your efforts and donations can help, see -Sections 3 and 4 and the Foundation information page at www.gutenberg.org. -</div> - -<div style='display:block; font-size:1.1em; margin:1em 0; font-weight:bold'> -Section 3. Information about the Project Gutenberg Literary Archive Foundation -</div> - -<div style='display:block; margin:1em 0'> -The Project Gutenberg Literary Archive Foundation is a non-profit -501(c)(3) educational corporation organized under the laws of the -state of Mississippi and granted tax exempt status by the Internal -Revenue Service. The Foundation’s EIN or federal tax identification -number is 64-6221541. Contributions to the Project Gutenberg Literary -Archive Foundation are tax deductible to the full extent permitted by -U.S. federal laws and your state’s laws. -</div> - -<div style='display:block; margin:1em 0'> -The Foundation’s business office is located at 809 North 1500 West, -Salt Lake City, UT 84116, (801) 596-1887. Email contact links and up -to date contact information can be found at the Foundation’s website -and official page at www.gutenberg.org/contact -</div> - -<div style='display:block; font-size:1.1em; margin:1em 0; font-weight:bold'> -Section 4. Information about Donations to the Project Gutenberg Literary Archive Foundation -</div> - -<div style='display:block; margin:1em 0'> -Project Gutenberg™ depends upon and cannot survive without widespread -public support and donations to carry out its mission of -increasing the number of public domain and licensed works that can be -freely distributed in machine-readable form accessible by the widest -array of equipment including outdated equipment. Many small donations -($1 to $5,000) are particularly important to maintaining tax exempt -status with the IRS. -</div> - -<div style='display:block; margin:1em 0'> -The Foundation is committed to complying with the laws regulating -charities and charitable donations in all 50 states of the United -States. Compliance requirements are not uniform and it takes a -considerable effort, much paperwork and many fees to meet and keep up -with these requirements. We do not solicit donations in locations -where we have not received written confirmation of compliance. To SEND -DONATIONS or determine the status of compliance for any particular state -visit <a href="https://www.gutenberg.org/donate/">www.gutenberg.org/donate</a>. -</div> - -<div style='display:block; margin:1em 0'> -While we cannot and do not solicit contributions from states where we -have not met the solicitation requirements, we know of no prohibition -against accepting unsolicited donations from donors in such states who -approach us with offers to donate. -</div> - -<div style='display:block; margin:1em 0'> -International donations are gratefully accepted, but we cannot make -any statements concerning tax treatment of donations received from -outside the United States. U.S. laws alone swamp our small staff. -</div> - -<div style='display:block; margin:1em 0'> -Please check the Project Gutenberg web pages for current donation -methods and addresses. Donations are accepted in a number of other -ways including checks, online payments and credit card donations. To -donate, please visit: www.gutenberg.org/donate -</div> - -<div style='display:block; font-size:1.1em; margin:1em 0; font-weight:bold'> -Section 5. General Information About Project Gutenberg™ electronic works -</div> - -<div style='display:block; margin:1em 0'> -Professor Michael S. Hart was the originator of the Project -Gutenberg™ concept of a library of electronic works that could be -freely shared with anyone. For forty years, he produced and -distributed Project Gutenberg™ eBooks with only a loose network of -volunteer support. -</div> - -<div style='display:block; margin:1em 0'> -Project Gutenberg™ eBooks are often created from several printed -editions, all of which are confirmed as not protected by copyright in -the U.S. unless a copyright notice is included. Thus, we do not -necessarily keep eBooks in compliance with any particular paper -edition. -</div> - -<div style='display:block; margin:1em 0'> -Most people start at our website which has the main PG search -facility: <a href="https://www.gutenberg.org">www.gutenberg.org</a>. -</div> - -<div style='display:block; margin:1em 0'> -This website includes information about Project Gutenberg™, -including how to make donations to the Project Gutenberg Literary -Archive Foundation, how to help produce our new eBooks, and how to -subscribe to our email newsletter to hear about new eBooks. -</div> - -</div> -</body> -</html> diff --git a/old/69686-h/images/cover-orig.jpg b/old/69686-h/images/cover-orig.jpg Binary files differdeleted file mode 100644 index 1d22217..0000000 --- a/old/69686-h/images/cover-orig.jpg +++ /dev/null diff --git a/old/69686-h/images/cover.jpg b/old/69686-h/images/cover.jpg Binary files differdeleted file mode 100644 index 46648ed..0000000 --- a/old/69686-h/images/cover.jpg +++ /dev/null diff --git a/old/69686-h/images/handbook.png b/old/69686-h/images/handbook.png Binary files differdeleted file mode 100644 index c3c9f63..0000000 --- a/old/69686-h/images/handbook.png +++ /dev/null |
