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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. 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