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diff --git a/old/69686-h/69686-h.htm b/old/69686-h/69686-h.htm deleted file mode 100644 index a0f5090..0000000 --- a/old/69686-h/69686-h.htm +++ /dev/null @@ -1,3691 +0,0 @@ -<!DOCTYPE html> -<html lang="en"> -<head> - <meta charset="UTF-8"> - <title> - The Hand-Book of the Law of Legacies, - by Robert Tyas—A Project Gutenberg eBook - </title> - <link rel="icon" href="images/cover.jpg" type="image/x-cover"> - <style> - -body { - margin-left: 10%; - margin-right: 10%; -} - - h1,h2,h3 { - text-align: center; /* all headings centered */ - clear: both; -} - -p { - margin-top: .51em; - text-align: justify; - margin-bottom: .49em; -} - -h1 span.t { - display: block; - font-size: 1.5em; - font-weight: normal; - margin-top: 0.5em; - margin-bottom: 1em; - letter-spacing: 0.1em; - word-spacing: 0.1em; - line-height: 1em; -} - -hr.chap {width: 65%; margin-left: 17.5%; margin-right: 17.5%;} -@media print { hr.chap {display: none; visibility: hidden;} } - -hr.r5 {width: 5%; margin-top: 1em; margin-bottom: 1em; margin-left: 47.5%; margin-right: 47.5%;} -hr.r15 {width: 15%; margin-top: 1.5em; margin-bottom: 1.5em; margin-left: 42.5%; margin-right: 42.5%;} - -div.chapter {page-break-before: always;} -h2.nobreak {page-break-before: avoid;} - -table { - margin-left: auto; - margin-right: auto; -} -table.autotable { border-collapse: collapse; } -table.autotableborder { - border-collapse: collapse; - border: 1px solid black; - border-collapse: collapse; -} -table.autotable td, -table.autotableborder th { padding: 4px; } - -.tdl {text-align: left;} -.tdr {text-align: right;} -.tdc {text-align: center;} - -.toc2row {text-indent: 2em; padding-left: 2em;} - - .small { - font-size: 70%; - letter-spacing: 0.15em; - word-spacing: 0.15em; - } - .big { - font-size: 130%; - letter-spacing: 0.1em; - word-spacing: 0.1em; - } - .big2 { - font-size: 130%; - letter-spacing: 0.1em; - word-spacing: 0.1em; - } - .bigdoublemargin { - margin-top: 3em; - margin-bottom: 3em; - } - .bigtopmargin { - margin-top: 3em; - } - .bigtopmargin2 { - margin-top: 4em; - } - -.pagenum { /* uncomment the next line for invisible page numbers */ - /* visibility: hidden; */ - position: absolute; - left: 92%; - font-size: smaller; - text-align: right; - font-style: normal; - font-weight: normal; - font-variant: normal; - text-indent: 0; -} /* page numbers */ - -.center {text-align: center;} - -.smcap {font-variant: small-caps;} - -.gesperrt -{ - letter-spacing: 0.2em; - margin-right: -0.2em; -} - -em.gesperrt -{ - font-style: normal; -} - -/* Transcriber's notes */ -.transnote {background-color: #E6E6FA; - color: black; - font-size:smaller; - padding:0.5em; - margin-bottom:5em; - font-family:sans-serif, serif; } - - /* ]]> */ .justify { - text-align: justify; -} - .bigtd { - font-size: 200%; -} - .borderbottom { - border-bottom: 1px solid black; - border-right: 1px solid black; -} - .smalltdindent { - text-indent: -0.75em; - padding-left: 0.75em; - width: 20%; -} - .borderleft { - border-left: 1px solid black; -} - .indent2 { - text-indent: 2em; -} - .bigtdindent { - text-indent: -1.5em; - padding-left: 1.5em; -} - .borderright { - border-right: 1px solid black; -} - .doublebottomborder { - border-bottom: double; -} - .nobottommargin { - margin-bottom: 0; -} - .blackletterdiv { - width: 15em; - height: 2em; - margin: auto; -} - .small8 { - font-size: 0.8em; -} - .tdwithspecialsymbol { - position: relative; - top: -0.5em; -} - .tocdiv { - margin: auto; - width: auto; -} - .toctable { - width: auto; -} - -.figcenter {margin: 2em auto; text-align: center; - page-break-inside: avoid; max-width: 100%;} -img {max-width: 100%; width: 100%; height: auto;} -.width270 {max-width: 260px;} -.x-ebookmaker-2 .width270 {width: 50%;} - - </style> -</head> -<body> -<p style='text-align:center; font-size:1.2em; font-weight:bold'>The Project Gutenberg eBook of The hand-book of the Law of Legacies, by Anonymous</p> -<div style='display:block; margin:1em 0'> -This eBook is for the use of anyone anywhere in the United States and -most other parts of the world at no cost and with almost no restrictions -whatsoever. You may copy it, give it away or re-use it under the terms -of the Project Gutenberg License included with this eBook or online -at <a href="https://www.gutenberg.org">www.gutenberg.org</a>. If you -are not located in the United States, you will have to check the laws of the -country where you are located before using this eBook. -</div> - -<p style='display:block; margin-top:1em; margin-bottom:0; margin-left:2em; text-indent:-2em'>Title: The hand-book of the Law of Legacies</p> -<p style='display:block; margin-left:2em; text-indent:0; margin-top:0; margin-bottom:1em;'>Tyas' legal hand-books</p> -<p style='display:block; margin-top:1em; margin-bottom:0; margin-left:2em; text-indent:-2em'>Author: Anonymous</p> -<p style='display:block; text-indent:0; margin:1em 0'>Release Date: January 2, 2023 [eBook #69686]</p> -<p style='display:block; text-indent:0; margin:1em 0'>Language: English</p> - <p style='display:block; margin-top:1em; margin-bottom:0; margin-left:2em; text-indent:-2em; text-align:left'>Produced by: deaurider, Franciszek Skawiński and the Online Distributed Proofreading Team at https://www.pgdp.net (This file was produced from images generously made available by The Internet Archive)</p> -<div style='margin-top:2em; margin-bottom:4em'>*** START OF THE PROJECT GUTENBERG EBOOK THE HAND-BOOK OF THE LAW OF LEGACIES ***</div> - - -<p class="center big">TYAS’ LEGAL HAND-BOOKS.</p> - -<hr class="r15"/> - - -<div class="figcenter width270" id="handbook"> - <img src="images/handbook.png" width="4836" height="797" alt="The Hand-Book"> -</div> - -<!-- -<div class="center blackletterdiv"> -<svg id="Warstwa_1" xmlns="http://www.w3.org/2000/svg" viewBox="0 0 311.38 48"><path 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WHICH THEY ARE SUBJECT;</p> - - -<p class="center small bigtopmargin">TOGETHER WITH</p> - -<p class="center big2">THE RIGHTS OF LEGATEES,</p> - -<p class="center small">AND</p> - -<p class="center">THE CAUSES AND MANNER OF THE ADEMPTION, CUMULATION, <br/> - AND ABATEMENT OF THEIR BEQUESTS.</p> - - -<p class="center bigtopmargin2">“Jam progressu futura.”</p> - - -<p class="center bigtopmargin2">LONDON:</p> - -<p class="center big">ROBERT TYAS, 8, PATERNOSTER ROW.</p> - -<p class="center small">AND SOLD BY</p> - -<p class="center">R. HASTINGS, 13, CAREY STREET, LINCOLN’S INN.</p> - -<hr class="r5"/> - -<p class="center">MDCCCXLI. -</p> - -<hr class="chap x-ebookmaker-drop"> -<div class="chapter"> -<p class="center">LONDON:</p> - -<p class="center">CLARKE, PRINTERS, SILVER STREET,<br/> -FALCON SQUARE. -</p> -</div> -<hr class="chap x-ebookmaker-drop"> - -<div class="chapter"> -<p><span class="pagenum" id="Page_v">[Pg v]</span></p> - -<h2 class="nobreak" id="PREFACE">PREFACE.</h2> -</div> - - -<p>The utility of a little work of this kind is so -obvious, that it needs no other setting forth -than that given in the introductory observations -with which it opens. It professes only to be a -cautious guide, to make men acquainted with -their rights, and not a professional assistant to -obtain them; for it has ever been the author’s -opinion, that there would be less litigation and -distrust if there were more knowledge, and -more probity if there were more intelligence. -A difference rightly explained is half settled, -and a mind enlightened is a mind directed as -well as sustained; and if the few following<span class="pagenum" id="Page_vi">[Pg vi]</span> -pages should make any of the community -better informed as to their claims and position, -with respect to their deceased relatives, he -feels that he will have saved them, and those -with whom they have to do, not a little -trouble, and perhaps unpleasantry; and that -he has contributed to the good-will as well as -the information of his readers.</p> -<hr class="chap x-ebookmaker-drop"> - -<div class="chapter"> -<p><span class="pagenum" id="Page_vii">[Pg vii]</span></p> - -<h2 class="nobreak" id="CONTENTS">CONTENTS.</h2> -</div> - - - -<div class="tocdiv"> -<table class="autotable toctable"> -<tr> -<td class="tdl"></td> -<td class="tdr"><span class="smcap">page</span></td> -</tr> -<tr> -<td class="tdl">CHAPTER I.</td> -<td class="tdr"><a href="#CHAPTER_I">1</a></td> -</tr> -<tr> -<td class="tdl toc2row"><span class="smcap">Introduction.—Legacies and Legatees</span></td> -<td class="tdr"><a href="#Chap1Sec1">1</a></td> -</tr> -<tr> -<td class="tdl toc2row"><span class="smcap">Legacies and Legatees</span></td> -<td class="tdr"><a href="#Chap1Sec2">3</a></td> -</tr> -<tr> -<td class="tdl">CHAPTER II.</td> -<td class="tdr"><a href="#CHAPTER_II">9</a></td> -</tr> -<tr> -<td class="tdl toc2row"><span class="smcap">The Assets</span></td> -<td class="tdr"><a href="#Chap2Sec1">9</a></td> -</tr> -<tr> -<td class="tdl toc2row"><span class="smcap">Real Assets</span></td> -<td class="tdr"><a href="#Chap2Sec2">10</a></td> -</tr> -<tr> -<td class="tdl toc2row"><span class="smcap">Personal Assets</span></td> -<td class="tdr"><a href="#Chap2Sec3">15</a></td> -</tr> -<tr> -<td class="tdl toc2row"><span class="smcap">Legal Assets of Choses in Action</span></td> -<td class="tdr"><a href="#Chap2Sec4">21</a></td> -</tr> -<tr> -<td class="tdl toc2row"><span class="smcap">Equitable Assets</span></td> -<td class="tdr"><a href="#Chap2Sec5">23</a></td> -</tr> -<tr> -<td class="tdl toc2row"><span class="smcap">Contingent and Dependent Assets</span></td> -<td class="tdr"><a href="#Chap2Sec6">27</a></td> -</tr> -<tr> -<td class="tdl">CHAPTER III.</td> -<td class="tdr"><a href="#CHAPTER_III">35</a></td> -</tr> -<tr> -<td class="tdl toc2row"><span class="smcap">Marshalling of the Assets</span></td> -<td class="tdr"><a href="#Chap3Sec1">35</a></td> -</tr> -<tr> -<td class="tdl">CHAPTER IV.</td> -<td class="tdr"><a href="#CHAPTER_IV">43</a></td> -</tr> -<tr> -<td class="tdl toc2row"><span class="smcap">Legacies.—General, Specific, Lapsed, Vested, Demonstrative</span></td> -<td class="tdr"><a href="#Chap4Sec1">43</a></td> -</tr> -<tr> -<td class="tdl toc2row"><span class="smcap">General Legacies</span></td> -<td class="tdr"><a href="#Chap4Sec2">44</a></td> -</tr> -<tr> -<td class="tdl toc2row"><span class="smcap">Specific Legacies</span></td> -<td class="tdr"><a href="#Chap4Sec3">45</a></td> -</tr> -<tr> -<td class="tdl toc2row"><span class="smcap">The Vesting of Legacies</span></td> -<td class="tdr"><a href="#Chap4Sec4">52</a></td> -</tr> -<tr> -<td class="tdl toc2row"><span class="smcap">The Lapsing of Legacies</span></td> -<td class="tdr"><a href="#Chap4Sec5">54</a></td> -</tr> -<tr> -<td class="tdl toc2row"><span class="smcap">Demonstrative Legacies</span></td> -<td class="tdr"><a href="#Chap4Sec6">56</a></td> -</tr> -<tr> -<td class="tdl">CHAPTER V.</td> -<td class="tdr"><a href="#CHAPTER_V">58</a></td> -</tr> -<tr> -<td class="tdl toc2row"><span class="smcap">Assent to Legacies</span></td> -<td class="tdr"><a href="#Chap5Sec1">58</a></td> -</tr> -<tr> -<td class="tdl toc2row"><span class="smcap">Assent of the Executor</span></td> -<td class="tdr"><a href="#Chap5Sec2">58</a></td> -</tr> -<tr> -<td class="tdl toc2row"><span class="smcap">Nature of the Assent</span></td> -<td class="tdr"><a href="#Chap5Sec3">61</a></td> -</tr> -<tr> -<td class="tdl toc2row"><span class="smcap">Absolute and Conditional Assent</span></td> -<td class="tdr"><a href="#Chap5Sec4">63</a></td> -</tr> -<tr> -<td class="tdl">CHAPTER VI.</td> -<td class="tdr"><a href="#CHAPTER_VI">67</a></td> -</tr> -<tr> -<td class="tdl toc2row"><span class="smcap">Payment of Legacies</span></td> -<td class="tdr"><a href="#Chap6Sec1">67</a></td> -</tr> -<tr> -<td class="tdl toc2row"><span class="smcap">The Legatees</span></td> -<td class="tdr"><a href="#Chap6Sec2">68</a></td> -</tr> -<tr> -<td class="tdl toc2row"><span class="smcap">To whom Legacies should be paid</span></td> -<td class="tdr"><a href="#Chap6Sec3">73</a></td> -</tr> -<tr> -<td class="tdl toc2row"><span class="smcap">Duty upon Legacies</span></td> -<td class="tdr"><a href="#Chap6Sec4">80</a></td> -</tr> -<tr> -<td class="tdl toc2row"><span class="smcap">Interest on Legacies</span></td> -<td class="tdr"><a href="#Chap6Sec5">82</a></td> -</tr> -<tr> -<td class="tdl">CHAPTER VII.</td> -<td class="tdr"><a href="#CHAPTER_VII">85</a></td> -</tr> -<tr> -<td class="tdl toc2row"><span class="smcap">The Ademption, Cumulation, and Abatement of Legacies</span></td> -<td class="tdr"><a href="#Chap7Sec1">85</a></td> -</tr> -<tr> -<td class="tdl toc2row"><span class="smcap">The Ademption of Legacies</span></td> -<td class="tdr"><a href="#Chap7Sec2">86</a></td> -</tr> -<tr> -<td class="tdl toc2row"><span class="smcap">Cumulation of Legacies</span></td> -<td class="tdr"><a href="#Chap7Sec3">89</a></td> -</tr> -<tr> -<td class="tdl toc2row"><span class="smcap">Legacies in Satisfaction of Debt</span></td> -<td class="tdr"><a href="#Chap7Sec4">90</a></td> -</tr> -<tr> -<td class="tdl toc2row"><span class="smcap">Abatement and Refunding of Legacies</span></td> -<td class="tdr"><a href="#Chap7Sec5">92</a></td> -</tr> -<tr> -<td class="tdl">CHAPTER VIII.</td> -<td class="tdr"><a href="#CHAPTER_VIII">94</a></td> -</tr> -<tr> -<td class="tdl toc2row"><span class="smcap">Legacies to Executors, and Legatees’ Remedies against them</span></td> -<td class="tdr"><a href="#Chap8Sec1">94</a></td> -</tr> -<tr> -<td class="tdl toc2row"><span class="smcap">Legatees’ Remedy against the Executor</span></td> -<td class="tdr"><a href="#Chap8Sec2">96</a></td> -</tr> -<tr> -<td class="tdl toc2row"><span class="smcap">Rates of Duty payable on Legacies, Annuities &c.</span></td> -<td class="tdr"><a href="#dutytable">97</a></td> -</tr> -</table> -</div> - - <span class="pagenum" id="Page_1">[Pg 1]</span> - - -<hr class="chap x-ebookmaker-drop"> - -<div class="chapter"> -<h2 class="nobreak" id="THE"><span class="small8">THE</span><br/> -LAW OF LEGACIES. -</h2> -</div> - -<hr class="r5"/> - -<div class="chapter"> -<h2 class="nobreak" id="CHAPTER_I">CHAPTER I.</h2> -</div> - -<h3 id="Chap1Sec1">INTRODUCTION.—LEGACIES AND LEGATEES.</h3> - - -<p>When it is known that the gross sum upon -which the several rates of legacy-duty are -paid in this country amounts to more than -£40,000,000 per annum, and that, during the -last thirty years, more than £1,000,000,000 -of money have been consigned from the hands -of those who held it to those of their friends -and successors, some notion will be obtained -of the immense number of individuals who -are intimately concerned in the subject of -this little treatise. The solemn fact by which -the laws respecting legacies are brought into -operation, is of all things most calculated to -dim the perception, and to blind the judgment. -Nor is the heart less ready to mislead at such<span class="pagenum" id="Page_2">[Pg 2]</span> -times than the intellect to fail; for in the -distress arising from the loss of some dear -friend or near relative, we are apt,—at least those -are who are not callously selfish or morally debased—to -think more of the bereavement we have -sustained than of the interests and duties which -the circumstance has called into action. Consciously -unable to exercise our usual acuteness -on such occasions, we submit to the guidance of -some agent who has either been appointed by -the deceased, or approved of by ourselves, for -the distribution of his property; and we blindly -rely upon his judgment and principles, when, -perhaps, the one is not always sound, nor the -other immaculate. The use of the faculties, with -their usual business shrewdness, which duty -and interest alike requires us to exhibit, too -often looks like a cold-hearted forgetfulness of -the kindness we have experienced, and the affection -which we have enjoyed in the sense of -newly acquired property, an advantage, which, -to the man of right feeling, is, at that time of -all others, the least desirable or valued. Or -it may be that excessive grief so blunts the -powers, that they are indeed incompetent to -their usual task; and those whose interest it is -our bounden duty to protect, even if we disregarded<span class="pagenum" id="Page_3">[Pg 3]</span> -our own, may be injured through an incapacity -to recollect what we know, or to make -that useful which we recollect. In supplying the -omissions of memory, or the want of right -knowledge, we hope this little book will prove a -useful as well as a sound and opportune guide.</p> - - -<h3 id="Chap1Sec2">LEGACIES AND LEGATEES.</h3> - -<p>A legacy is the gift of something by the written -will of one who is deceased, conveyed through -the instrumentality of the individual appointed -by the testator to distribute his property after -death.</p> - -<p>To reception of property by this means the -law of the land offers some exceptions. Among -these are traitors, who, through their crime, -have lost every civil right; and by a statute of -Charles I., and another of George I., persons -omitting to take the oaths required, and otherwise -qualify themselves for offices, are placed -under the same disability. Those who deny -the Trinity, or assert a plurality of Gods, or -deny the truth of the Christian religion, or -the Divine authority of the Scriptures, are by -the 9 and 10 William III., c. 32, made incapable -of receiving a legacy. Artizans, also, -who go out of the realm to teach or follow their<span class="pagenum" id="Page_4">[Pg 4]</span> -trades abroad, and who shall not return within -six months after due notice given to them, are -by the 5 Geo. III., c. 27, made subject to the -same disqualification; and by the 25 Geo. II., -c. 6, all legacies given by will or codicil to -those who witness such will or codicil, are declared -void; and the sentence is confirmed by -the 1 Vic., c. 26, s. 15, whether the legacy be -of real or personal estate. Legacies to priests -and chapels to perform masses for the repose of -the souls of the deceased, are void, as being -appropriated to superstitious uses, and therefore -forbidden as well by Edward VI., c. 14, as, -from being against the constitutional intention -of the law; but the professors of the Roman -Catholic religion having by the 2 and 3 William -IV., being placed on the same footing as other -dissenters, in respect to their schools, places for -religious worship, education, and charitable purposes, -legacies to Roman Catholic schools, and -for the object of promoting the Roman Catholic -religion, are held heritable.</p> - -<p>The legacy of a husband to his wife is valid; -although, in consequence of the law considering -them as one person during life, he cannot make -any covenant with her. Yet the existence of such -a relation does not abrogate his power to endow<span class="pagenum" id="Page_5">[Pg 5]</span> -her by bequest, because the bequest cannot take -place till after his death, by which circumstance -the relationship is determined. Care, however, -must be taken to express the individual properly, -and by name; as the intimation that a legacy -of a husband to his wife, without mentioning -her name, will only apply to the wife he has at -the time of making the will; and in the event of -her death, and his subsequent marriage with another -person, that wife will not enjoy the advantage -of the intention, but the legacy will lapse.</p> - -<p>An infant, if alive, though yet unborn, may -be a legatee; for it was decided in the case of -<i>Defflis</i> v. <i>Goldschmidt</i>, that a bequest of £2000 -to each of the children of the testator’s sister, -which were either then born, or should thereafter -be born, included all the children born after his -death; and an inquiry was directed as to the -proper sum to be set apart for the legacies of -children not at the time in existence. It was -also further decided in the case of <i>Trower</i> v. -<i>Butts</i>, that a bequest to the children of the -nephew of the testatrix, which should be born -during her life time, should include the child of -which the wife of the nephew was pregnant at -time of her death, although the child was not -absolutely born until some months afterwards.</p> - -<p><span class="pagenum" id="Page_6">[Pg 6]</span></p> - -<p>A mistake in the Christian name of a legatee -will not invalidate a bequest, when the individual -who is intended can be ascertained; as -where an individual left a legacy to the son of -another, although he gave a wrong name, yet -no doubt of the identity of the party intended -existed. In another instance, also, where a -certain amount was left to “each of the three -children” of an individual, and it turned out -that there were four children instead of three, -the court allowed the fourth to come in also as -a legatee of equal amount with the other three, -under the impression that the word <i>three</i> was -written in mistake, instead of <i>four</i>. The bequest -of an unmarried man to “his children,” -took effect, with respect to his illegitimate children, -as the children had by common repute been -considered as his offspring. Such, however, -would not have been the case had any doubt as -to the parties existed; for in the case, <i>Earl</i> v. -<i>Wilson</i>, it was determined that the words “to -such child or children, if more than one, as A. -may happen to be <i>enciente</i> of by me,” would -not apply to a natural child, of which she was at -that time pregnant. There is, however, but little -doubt, that had the testator acknowledged the -child which she then carried, to be his before<span class="pagenum" id="Page_7">[Pg 7]</span> -witnesses, it would have enjoyed the bequest. -Where children are stated, legitimate children -are supposed to be intended; unless it is impossible, -through the celibacy of the testator, that -he could have any legitimate children. But -in the case of a female, where she had children -of both kinds, and the bequest was stated to be -to the children of R. M., deceased, and she left -two, one legitimate, and the other otherwise, -but reputed and allowed to be her child, and -known to be so by the testator, the illegitimate -child took its legacy with the other.</p> - -<p>Great-grandchildren may inherit as grandchildren, -unless a decidedly contrary intention -appear in the will; and in several cases it has -been decided, that the term <i>relations</i>, or <i>family</i>, -in a will, means next of kin. A pecuniary -legacy to the heir of a testator is construed to -imply the heir-at-law, and not the next of kin, -unless the sense of the passage in the will was influenced -by the context to mean something else. -The words, <i>personal representatives</i>, mean executors -and administrators, unless some accompanying -expression point out a different tendency. -<i>Next of kin</i> was decided to be construed in its -legal import for some time, but the decision was -overruled, and now it means <i>nearest of kin</i>; and a<span class="pagenum" id="Page_8">[Pg 8]</span> -bequest by a party in India, “to his nearest -surviving relations in his native country of Ireland,” -was held to apply to brothers and sisters -living in Ireland or elsewhere. The bequest of -a year’s wages to each of the testator’s servants, -over and above what was due to them at his -decease, was construed, in <i>Booth</i> v. <i>Dean</i>, to -apply only to those servants who were hired by -the year, and not to all the servants who might -be generally employed about his establishment.</p> - -<p>With the exception of those constitutionally -and legally distinguished as above, and of those -whose rights are invalidated by any moral slain, -or obscurity in the language of the testator, all -persons who can prove their identity with the -party specified in a testators’s will, may be -legatees.</p> -<hr class="chap x-ebookmaker-drop"> - -<div class="chapter"> -<p><span class="pagenum" id="Page_9">[Pg 9]</span></p> - -<h2 class="nobreak" id="CHAPTER_II">CHAPTER II.</h2> -</div> - -<h3 id="Chap2Sec1">THE ASSETS.</h3> - - -<p>As it is of very little use for a man to find -himself legatee of an estate, out of which there -is nothing to pay his bequest, so also is it an -equal evil if notwithstanding the existence of -property to constitute an estate the assets, or -the produce of that property be either uncollected -or wasted, so that the legatees derive no -benefit from them. One of the first things, -therefore to be considered, is, whether there be -any assets; and next, whether the executor has -collected them for distribution. From the various -nature of property arising out of the -complex state of society, and the different periods -and the different circumstances at which, and -out of which that state of society and its -customs arose, the legislators of the country in -their care to secure the safe possession and the -right appropriation of property, have endowed it -with peculiar privileges, and made it subject -to certain contingences according to its kind. -Hence it is that the heir-at-law takes the whole -of a property in fee tail, or entailed freehold, as it -is called in popular language, to the exclusion<span class="pagenum" id="Page_10">[Pg 10]</span> -of every one else; hence it is on the other hand, -that by the custom of <i>gavel kind</i> which prevails -in the county of Kent, all the children of a proprietor -are considered as heirs-at-law and inherit -in equal proportions; hence it is that copyholds -are subject to different rules to freeholds; -and hence it is, also, that the several portions of -a man’s property, after his death, are often liable -to different contingencies, and have obtained the -different denominations of assets. These have -been usually distinguished by the several terms -of <i>real, personal legal, and equitable</i>, assets. -They may be more broadly divided into assets, -derived from real property, and those arising -from personalty; the real and equitable being -chiefly dependant on the former, and the legal, -and personal from the latter of these two -species of property.</p> - - -<h3 id="Chap2Sec2">REAL ASSETS.</h3> - -<p>Though real assets more often partake of an -equitable character, that is, are subject to distribution -according to the custom of a court of -equity, yet, there are also real assets which are of -a legal nature or subject to the rules of the common -law. Until within a few years, real estate -could not be touched for the satisfaction of debts<span class="pagenum" id="Page_11">[Pg 11]</span> -of common specialty or simple contract; but -that system is now obviated, and funds which -have descended to the heir in <i>fee simple</i>, that is -unentailed freeholds, and even an advowson so -descended, may be appropriated to the benefit of -specialty creditors. An estate <i>pur autre vie</i>, or -an estate held upon the life of another, when -there is no special occupant, goes, according to the -statute of frauds, and if does not it descend to the -heir through occupancy, will fall to the executor -and be assets in his hands for the satisfaction of -claims, and by the 14 Geo. II., c. 20 will be -appropriated like any other chattel interest. An -estate <i>pur autre vie</i> in incorporeal hereditaments—as -a rent, for instance, granted by one -person to another, during the life of a third -party, and the grantor of which dies during the -life-time of the person who holds the property—goes -to the executor.</p> - -<p>“A., tenant for three lives to him and his heirs, -assigned over his whole estate in the premises -by lease and release to B., and his heirs, reserving -rent to A., his executors, administrators, -and assigns, with a proviso that on non-payment, -A., and his heirs might re-enter, and B. covenanted -to pay the rent to A., his executors and -administrators; the rent was held payable to A.’s<span class="pagenum" id="Page_12">[Pg 12]</span> -executors and not to his heir, on the ground -that there was no reversion to the assignor, and -the rent was expressly reserved to the executor.” -So that in the case of the heir having entered, -he would have been only trustee for the executor.</p> - -<p>If a testator be a lessee, his executor will take -the fish, rabbits, deer, and pigeons, as accessory -chattels partaking of the nature of their principals, -the land, the warren, the park, and the -dove house. If an executor succeeds to a lease -of land for years, the assets are comprised in the -clear profits; but a reversion of a term forms -assets, according to its utmost value. And if he -renew the lease, that will form assets as well as -the old lease. Should an executor be possessed -of a term in right of his office, and he purchase -the reversion of the freehold, he is accountable -for the assets of the term, although it be extinguished; -and so also if the executor of the lessee, -surrender the lease, it shall be considered as -assets, notwithstanding the term is extinguished. -A person held a term in right of his wife -as executrix, and he purchased the reversion; -the term was extinct so far as she was concerned, -but it was considered with respect to a stranger, -that is, any other person, as assets in her<span class="pagenum" id="Page_13">[Pg 13]</span> -hands. But where an individual, on the marriage -of his son, settled a lease for years, on him -for life, and on his wife, and then on the issue -of the marriage; and the son covenanted to -renew the lease, and to assign it on the same -trust; and he renewed the lease in his own name, -but made no assignment to the trustees and -died; the lease was held to be bound by the -agreement on the marriage, and that it was not -assets, nor liable to his debts, nor of course to his -legacies. Neither is a lease for years granted -on condition of being void on non payment of -rent, which occurs, and the lessee afterwards dies. -As little so is a term in the hands of the executor -of a <i>cestui que trust</i>.</p> - -<p>A term for years held by a testator, cannot -be relinquished by his executor, when he has -assets, unless he relinquishes the office altogether; -but he is bound to continue tenant as -long as the term continues, or as long as his -funds hold out, if they will not continue the -whole term.</p> - -<p>A leasehold in Ireland is considered as personalty -in the property of an English testator -dying in England. A lease granted to A. and -his executors, and accordingly to the executors -after the death of A., becomes assets. If a<span class="pagenum" id="Page_14">[Pg 14]</span> -lessor also, covenant to renew a lease at request -of the lessee, who, however, dies within the -term without making the request, but it is made -by his executors, the lessor is bound to renew -for the legal rights of the deceased survivor to -his representatives, whom the law presumes to -be another self, and therefore implied although -not named.</p> - -<p>The grant of the next presentation to an -advowson during the life of the grantee does not -convey the presentation to his executors if he -die before the church becomes vacant, for it -is equal to a lapsed legacy.</p> - -<p>If rent be reserved on a lease for years, and -the rent be in arrear at the time of the lessor’s -death, it is assets in the hands of the executor. -Trees felled during his life on land held by a -lessee, without impeachment of waste, are assets -to his executor after his death; but unless they -are severed during the term, they belong to the -lessor as owner of the freehold.</p> - -<p>The executor does not come into any corporeal -hereditaments, as leases for years of -houses or lands, until he is in actual possession, -and they cannot therefore until then be esteemed -as assets: the dispossession of incorporeal -hereditaments, such as leases of tithes,<span class="pagenum" id="Page_15">[Pg 15]</span> -is constructive, and ensues immediately on -taking office; for it is evident that in these -there can be no personal entry, and as soon -therefore as tithes are set out, however remote -the goods may be, he is in legal possession of -them; but if the lease be of a rectory, where -there are glebe lands as well as tithes, it would -seem that he is not in possession of the tithes -till he enter upon the lands, which being a corporeal -hereditament, gives an opportunity of -actual entry.</p> - - -<h3 id="Chap2Sec3">PERSONAL ASSETS.</h3> - -<p>Personal assets are either moveables not attached -to the land or their produce, and derive -their appellation from being either attached to -the person of the owner, or from being capable -of being moved about with him. They are -either animate as living creatures, or inanimate, -as vegetables, and include all the vast variety of -property which necessity or luxury has called -into existence. Properly speaking they are not -assets until converted into money for the payment -of debts or legacies, though they may -certainly constitute the subject of specific legacies. -As however they either form subjects of -bequest, as they are, or the means by which it<span class="pagenum" id="Page_16">[Pg 16]</span> -is to be produced, we will follow the arrangement -into which they naturally fall.</p> - -<p>Animate <i>chattels</i>, as before they are converted -into assets they are properly called, are -divided into <i>domitæ</i> and <i>feræ naturæ</i>, or such -as are tame or reclaimed, and such as are -wild; the former admitting of an absolute, -the latter of only a qualified ownership—the -former embracing all kinds of farming -stock and poultry, the latter all those which, -unsubdued to confinement, still enjoy their -natural liberty, and therefore cannot pass to -representatives. Such also are fish in any -natural stream or reservoir of water; but fish in -a tank, as well as creatures in confinement, are -capable of sale, and therefore of transfer: and -this is the case also with all the young, the -weak, or the lame, of all those wild creatures -which, either from feebleness or any other -cause, cannot assume their natural liberty. -Under this specification come also all hounds, -greyhounds, and spaniels, and all the accessaries -of falconry or the chase, as well as every thing -kept either for curiosity or from whim. An -executor is also entitled to appropriate as assets -deer in a park, hares or rabbits in an enclosed -warren, doves in a dovecot, pheasants or partridges -in a mew, fish in a private pond, and<span class="pagenum" id="Page_17">[Pg 17]</span> -bees in a hive of the testator, where lessee for -years of the premises to which they respectively -belong, so long as they continue in a state -of subjugation, and no longer; for as soon as -they obtain their natural freedom, they pass -into the class of <i>feræ naturæ</i>, and are beyond -the reach of his domain.</p> - -<p>Vegetable chattels which may be appropriated -as assets are the fruit of a tree or plant when -separated from the body of the thing that bears -it; or the tree or plant itself when severed from -the ground, as grass that is cut, and trees which -are felled, or branches which are lopped. Of the -same character also are all those vegetable productions -which are produced by the exertion and -skill of the owner or occupier, and which are -technically called emblements; extending to roots -planted or other artificial profit, and including -corn, growing crops, hops, saffron, hemp, flax, -clover, saintfoin, and, in short, every other -yearly production in which art and industry -combine with nature. The executor has also -been held entitled to hops though growing on -ancient roots, as cultivation was necessary to -produce them. Manure, in a heap, also, before -it is spread on the land, is personalty; but -afterwards it becomes attached to the soil, and<span class="pagenum" id="Page_18">[Pg 18]</span> -is consequently indirectly the property of the -owner of the soil.</p> - -<p>The inanimate chattels, which constitute -personalty, are furniture, merchandize, money, -(including stock in the funds, shares in public -companies, and property of similar kind) pictures, -clothing and jewels, and, in fact, every thing -that can be moved from place to place. The -presentation to a living, if the living be occupied -at the time of the testator’s death, is, as -has been stated, property of a real nature, and -of course goes to the heir; but if it be open -or unoccupied, it forms a personal chattel, and -becomes assets in the hands of the executor. -Copyrights and patents are also considered as -personal chattels.</p> - -<p>All these things become assets in the hands of -the executor, in whatever part of the world they -may be, at the moment of the testator’s death. -But in order to their becoming so, it is necessary -that the testator must have professed an -absolute property in them; and therefore it is, -that, if he, having been the obligee of a bond, -has assigned that bond with a covenant not to -revoke, it does not become part of his assets. -Nor are goods bailed, as it is called, or delivered -for a particular purpose to a carrier, or to an<span class="pagenum" id="Page_19">[Pg 19]</span> -innkeeper, to secure in his inn; nor goods -pledged, until the time of redemption shall have -passed. Neither are the goods of an outlaw -assets at the time of his death, for his executor -has no right to touch them.</p> - -<p>Chattels, however, whether real or personal, -may be held in joint tenancy as well as in common; -so if a lease be granted, or a house be -given to more than one person absolutely, they -are joint tenants of it, and unless the jointure be -severed, it shall be the exclusive property of the -survivor. But if the jointure of interest be -severed by one of the parties disposing of his -share to another, that other person becomes, -with the previous owner or owners, a <i>tenant in -common</i>, instead of a <i>joint tenant</i>; and the -principal of survivorship does not hold, but the -chattel, or the portion of it which belonged to -the testator, whatever it may be, falls to the -executor, and becomes assets. Thus, money -left to two parties to be divided between them, -occasions a tenancy in common, because it can -be divided without injury to either; but not so -with a horse or a house, for that could not be -severed without destruction to it, and a consequent -defeat of the testator’s will. But on the -argument of convenience and justice, and for<span class="pagenum" id="Page_20">[Pg 20]</span> -sake of encouraging husbandry and commerce, -the goods of a warehouse or a shop, or the stock -of a farm, although occupied jointly, will, in -the absence of any express contract to the contrary, -be considered as property in common; -and on the death of any part owner of such property, -his share would fall to his executors, to -meet the claims of legatees, according to the -will. So also, on that principle of personalty -which the law invariably recognises, and that -distinction which it invariably observes between -the rights and actions of individuals, and the -attachment and nature of property, the executor -of a testator who has been joined in any -action for the recovery of property, cannot take -his place in the action and carry it on, however -indolent or negligent the survivor in the action -may be in endeavouring to bring it to a fortunate -conclusion; but he has a right of action -against him for the injury sustained by the -property through his negligence, and also to -oblige him to account when the action has terminated. -In such a matter a court of equity -will in general interfere.</p> - -<p>Occasionally it happens that chattels real are -changed into chattels personal, and thus become -available for the payment of legacies; and chattels<span class="pagenum" id="Page_21">[Pg 21]</span> -personal are sometimes changed into chattels -real; and thus the legatees are deprived of the -amount for the liquidation of their claims. The -former instance occurs when a debt has become -due to an executor by statute, recognisance, or -judgment, and he has in consequence taken the -<i>lands</i> of the debtor in execution; for here the -original property in the debt, which was money, -and consequently personalty, has been converted -into realty, to which the heirs’ claim supersedes -that of the legatees. Chattels real, on the other -hand, are converted into personalty by the redemption -of a mortgaged estate. Had the -mortgage which the testator held become foreclosed -through the negligence or inability of the -mortgagor, the property would have continued -<i>real</i> as it was at the time of his death, but by -the payment of the debt, the estate again becomes -money, and consequently a personal -asset to meet the legacies, or any other claims -upon the testator’s estate.</p> - - -<h3 id="Chap2Sec4">LEGAL ASSETS OF CHOSES IN ACTION.</h3> - -<p>It is neither an improbable nor unfrequent -occurrence, that, at the time of a testator’s -death, much of his property is outstanding, -which, if got in, would satisfy all the claims of<span class="pagenum" id="Page_22">[Pg 22]</span> -the legatees, while, if it were neglected, they -would lose half their bequests; and it is therefore -necessary to consider the executor’s interest -in what are called <i>choses in action</i>, as well those -where the right of action accrued during the -life time of the testator, as after his death.</p> - -<p>Firstly, then, the executor is entitled to every -debt that was due to the testator, whether they -be debts due on judgment, statute, record, -recognizance, or bond, or on special or -simple contracts, rents, or covenants, under -seal or promise, all of which constitute assets -for the purposes of the will. He is also entitled, -by the 4 Ed. III., c. 7, to damages for -trespass committed during the testator’s life -time, or for the conversion of the same, or for -trespass with cattle in his close, or for cutting -and carrying away his growing corn, or for a -debt incurred by the not setting out of tithes, -to an action of prevention against the disturbance -of his patronage; as, when a living has -been void at the death of the testator, and another -has presumed to appropriate this chattel, -then become personal, to his own use, by presenting -to the living, or to an action of ejectment -against him whom he has presented. An -executor is also entitled to damages for breach<span class="pagenum" id="Page_23">[Pg 23]</span> -of a covenant to do a personal thing, provided -the breach occurred in the testator’s life time; -and this, notwithstanding the covenant has -reference to realty, as felling, stubbing up, lopping -or topping timber trees; for the damages -are of the nature of personalty, though that on -account of which they were recovered is real. -Equally, also, and on the same grounds, can -he sue for the loss of interest occasioned by -non-payments on deposit-money, for the expense -of investigating a title, where the vendor -omits to make out a good title within the stipulated -time, and the vendee dies. The executor -of an assignee may also recover on a bail bond. -In fact, in all those rights which accrued to the -vendee before his death, and the proceeds of -which are all of a personal nature, does the executor -equally enter; and he is bound to the legatees -to recover, if possible, whenever policy -or necessity dictate the attempt.</p> - - -<h3 id="Chap2Sec5">EQUITABLE ASSETS.</h3> - -<p>According to the usual legal phraseology, -the difference between legal and equitable assets -is this; “legal assets are such as constitute the -fund for the payment of debts, according to -their legal priority; whereas, equitable assets<span class="pagenum" id="Page_24">[Pg 24]</span> -are those which can be reached only by the aid -of a court of equity, and are subject to distribution -on equitable principles, according to -which, as equity favours equality, they are to be -divided <i>pari passu</i> among all the creditors.” -This is a very important distinction, and of -great consideration in the payment of debts, -and it has accordingly been fully set out in the -Hand-Book for the instruction of Executors and -Administrators. There the difference is as to -the <i>distribution</i> of equitable assets, but here we -have to regard their attainment. The difference -between the different species of legacies will be -shown hereafter, but in this place we may look -upon them in one light, and consider that there -is both sufficient to pay the debts and satisfy the -legacies, if the assets are all got in, and properly -distributed. With respect to the debts, the -legal assets are applicable in a certain order, -while the equitable assets are equally shared -among the creditors. But with respect to the -legacies, saving the instance first alluded to, of -specific legacies which are to be noticed hereafter, -the assets, whether legal or equitable, are -all distributed equally, that is, in full, if sufficient -to satisfy in full, or in proportionate equality, -according to the amounts of the legacies,<span class="pagenum" id="Page_25">[Pg 25]</span> -and the means to pay them. Our business, -therefore, here is to show what the executor is -entitled to, and what he ought to obtain in order -that the legatees may not suffer from his negligence.</p> - -<p>The executor enters, then, fully into the -equitable title of the testator, in respect of personal -property, and this whether it accrues before -or after his death. Thus, if an individual -shall have contracted to deliver certain goods to -the testator on a certain day, and the day does -not arrive till after his death, and they are delivered -to his executor, they will constitute assets -in his hands, and should the individual who -has covenanted to deliver them fail in his duty, -the damages that shall be recovered in consequence -will be equally available to the creditors -or legatees. So, also, if any party has covenanted -to grant a lease of certain land by a -particular day, and the testator dies before the -day, the executor is entitled to the lease, or to -compensation in the way of damages in lieu of -the lease. To such an extent, indeed, does this -run, that in the case of <i>Husband</i> v. <i>Pollard</i>, -where a father held a lease of the church, renewable -every seven years, and he assigned it -to his son in trust for himself for life, remainder<span class="pagenum" id="Page_26">[Pg 26]</span> -in trust for the son, himself, his executors, administrators, -and assigns, and the father covenanted -to renew the lease every seven years as -long as he should live; and the son died; and -the father failed to renew the lease within the -seven years; and the executor of the son filed -a bill to compel him to renew; it was decided -that he ought to do so, and he was compelled -accordingly; and this lease became assets in the -hands of the executors at the father’s death.</p> - -<p>If a defendant in execution at the testator’s -suit escape after the testator’s death, the executor -shall recover damages for the escape, they will -form assets; so also are goods replevied after the -death of a testator. If a testator die possessed -of a term for years in an advowson, the term -rests in the executors, and, in the event of their -being disturbed, any damages they may recover -in consequence will be equally available, as also -any other property recovered by a suit in equity. -But when a cause of action accrued before the -testator’s death, neither cause nor damages are -to be considered assets until the proceeds are, -by execution or otherwise, reduced into possession. -Neither is the balance of an account stated -with the executor to be so considered until paid. -If, however, they be recovered and released by<span class="pagenum" id="Page_27">[Pg 27]</span> -the executor, he will still be responsible for them, -for the release is tantamount to an acknowledgment -of receipt.</p> - -<p>Should the cause of action accrue after the -testator’s death, both the action and the damages -become assets immediately, unless the breach of -engagement affect the realty, in which case they -belong to the heir. At the death of a joint -merchant, all his interest in his <i>choses in action</i>, -or things coming, though not yet come, to -hand, through legal or equitable suit, and -whether, therefore, they be legal or equitable -assets, devolve, according to the amount of the -testator’s interest in them, to the executor.</p> - - -<h3 id="Chap2Sec6">CONTINGENT AND DEPENDENT ASSETS.</h3> - -<p>Besides all these means by which property -may be realised by an executor to pay the claims -of the legatees, there are yet other more remote -and uncertain sources from which he may in the -course of time come into the possession of assets, -which may enhance their interests. These consist -in the peculiar conditions annexed to certain -properties; properties again which may come to -the testator’s estate in consequence of his being -entitled to them as remainder man or contingent -devisee, as his outliving some other individual,<span class="pagenum" id="Page_28">[Pg 28]</span> -or happening to fulfil an engagement which that -other has failed to perform. Or he may have -been unconsciously entitled, as residuary legatee, -to property, the surplusage of which has not -been discovered, or recovered till after his death. -Or property may have come to him through -increase of some fund, or by assignment under -some deed or covenant, or by limitation and -selection.</p> - -<p>An executor may become entitled to property -in his official capacity by condition, as if the -testator shall have granted a lease, or other chattel, -to a certain person, on condition of his paying -a sum of money, or doing some specific act, -and it is discovered after the death of the testator -that that person has failed in his part of the -agreement, the chattels will then be assets in the -hands of the executor. Or where the agreement -is that the testator or his executors shall pay a -certain sum, to avoid the grant, and the sum is -paid. Or the testator may have pledged plate or -a jewel, and the executor redeem it at the time -and place appointed, before the day of redemption -has passed. If he has redeemed with his -own money, and, in consequence of the want of -funds of the testator’s property, the chattel is -obliged to be sold to pay the executor’s disbursements,<span class="pagenum" id="Page_29">[Pg 29]</span> -and if it sell to more than they amount to, -then the surplus above that amount will be assets -in his hands, for the benefit of the creditors and -legatees, or both.</p> - -<p>Chattels may also accrue to an executor by remainder -or increase, which never came into the -testator’s personal possession, as if a lease be -granted to a person for life, with remainder to -his executors for a certain period, the remainder -will be assets in their hands. Likewise where a -lease is bequeathed by will to a person for life, -and on his death to another, and that other -dies before the first, although he never had any -personal right in it, yet it will devolve to his -executors, and be assets. So, also, a remainder -in a term for years, though it never rested in the -testator’s possession, and, though it continue a -remainder, shall go to the executor and be converted -for what it will obtain. Such, also, -is the case with the young of cattle or -the wool of sheep, produced after the testator’s -death, as also the profits on lands devised over -and above the rent, if he enter upon them, and -the testator has been a lessee for years. Such, -also, is the property in a trade in which the -deceased has been a partner, and in the articles -of partnership of which a covenant has been<span class="pagenum" id="Page_30">[Pg 30]</span> -made, that his survivors should take his share. -Or a testator may direct his executors to carry -on his trade, appointing either the whole or a -portion of his assets for its conduct, and then -the proceeds will form assets.</p> - -<p>An executor may also come into the possession -of assets as a representative assignee, for if -the testator shall have died an assignee, his -executor will take his place, and use the assets -which he derives, belonging to the testator, for -the purposes of his will. So if a legacy is bequeathed -to a person and his assigns, and that -person die before its receipt, his executors will -be entitled to take it as his natural assignee. -Such is the case also if a person be bound to -abide by the award of two arbitrators, and they -award that he shall pay to another person, or his -assigns, a certain sum of money before a day -mentioned for that purpose, and that other -person die before the day, his executor or assignee -is entitled to the money. This principle -however does not hold where any specific assignee -is appointed, for then that assignee, and -not the executor of the party named, will take; -but where no specific assignee is named, the -executor becomes the assignee.</p> - -<p>Limitation also often becomes a source whence<span class="pagenum" id="Page_31">[Pg 31]</span> -an executor derives assets. Thus in the case of -<i>Pinbury</i> v. <i>Elkin</i>, where a testator directed that -in case his wife should die without issue by him, -his brother after her decease, should have eighty -pounds; and, after testator’s death, the brother -died in the life time of the widow, and she -afterwards died without leaving issue, it was held -that the possibility devolved to the executors of -the brother, although he died before the contingency -happened, and the legacy went accordingly -with interest from the widow’s death. It was -also held in the case of <i>Chamey</i> v. <i>Graydon</i>, -that where legacies were bequeathed to children, -to be transferred to them at their respective ages -of twenty-one years, or days of marriage, and -that any of them should die, or marry without -consent, his or her share should go to others -at their age of twenty-one years, Lord Chancellor -Hardwick decreed that a share accruing by -the forfeiture of a child’s marrying without consent -vested in another child who attained twenty-one, -but died before such forfeiture, so as to -entitle the personal representatives of such -deceased child to an equal share with other -deceased children.</p> - -<p>Where a person who has a legacy bequeathed -to him out of a personal estate, and which legacy<span class="pagenum" id="Page_32">[Pg 32]</span> -is to be paid when he is of the age of twenty-one -years, and he dies before that time, his executors -are entitled to the legacy at the moment of -his death, if it is intended to carry interest, but -if it is not to carry interest, then on the day on -which he would have been twenty-one. But if -the legacy is to be paid to the person to whom -it is bequeathed at his age of twenty-one, or if -he shall attain the age of twenty-one, and he die -before that time the legacy will lapse. But if the -interest is given before the time of payment, that -is held to <i>vest</i> the legacy; and his executors would -consequently be entitled to the amount as assets.</p> - -<p>With respect to the interest arising out of -land, however, the rules are totally different; for -whatever the nature of the legacies to which the -land is to be appropriated, whether for a child -or a stranger, and with, or without interest, the -charges on land, payable on a future day, are -not to be raised where the party dies, before the -day of payment, except where the time of payment -is postponed on account of the fund and -not of the person. In the case of <i>Watkins</i> v. -<i>Cheek</i>, where a legacy was charged upon real -estate, to vest immediately on the testator’s death; -and to be paid to the legatee on attaining twenty-one, -the interest being applied in the mean<span class="pagenum" id="Page_33">[Pg 33]</span> -time for maintenance, and the legatee died -before attaining that age; it was held that the -express direction, that the legacy should vest on -the death of the testator prevented its sinking; -and the representative of the legatee was consequently -entitled to the legacy. Where lands are -devised for the payment of portions, and any of -the children entitled die before the lands are -sold, the representatives of that child will be entitled -to the money. In the case where a legacy -is charged both upon the real and personal -estate, and the executor claims out of the latter, -he will succeed according to the rule of the spiritual -court, where the claim is determinable, -though the infant legatee should die before the -time of payment, but the legacy will sink as far -as it is charged upon the land.</p> - -<p>Election is also a means by which an executor -may claim, as in the instance where a testator -was entitled to take his choice out of several -chattels, and he has failed to choose; but if nothing -passes to the grantee before his election, -it should be made in his life time. Should the -election determine the manner or degree in -which the thing shall be taken, the executor -may take it as well as the grantee, for then -there is an immediate interest; as, for instance,<span class="pagenum" id="Page_34">[Pg 34]</span> -if a lease be granted to a person for ten or -twenty years, as he shall choose, the executor -may elect.</p> - -<p>We have thus at some little length endeavoured -to make it as clear as possible what are the -sources from whence the assets of a testator are -to be derived. We will now proceed to see how -they are to be disposed of when obtained, and -ascertain what is technically called, the “Marshalling -of the assets.”</p> -<hr class="chap x-ebookmaker-drop"> - -<div class="chapter"> -<p><span class="pagenum" id="Page_35">[Pg 35]</span></p> - -<h2 class="nobreak" id="CHAPTER_III">CHAPTER III.</h2> -</div> - -<h3 id="Chap3Sec1">MARSHALLING OF THE ASSETS.</h3> - - -<p>It was enacted by the 47 Geo. III., c. 74, that -the property of any trader who died possessed -of, or entitled to, any real estate or interest in -real property which would be assets for the -payment of any debts due on specialty, in which -the heir was bound, should be equally applicable -through the administration of a court of -equity, for <i>all</i> the just debts of such trader, -whether debts due on simple contract, or otherwise; -thus remedying one of the most unjust -mischiefs which ever disgraced the jurisprudence -of any country. For, before, a man would -die possessed of immense landed estates, and -owe immense sums as debts upon simple contract, -one hundreth part of which, perhaps, would -scarcely be liquidated before the day of doom, in -consequence of his leaving but a small personal -property to pay them, while his real property -could not be touched for the purpose.</p> - -<p>That statute, however, only applied to those -persons who were traders at the time of their -decease, and not to those who left off business<span class="pagenum" id="Page_36">[Pg 36]</span> -before they died; and it was repealed by 1 Will. -IV., c. 47, but re-enacted by the same act, in -order to remedy the frauds for which no previous -provision had been made. By this act it was -decreed, that “all wills and testamentary limitations, -dispositions or appointments of real -estates, whereof any person shall be seized in -fee simple, in possession, reversion or remainder, -or have power to dispose of by will, shall -be deemed fraudulent and void as against creditors, -by bond, covenant, or other specialty binding -his heir,” and right of action is given the -creditors against the heir or devisee. A further -improvement was made by the 3 and 4 Will. IV., -c. 104, by which all landed estates of freehold, -custom, or copyhold, are made liable for the payment -of simple contract as well as specialty debts, -as much as they had previously been for the debts -in which the heir was bound; but still the -creditors in specialty in which the heir is bound, -are to be paid in full before the creditors by -simple contract, or the other specialty creditors, -are paid any part of their claims. By the -5 Geo. II., c. 7, all the real property in the -British plantations in America, is made subject -to debts as if it were only personal.</p> - -<p>Lands may be devised to be sold for the<span class="pagenum" id="Page_37">[Pg 37]</span> -payment of debts only to which it will be alone -restricted; or if there is sufficient to satisfy all -claims, it may be sold for the payment of legacies -only, and not debts, in which case no debts -can be paid out of the funds it produces. But in -the first place, the personal assets of the testator -shall in every instance be applied in the discharge -of his debts or general legacies, unless -by manifest intention they are exempted, as a -plain declaration, or an inference so necessary, -as to be tantamount to a declaration. A devise -of the real estate, therefore, subject to the payment -of debts, will not exempt the personal -estate, at least only in appearance; for if even -the testator direct the real estate to be sold to -pay the debts, the personal estate will, by the -rule of law, be taken to exonerate the rule, unless -the whole of the personal estate be left in specific -legacies. It is indeed directed, by the decisions -in several cases, to be thus applied, even though -the personal debt should be secured by mortgage, -and whether or not there be a bond or covenant -for repayment. By the same rule, lands which -have descended will exonerate lands which have -been devised; and both unencumbered and -mortgaged lands which are devised, though even -specifically and expressly after the payment of<span class="pagenum" id="Page_38">[Pg 38]</span> -<i>all</i> debts, will be used to throw off the mortgage, -for in every such instance the debt is -considered as only a personal debt of the testator, -and, consequently a merely collateral charge -upon the real estate.</p> - -<p>Where, however, the charge is chiefly on the -real estate, and the charge on the personal is -only collateral, a different rule prevails. As, -for instance, where a real estate has been bought -subject to a mortgage, for then the real estate -which bears the burden, and not the collateral -personal estate of the purchaser, shall be used -to discharge the debt, unless it evidently appears -that he intended that effect; but a mere covenant -for making the debt secure would not absolve -the real estate from its liability.</p> - -<p>In the application of real assets, when the -personal estate is exhausted or exempt, the order -to be observed is, firstly, “the real estate expressly -devised for the purpose shall be applied; -secondly, to the extent of the specialty debts -the real estate descended; thirdly, the real -estate specifically devised, subject to a general -charge of debts.”</p> - -<p>It is necessary also, in order to understand the -right position of legatees, to state, that where a -creditor has more than one fund to resort to for<span class="pagenum" id="Page_39">[Pg 39]</span> -the satisfaction of his claims and, another has -only one, and he who has more than one chooses -that fund on which he who has only one has a -claim, that the creditor who has only one shall -be able to come upon the other on which he had -previously no lien; so that if a special creditor -be satisfied out of the personal assets when -they are only sufficient to satisfy the simple -contract debts, the simple contract creditor -shall have a claim against the real assets when -the personal assets are exhausted. The same -marshalling of assets may take place in favour -of legatees, and against assets descended they -have the same equity; as, for instance, when -a simple contract creditor, who is prior in his -claim to a general legatee, shall have been -satisfied out of the personal assets, when they -ought to have been left for the satisfaction of -inferior claims, the general legatee shall stand -in his place as to the real assets; so when the -legacies are charged by the will on the real -estate, and the legacies given in the codicil -are not, the former shall resort to the real assets -when there is an insufficiency of the personal -assets to pay the whole. In the same manner, -should a specialty creditor choose that his claim -shall be satisfied from the assets in the hands of<span class="pagenum" id="Page_40">[Pg 40]</span> -the heir, the heir shall be entitled to a recompense -out of the personal estate.</p> - -<p>But the principles of these rules do not extend -so far as to enable one claimant to overrule -the rights of another, and a pecuniary legatee -will not, consequently, stand in the place of a -specialty creditor in his right against any lands -specifically devised, though he will against -those which have descended in an ordinary -manner. Where, however, a mortgagee has -exhausted the personal assets, instead of taking -the estate over which he held his particular -power, the legatee will come upon the mortgaged -premises for the satisfaction of his claim, -for the personal assets ought not to be so appropriated, -to the defeating of any legacy, either -specific or pecuniary. Where, also, a specialty -creditor shall have exhausted the personalty, -the legatee will have a claim upon the real estate -before a residuary devisee. Yet in the case of -<i>Handley</i> v. <i>Roberts</i>, where the testator had -left three leasehold estates, one of which was -mortgaged, and the residuary personalty, which -was the fund he appropriated to the payment of -the debt, was exhausted without fully satisfying -the claim, the other two leaseholds were held -exempt from any share of the burden, and the<span class="pagenum" id="Page_41">[Pg 41]</span> -legatee of the mortgaged estate took it with its -weight as it was. None of these rules subject -any portion of an estate to claims to which it -was not liable before, but only go to the extent of -securing the rights of every claimant with equal -fairness.</p> - -<p>Where a testator dies possessed of both copyhold -and freehold property, and he charges all -his <i>real</i> estate with the payment of his debts, -both species of property will be equally subject to -the impost, if he shall have surrendered the copyhold -to the use of his will, but if not, the freehold -must be exhausted before the copyhold can -be applied.</p> - -<p>If a legatee be entitled to a legacy at some -future day, out of the mixed fund of real and -personal estate, and he die before that day arrive, -the legacy will become vested and transmissible if -it be made payable out of the personalty, but will -sink on the death of the legatee if it be charged on -the real estate. The wife will stand in the place -of specialty creditors, for her paraphernalia, -against real assets descended, but whether or -not against such as are devised is not yet finally -determined, unless such real assets shall have -been stated specifically, to assist the personalty -in the liquidation of debts.</p> - -<p><span class="pagenum" id="Page_42">[Pg 42]</span></p> - -<p>As respects bequests for charitable objects, a -court of equity will not marshall the assets so as -to give effect out of the personalty, notwithstanding -that they are void as regards land. -Under a devise of real and personal estate in -trust to pay debts and legacies, some of which -were void by statute as (charges for charitable -objects upon real and leasehold estates), and -there proving a deficiency of assets, the other -legatees were preferred to the heir.</p> -<hr class="chap x-ebookmaker-drop"> - -<div class="chapter"> -<p><span class="pagenum" id="Page_43">[Pg 43]</span></p> - -<h2 class="nobreak" id="CHAPTER_IV">CHAPTER IV.</h2> -</div> - -<h3 id="Chap4Sec1">LEGACIES—GENERAL, SPECIFIC, LAPSED,<br/> -VESTED, DEMONSTRATIVE.</h3> - - -<p>Legacies are gifts of the property of a deceased -person to his surviving friends or relatives, expressed -in the deed or will by which his disposable -property is governed after death. They -are styled <i>general</i> when a certain amount of -property is bequeathed to a particular person, -without any certain fund being appropriated for -its payment. They are <i>specific</i> when the particular -things are named, as well as the particular -persons to whom those things are bequeathed. -Legacies <i>lapse</i>, or are lost to the party or his -representatives, or friends, when some particular -condition is annexed to the bequest, which condition -has not, or cannot be, either through -negligence or impossibility, complied with. -They are, on the contrary, <i>vested</i>, or made the -property <i>de jure</i> of the party to whom they are -left, when, through his own act or without it, -certain conditions, which were predicated by the -terms of the will, have been fulfilled; although -the legatee may not come into possession of his -rights for years perhaps after the death of the testator.<span class="pagenum" id="Page_44">[Pg 44]</span> -Farther, legacies are <i>demonstrative</i> when -it is evident that, under a certain set of circumstances, -certain persons are intended to inherit -certain portions of property, and those certain -circumstances arise by which the demonstrative -legatees acquire their rights. These several terms -will be clearer when they are farther explained -and illustrated by examples, to which we will -immediately proceed.</p> - - -<h3 id="Chap4Sec2">GENERAL LEGACIES.</h3> - -<p>General legacies are such as are specified in -a mere statement of quantity; as, A leaves to -B £500, to be paid out of his personal estate, -without specifying any particular portion of -property out of which the sum is to be paid. -Nor does it matter whether it be of money or -stock; and where the testator has not the stock -stated in his will, but has the wherewithal to -purchase it at his death, the executor is bound -to procure so much stock for the legatee. But -if the terms of the will be specific, as “so -much stock, <i>standing in his name</i>,” and he has -no stock whatever, the legacy would share the -fate of a specific legacy, and fail. The purpose, -however, to which a general legacy is directed to -be applied, will not alter its nature, however<span class="pagenum" id="Page_45">[Pg 45]</span> -specific the object may be. Personal annuities, -given by will, are also general legacies.</p> - -<p>Legacies may be specific in one sense and -pecuniary in another—being specific when they -are given out of a particular fund, and not out of -the estate at large; and pecuniary, as consisting -only of definite sums of money, and not amounting -to the gift of the fund itself, or any portion -of it.</p> - -<p>In the case of the <i>Attorney General</i> v. <i>Parkin</i>, -Lord Camden recognized the distinction between -a legacy of a certain sum due from a particular -person, and a legacy of such debt generally; -considering the former as a legacy of quantity, -while the latter he deemed to be specific.</p> - - -<h3 id="Chap4Sec3">SPECIFIC LEGACIES.</h3> - -<p>Specific legacies are of two kinds; the first of -which includes such chattels as are so described -as to identify them from all others of any other -kind, or of the same kind, as, “I give the silver -candlesticks, left me by my late uncle, to such a -person.” Here the meaning cannot be misunderstood, -and the legatee can take the particular -candlesticks in question, and none others; -and, consequently, should it have happened that -the candlesticks in question have either been lost<span class="pagenum" id="Page_46">[Pg 46]</span> -or parted with by the testator during his life-time, -or cannot be found after his death, the -person to whom the bequest is made will lose his -legacy. The second kind implies a particular -chattel, as expressed in the will, but without -distinguishing it from any other chattel of the -same kind. Thus, the words, “I hereby give -and bequeath a diamond ring to my nephew, J.,” -would give to J. a diamond ring, even though -the testator had not one in his possession at the -time of his death, and he would obtain his legacy -in full, even though those of the general legatees -should abate of half their value in consequence -of claims against the property of their benefactor. -The gift, however, of a sum of money for the -purchase of a specific legacy becomes a general -legacy, and therefore liable to abatement.</p> - -<p>Generally speaking, there is an indisposition -in the courts to construe the terms of a will into -a bequest of a specific legacy, but if the expression -clearly indicate an intention to separate -any particular thing from the general property, -they will always readily allow the specificness -of the legacy; and, hence, under some circumstances, -even pecuniary legacies become specific. -Thus, in the case of <i>Lawson</i> v. <i>Stitch</i>, a legacy -was stated as consisting of, or conveying a -certain sum of money, in a bag or chest, and<span class="pagenum" id="Page_47">[Pg 47]</span> -the whole of that money became a specific -legacy. Thus, also, in <i>Hinton</i> v. <i>Pinke</i>, a -sum of money was left, which, at the death of -the testator, was in the hands of a third party, -and was stated in the will to be so, that money -was esteemed a specific legacy. So, also, was -a rent charge upon a lease; for it was evident -that only one rent charge, or one lease, could be -understood. In like manner, the bequest of a -bond, and the amount of the testator’s stock, in -a particular fund, as well as a legacy out of the -profits of a farm, which the testator directed to -be carried on, as was decided in the case of -<i>Mayott</i> v. <i>Mayott</i>, the principle being fully -developed, in the action of <i>All Souls’ College</i> -against <i>Coddington</i>. Specific legacies may also -be carved out of a specific chattel, as is partly -shown in the case of <i>Hinton</i> v. <i>Pinke</i>, just -cited; as, where the testator gives only <i>part</i> of -a debt, instead of the whole, which is owing to -him, at the time of his death, by a third party.</p> - -<p>Yet, in order to insure the descent of a specific -legacy, which is always <i>ceteris paribus</i>, -more valuable than a general one, it is requisite -that the testator should not nullify by any other -expressions in his will the terms of a specific -legacy; as was decided in the case of <i>Parrot</i> -v. <i>Worsfield</i> where a testator, reciting that he<span class="pagenum" id="Page_48">[Pg 48]</span> -had £1500 in the 5 per cents., gave it to one -party, and then gave all other stock that he might -be possessed of at his death to another, and, in -consequence of the manner in which it was put, -the latter of these two legacies was made subject -to his debts, in preference to the former, -when, in fact, there is little doubt but that the -testator intended that both should in that respect -stand on an equal footing. Much of the same -kind of mischief arose in the case of <i>Willox</i> -v. <i>Rhodes</i>, where the testator gave a number of -legacies, and added:—“I guarantee my estates -at D. for the payment of the above legacies;” -while, in an after part of his will, he gave -many other legacies, it was held, that if the -estates at D. should prove insufficient to satisfy -the claims of the first class of legatees, the legacies -were not specific, and the whole of the -personal estate was proportionably liable for -them. But, in the case of <i>Sayer</i> v. <i>Sayer</i>, -where the testator devised the whole of his personal -estate, at a particular place, to his wife, -the bequest was held to be as specific as if he -had enumerated every particular of the property -there.</p> - -<p>In some instances mistakes have arisen, in -consequence of the misapprehension of particular<span class="pagenum" id="Page_49">[Pg 49]</span> -terms by the parties who use them; and not a little -care is often required to come at the precise meaning -of a bequest. Thus, in a general sense, the -word <i>money</i> only implies either the coin of the -realm, or the legal tender for it, bank notes; -or else such equivalent as the state may have -given in lieu of money, or that which is used -to express the money lent to the state, and for -the security of which, the faith of the state is -pledged, or the public stocks; and, therefore, -promissory notes, or bills of exchange, and -other similar <i>choses in action</i> are not included -in the meaning of the phrase, yet, in some instances, -they will be construed as meaning -such. This was shown in the case of <i>Read</i> v. -<i>Stewart</i>, where the testatrix had bequeathed a -cabinet, and all that it contained, “except -money,” and part of the contents was a promissory -note of value, and of a date payable anterior -to her will, and, of course, to her death, -it was held that the terms of the bequest did not -pass the note.</p> - -<p>Yet a liberal construction is put upon the -terms of a bequest, and an evident mistake -will be rectified, as in the case of <i>Penticost</i> v. -<i>Ley</i>, where the testatrix made a bequest of -£1,000, long annuities, standing in her name,<span class="pagenum" id="Page_50">[Pg 50]</span> -or in trust for her, while, in fact, she had no -long annuities whatever, but had really £1,000 -in the 3 per cents. reduced, it was held, that -this, and this only, could be the sum to which -she alluded, and it was accordingly appropriated -to the legatee. Still, it must be a mistake respecting -which there can be no apprehension, -or the legacy will fail; as in <i>Humphreys</i> v. -<i>Humphreys</i>, where the testator was indebted on -a mortgage, which he had paid off previously to -his death, out of a fund of £5,000, which he -had in the 3 per cents., neglecting to alter a -provision in his will, by which he had left the -whole of his stock in these 3 per cents. (which -he specified as <i>being about</i> £5,000), except -£500, which he left to another party, devising -at the same time other specific parts of his property -to be sold, and the produce to be applied -in discharge of the mortgage; the circumstance -of his having himself applied this fund to the -discharge of the mortgage was held to have redeemed -the legacy altogether, and the legatees -could obtain no remedy against those other -parts of the general estate which were directed -to be applied to the redemption of this mortgage. -This, however, was contrary to the -general rule of equity, and it may be presumed<span class="pagenum" id="Page_51">[Pg 51]</span> -that it would have been set aside on review. -Lord Bathurst, it is true, held the same principle, -at least to a certain extent, in the case of -<i>Carteret</i> v. <i>Carteret</i>, where the testator gave to -one of his connections “one thousand four hundred -pounds, for which he had sold his estate -that day,”—which sum he received, and paid -into his bankers, but drew eleven hundred of it -out the same day, leaving the other three hundred -there still; his lordship decided it to be a -legacy of quantity, and therefore general, and -subject to the diminution occasioned by the draft -of the testator; but Lord Thurlow disallowed -the distinction set up by Lord Bathurst, and decided -that a legacy of “the principal of A.’s -bond for three thousand five hundred pounds,” -was a specific legacy, although the sum was -named.</p> - -<p>Thus, the principle appears to be evolved, -that a legacy, in order to be specific, and saved -from any general abatement suffered by other -legacies, must be stated precisely as a certain -thing or fund, or a particular portion of a certain -thing or fund, so that it may be whole in itself, -though possibly a part, but a plainly indicated -part, of something particularly described in the -will.</p> - -<p><span class="pagenum" id="Page_52">[Pg 52]</span></p> - - -<h3 id="Chap4Sec4">THE VESTING OF LEGACIES.</h3> - -<p>A legacy is said to <i>vest</i> when the party to -whom it is bequeathed is not able to claim it -at the seasonable time for the payment of general -legacies, either through absence, or any other -cause; or when it is directed by the testator -that it shall be paid at some future period, and -nothing occurs before the arrival of that period -to prevent the legatee’s right. Thus, a legacy -left to be paid to a certain party a certain number -of years after the death of the testator, without -the annexation of any condition, such as, “if -the legatee shall so long live,” would vest the -legacy; and if the legatee did not survive the -period named, his heirs or representatives would -come into his right; or should it be even said -that the legacy is to be <i>payable</i> to the legatee -at a certain age, it is still vested, though he -should never attain that age. But if it be said -in the will that the bequest is to be paid <i>when</i>, -or <i>as soon as</i>, the legatee shall attain a certain -age, and he dies before the age specified, the -legacy does not vest, but goes to those who may -be stated in the will as the parties to receive it, -in the event of the first legatee failing to survive, -or into the general distribution directed by<span class="pagenum" id="Page_53">[Pg 53]</span> -law. The distinction was originally instituted -by the code of Justinian, and adopted by the -English courts, not so much on account of its -intrinsic equity, as from its prevalence in the -spiritual courts, in order, that when the court -of chancery acquired a concurrent jurisdiction -with those courts in the adjudication of legacies, -the claimant might obtain the same measure of -justice from whatever court he might apply for -redress.</p> - -<p>This rule, however, respecting the vesting -of legacies applies only to legacies of personal -property transmissible to the legatee as <i>personalty</i>; -for the contrary holds, if the legacy be -either charged upon real estate, or upon personalty -to be laid out in real estate, and it would -then be included under the next head, and would -lapse. The reason of this is, because in devises -affecting lands the ecclesiastical courts have no -concurrent jurisdiction, and the distinction -created by the circumstances of the future, does -not extend to them. Yet, should the legacy -be of personalty, and it be expressly stated -that it is to carry interest, it will vest, and be -transmissible to the legatee, or his representatives, -notwithstanding that the words of positive -conveyance, “payable,” or “to be paid,” are<span class="pagenum" id="Page_54">[Pg 54]</span> -omitted, for the payment of interest is an adjudication -of the principal.</p> - - -<h3 id="Chap4Sec5">THE LAPSING OF LEGACIES.</h3> - -<p>A legacy is said to <i>lapse</i>, or slip from, or be -lost to the legatee, where, through his own -fault, or through an impossibility over which he -has no control, he fails to fulfil that condition -of the will on which he is expressly to take the -bequest. Thus, if a legacy be left to a person -which is directed not to be paid unless he attains -a certain age, and he dies before that age, -though the death be no fault of his own, his representatives -will be divested of all the right -which they would otherwise have acquired.</p> - -<p>One peculiar instance of this was shown in the -facts elicited in the case of <i>Tulk</i> v. <i>Houlditch</i>, in -which it appeared that the testator left a legacy to a -person, concerning whom there was every probability -that he was not alive, but yet no certainty -could be obtained. In order, however, to insure -the identity of the party, the bequest had a condition -annexed to it, that the legatee should return -to England, and personally claim of the -executrix, or within the church porch of the -parish, within seven years, otherwise the legacy -was to lapse, and fall into the general residue.<span class="pagenum" id="Page_55">[Pg 55]</span> -It afterwards appeared that the legatee was -really alive at the time the bequest was made to -him, but he failed to return, and, in fact, died -abroad within the seven years. Lord Eldon, -accordingly, held that the legacy had lapsed, -for though the legatee was living he had not -fulfilled the directions of the will, and he thereby -lost his right to the bequest.</p> - -<p>The general rule respecting the lapsing of -legacies is, that if a legatee die before the testator, -the legacy shall become a portion of the -general residuary estate, nor will a statement -that the bequest is made to the legatee, his -executors, administrators or assigns, or to him -and his heirs, prevent the lapse; nor will even -the expressed desire of the testator, that the -bequest shall not fail if the legatee shall die -before him, exclude the next of kin. But a -slight alteration of the terms of the will may -prevent the failure, as in the case of the death -of A. before the testator, other persons are -named to take; for instance, A.’s legal representatives, -or the heir under his will, or to -A., B., C., “or to their heirs,” or to A., “and -failing him by decease before me, to his heirs,” -the legacy, on A.’s so dying, shall vest in such -nominees.</p> - -<p><span class="pagenum" id="Page_56">[Pg 56]</span></p> - -<p>It is decreed by 1 Vict. c. 26, s. 29, “that -in any devise or bequest of real or personal -estate, the words ‘die without born issue,’ or -‘have no issue,’ or any other words which may -import either a want or failure of issue of any -person in his life-time, or at the time of his -death, or an indefinite failure of issue, shall be -construed to mean a want or failure of issue in -the life-time, or at the time of the death of such -person, and not an indefinite failure of his issue, -unless a contrary intention shall appear by the -will.”</p> - -<p>We may conclude with the observation, that -where a legacy is clearly left to any particular -person, the court will require very clear evidences -of the failure of the performance of conditions, -before it will allow a lapse to the loss of the -representatives of the legatee; and, that just in -proportion to the clearness of the bequest, is the -danger of the lapse.</p> - - -<h3 id="Chap4Sec6">DEMONSTRATIVE LEGACIES.</h3> - -<p>It sometimes, though rarely, occurs, that the -party who is to inherit a bequest can only be -ascertained by inference, instead of from the -clear declaration of the will; and the legatees so<span class="pagenum" id="Page_57">[Pg 57]</span> -ascertained, are termed <i>demonstrative</i> legatees. -Such are often found in distant, or unknown, -or unrecognized relatives or friends of the -deceased.</p> -<hr class="chap x-ebookmaker-drop"> - -<div class="chapter"> -<p><span class="pagenum" id="Page_58">[Pg 58]</span></p> - -<h2 class="nobreak" id="CHAPTER_V">CHAPTER V.</h2> -</div> - -<h3 id="Chap5Sec1">ASSENT TO LEGACIES.</h3> - - -<p>It is the peculiar attribute of the office of an -executor, that he stands as the medium of communication -between the dead and the living. -Responsible in his conscience to the former for -the fulfilment of his desires, responsible to the -latter by the law for the satisfaction of their -rights. In him the right of property vests previous -to its distribution, and this during the -exercise of his duty, almost as fully and effectively -as if the goods he has to apportion were -his own. The legatees under a will, whether -their bequests be general or specific, acquire -only an anticipatory benefit until the time -arrives for the complete conveyance of their -legacies, either according to the terms of the -will or the rule of the law. Until then the -deputy of the testator holds complete possession, -and none can touch an iota of the chattels -without his permission. Consequently, the</p> - - -<h3 id="Chap5Sec2">ASSENT OF THE EXECUTOR</h3> - -<p>to the payment of a legacy is necessary before a -legatee can touch the property left to him; and<span class="pagenum" id="Page_59">[Pg 59]</span> -if any of those who are benefitted under a will -take possession of his legacy without that assent, -the executor may maintain an action of trespass -against him.</p> - -<p>This is highly requisite; for a misapprehension -of his duty, or a negligence in the performance -of it, might subject an executor to -serious loss. For instance, according to the -law of England, a man’s property is, in the first -instance, after his death, to be applied in the -payment of his debts in their regular order—debts -due to the crown, debts of record, judgments, -bonded and simple contract debts—and -if the effects prove insufficient, or if they are -only barely sufficient, to satisfy these, the legatees -are all excluded from any benefit under the -will. And should he have paid any legacy -before the satisfaction of any debt, and it afterwards -turn out that the funds were not ample -enough to pay both, he must either recover the -amount paid to the legatee, or satisfy the debt -out of his own private resources.</p> - -<p>Should, however, the assets prove large enough -to pay all the debts, but insufficient to satisfy -all the legacies, the legatees, and the claims of -all the general legatees, will abate in proportion; -and if he either pay, or suffer any one else to<span class="pagenum" id="Page_60">[Pg 60]</span> -appropriate to themselves, a legacy in full, while -the rest were obliged to take only a quarter of -their bequests, they would have the right of compelling -the executor to refund to them the -several amounts which they had lost by the undue -payment of one. As a protection, therefore, -to the executor, his assent to a legacy is -necessary—not that he can unjustly withhold -that assent where the means are sufficient, or -even proportionably sufficient—his assent to -a legacy is necessary before that legacy will -vest or be assured to the party to whom it is left. -But this assent once given, is evidence that the -assets are sufficient, and an admission on his -part that the fund is competent to discharge the -legacy; and should he afterwards refuse to pay -it, on the ground that it was not so, the legatee -may compel the payment out of his own private -estate.</p> - -<p>Without this assent, however, whatever may -be inchoate rights of the legatee, he has no -vested rights; and even in the instance of a -specific legacy, though it be of a chattel real, -as an estate, or of a chattel personal, as a horse -or piece of furniture, in the care or custody of -the legatee; and though the funds be sufficient -to satisfy all the claims, the executor, unless he<span class="pagenum" id="Page_61">[Pg 61]</span> -has given his assent, may maintain an action -against the legatee for possession against his -will. Nor can the legatee take possession of -his bequest without the executor’s assent, even -though the will of the testator should give authority -for that express purpose. Reason good is -there that such should be the case; for if the -will of a testator could have the effect of appointing -his property without the assent of his -executor, he might appoint every sixpence of it -to specific legatees, and defraud every one of his -creditors of their claims. Notwithstanding the -extent of his power, however, the executor cannot -divest the legatee of his inchoate right, or -anticipatory property; and should he die before -the distribution of the effects, his representatives -would take his share. Yet for the vesting of -the legacy, or the delivery of the bequest, the -assent of the executor is necessary; and what -that assent consists in we will now proceed to -show.</p> - - -<h3 id="Chap5Sec3">NATURE OF THE ASSENT.</h3> - -<p>The law has prescribed no particular form in -which this assent shall be given, and a very -slight intimation is held sufficient. Not only may -the executor authorize the legatee to take possession<span class="pagenum" id="Page_62">[Pg 62]</span> -of the bequest in direct terms, but indirect -expressions, or relative acts, will have the -same effect—anything, indeed, from which an -intended permission can be construed. Thus, -if the executor congratulate the legatee on his -legacy, or if a specific legacy be left to any one, -and the executor request him to keep or dispose -of it, or if he in any way refer a third party to -the legatee as proprietor of his legacy, or if he -himself treat him, or treat with him as the proprietor. -As for instance, where an executor -requested the lease of an estate left under a will -which he had to administer from a legatee, and -accepted the lease which was granted in accordance -with his request, it was held that he allowed -the granter to be the proprietor of the estate -which he had granted. An assent to an estate in -remainder is an assent to the present estate, for -a remainder can only be a continuation of an -estate, and therefore a part of it. Whenever -property, however, is so divided, that it has acquired -two qualities, as is the case of land under -a term for years, where there is the real property, -and the chattel real arising out of it—the -land and the rent—an assent to the legacy of -one quality is no assent to the legacy of the -other, and therefore, an assent to the legacy of<span class="pagenum" id="Page_63">[Pg 63]</span> -the rent is no assent to the legacy of the land; -but on the principle that the greater comprises -the less, assent to the legacy of the land will -carry assent to the legacy of the rent.</p> - - -<h3 id="Chap5Sec4">ABSOLUTE AND CONDITIONAL ASSENT.</h3> - -<p>The nature of <i>absolute</i> assent is self-evident. -It is an assent given to a legacy, without reference -to any contingent or dependent circumstance, -and when once given cannot be retracted, -and the legacy to which it pertains can be -affected by nothing but the subsequent discovery -of debts, which may cause an abatement of its -amount. How that acts will be shown hereafter.</p> - -<p><i>Conditional</i> assent is assent with a reservation, -or with an obligation upon the claim of -the legatee; so that if the contingency shall -occur to which the reservation shall refer, the -legacy shall not vest; or if the obligation be -not completed it shall lapse. In either case, -the condition must be precedent to the assent, -or it is no condition at all, and the executor can -never afterwards impose it; or, in other words, -the assent is absolute. Thus, if a testator leave -a leasehold estate to one of his friends, but at -the time of his death there happen to be arrearages<span class="pagenum" id="Page_64">[Pg 64]</span> -of rent, without payment of which the -property would revert to the lessor, and the -executor assent to the legacy, on condition that -the arrearages be paid by the legatee. Should -the latter pay these arrears, he becomes entitled -to the bequest; if not, the legacy would lapse, -for there is no assent. This is necessary; for -if the executor were to give an absolute assent -to the legacy, he would be obliged either to pay -the arrears out of the general estate to the loss -of the other legatees, or out of his own pocket -by their compulsion. If, however, the executor -be imprudent enough to assent to the legacy on -condition of something being done subsequent -to its reception by the legatee, as, for instance, -with the proviso that he shall pay the executor -a certain sum annually, this in no way affects -the assent, and the legatee would take whether -he performed his condition or not. In the case -of failure the executor could not divest him, -but must seek his remedy as he might.</p> - -<p>The peculiar position of a fund out of which -a legacy is to be paid, though it may be required -by the will that it should be given absolutely, -may make it necessary for the executor to impose -a condition, and he has a right to do so; -and he may withhold the legacy if that condition<span class="pagenum" id="Page_65">[Pg 65]</span> -be not complied with, that is, provided it -be reasonable. But if he once part with the -legacy, he at the same time divests himself of -the power of imposing stipulations, and he will -have no right afterwards to make that conditional, -which by the terms of the will was made -absolute.</p> - -<p>It should be observed that the executor’s assent -to a legacy has reference to the state of the -fund at the time of the testator’s death, and if -through circumstances any alteration should -take place in the state of the fund before the -payment of the legacy, he has no right to -mould his conduct and direct his assent upon -that alteration, but he must pass the legacy as -he found it, and the legatee will have the right -either to accept it with its clogs, or abandon it -altogether; and whatever advantage accrues to -his inchoate property after the death of the testator, -and before his actual acquisition of the -legacy, to that the legatee is fully entitled.</p> - -<p>When once assent has been given to a legacy, -the executor can never afterwards retract; and notwithstanding -a subsequent retraction, a legatee -of a <i>specific</i> bequest has a right to his legacy, -and has a lien on the assets, and may follow -them for that specific part; and should the executor<span class="pagenum" id="Page_66">[Pg 66]</span> -refuse to pay it, he may recover it by action -at law. An assent to a void legacy, however, -is void; and should an executor by mistake -give such assent, the legatee acquires no -right thereby.</p> - -<p>Assent may be given before the probate is -obtained; for an executor’s authority arises at the -moment of the testator’s death; but if he has -not attained the age of twenty-one years, he is -incapable, by the Act of 38 Geo. III., c. 87, -of exercising the functions of his office, and his -assent before that time is consequently void.</p> -<hr class="chap x-ebookmaker-drop"> - -<div class="chapter"> -<p><span class="pagenum" id="Page_67">[Pg 67]</span></p> - -<h2 class="nobreak" id="CHAPTER_VI">CHAPTER VI.</h2> -</div> - -<h3 id="Chap6Sec1">PAYMENT OF LEGACIES.</h3> - - -<p>With respect to the <i>time of paying legacies</i>, it -may be observed that whilst, on the one hand, -the assent of an executor is necessary to the -title of a legacy, the law has taken care that he -shall not be hurried into the performance of his -important duty, and be led into errors without -due deliberation, and has provided therefore -that he shall not be compelled to pay the bequests -of his testator before a year has expired -from the period of his death. This custom is -adopted from the civil law, and it is conceived -that during this time he will have opportunity of -fully informing himself as to the state of the -property and its competency to pay all the calls -which either the will of the deceased has imposed -in the shape of legacies, or which have -arisen from his proceedings in the shape of -debts. An executor, therefore, who after the -satisfaction of all these leading calls, shall pay -over the remainder of the estate, if any, to the -residuary legatee, cannot plead that he has <i>fully</i> -and rightly parted with all the property, in -reply to his testator’s liability on a covenant<span class="pagenum" id="Page_68">[Pg 68]</span> -which is only made apparent after that time and -within twelve months of his decease. Against -the legatees, indeed, who have obtained too -much, and before the time, he has a remedy; -for it was decided in the case of <i>Livesey</i> v. -<i>Livesey</i>, that where an executor had by mistake -made payment of an annuity before the legatee -was entitled to receive it, he was entitled to -retain the amount of the payments he had made -out of the future payments. And if a legacy be -paid in instalments, and through inadvertence -the executor pay a larger amount in the first -instalment than he ought to have done, he may -either retain it altogether out of the next, or -deduct it equally from each of the subsequent -instalments.</p> - - -<h3 id="Chap6Sec2">THE LEGATEES.</h3> - -<p>If a testator leave a legacy to an individual -“and to the heir of his body,” or to a female, -“and to be secured to her and to the heirs of her -body,” or to one “and to her issue,” they are -<i>absolute</i> legacies, the sole and entire property of -the party to whom they are left, and those parties -are entitled to receive them. Such is the -case also where a legacy is left to a female, -“when and if she should attain the age of<span class="pagenum" id="Page_69">[Pg 69]</span> -twenty-one, to her sole and separate use; and in -case of her death, having children, her share to -go her children,” and to her personally, or to -any deputy or attorney, as the law phrases it, -properly authorized to receive it, must the legacy -be paid. But if a legacy be only generally expressed -as to be given to a certain individual, -and “to her heirs or children,” the legatee only -takes a <i>life interest</i>.</p> - -<p>Where legacies are left to each of a certain -number of relatives, <i>or</i> to their respective child -or children, and should any of them die without -a child, the share reverting to the residuary -legatee, the relatives so named who survived the -testator will each take their share absolutely; for -the law cannot contemplate so distant an event -as the possibility of the legatees having no -children all their lives, and therefore passes the -property of the bequest to them in full, and -thereby destroys any reversionary right of the -residuary legatee.</p> - -<p>When a legacy is left to an infant, or person -under twenty-one years of age, payable on -his attaining that age, and he die before the -time, his representative, although he will inherit -the property, cannot claim it until the period -arrives when the party through whom he claims<span class="pagenum" id="Page_70">[Pg 70]</span> -would have received it. But if the will states -that the legacy is to carry interest, the representative -can claim it immediately on the death of -his principal. Should a legacy be made payable -out of <i>land</i>, at some future time, although it -should carry interest in the meantime, it was -decided in <i>Gowler</i> v. <i>Standerwick</i>, that if the -legatee should die before the time arrives, the -fund should not be raised until that time, securing, -nevertheless, a personal fund for a future -or contingent legatee. When, however, it was -stated by the will that certain legacies should be -paid on the land, <i>but expressed neither</i> time nor -<i>manner</i> in which the money should be raised, -nor did it appear that the estate was a reversion, -which was in fact the case, it was held that the -estate should be disposed of in order to raise the -legacies, and that they should be paid with interest -from the time of the testator’s death, and -not from the period when the estate would -accrue.</p> - -<p>Should the will express that a legatee is to -take on attaining the age of twenty-one, and in -the event of his dying before twenty-one, then -that it is to go to another, that other person -will take the legacy immediately on the death of -the first-named legatee, if he should die before<span class="pagenum" id="Page_71">[Pg 71]</span> -twenty-one, because he does not claim through -the first party, but, in consequence of a direct -right which became his on the death of that -party. But in the case of <i>Moore</i> v. <i>Godfrey</i>, -where legacies were given to three co-heiresses, -to be paid to them on their respective marriages, -and in case of the death of any of them before -marriage, her or their share to go to the survivor -or survivors, and one of the sisters did die -unmarried, it was held, that the portion of the -deceased did not accrue to her sisters, any more -than their original shares, until the period of -their marriage, according to the terms of the -original devise.</p> - -<p>Where stock is left to trustees to pay the dividends -from time to time to a married woman -for her separate use, the bequest is an unlimited -one, and passes the capital as well as its interest, -and she may appoint or direct its disposal at her -death. And where a certain sum had been left -to trustees, in trust, to pay the dividends to a -party, until an exchange of certain lands should -be made between him and another party, the -capital then to be equally divided between them, -and the latter died before the time for making -the exchange expired, the former party obtained -the whole of the legacy.</p> - -<p><span class="pagenum" id="Page_72">[Pg 72]</span></p> - -<p>If a legatee is to receive an estate, including -residuary legateeship, on condition of paying -the debts of the deceased, and he take the estate, -he is liable for the whole of the debts, though -they may exceed the value of the estate tenfold.</p> - -<p>Conditions may be annexed to legacies, which -in some cases become substantive parts of title, -but are in others void and useless. Thus, when -a legacy was bequeathed, on condition that the -legatee “should change the course of life he had -too long followed, and give up low company, -frequenting public houses, &c.,” it was held -that it was a condition that ought to be complied -with, and the court directed an inquiry to ascertain -whether it had been before it would direct -the payment of the legacy. But when, on the -contrary, a legacy was left to a married woman, -on condition that she lived apart from her husband, -the legacy was awarded notwithstanding the -breach of the conditions, because it was deemed -contrary to good morals and Christian duty. -When a condition was annexed that the legatee -should take, provided he did not marry without -the consent of the executor, expressed in writing, -and he did marry with the consent of such -executor, but expressed verbally and not in -writing, it was held that he was entitled to the<span class="pagenum" id="Page_73">[Pg 73]</span> -legacy; and the consent of a co-executor, who -had not acted, was not considered requisite.</p> - -<p>A legacy was given on condition that the -legatee intimated to the executor his willingness -to forgive certain debts, and he filed a bill in -Chancery to recover his claims, it was decided -that he had forfeited the legacy. In a case -where a testator authorized his executors, at any -time before a certain person attained the age of -twenty-six, to raise £600 by sale of stock, and -apply the same towards his advancement in life, -or for any purposes for his benefit, as the executors -might think proper, and at the age of twenty-six -he made an absolute gift of the £600 -to that person, the executors declined to act, -and the court refused to give any portion of it, -until it could ascertain whether the legatee’s -position was such that he would suffer detriment -unless the whole, or a portion, were paid.</p> - - -<h3 id="Chap6Sec3">TO WHOM LEGACIES SHOULD BE PAID.</h3> - -<p>No small care is required on the part of executors -to pay legacies into the hands of those -who are entitled to receive them; for it has not -unfrequently happened, that an honest man has -been reduced to ruin by the obligation to pay -money over again out of his own pocket, in<span class="pagenum" id="Page_74">[Pg 74]</span> -consequence of mistakes, in regard to those who -were entitled to receive portions of the estate of -his testator. Nor has it been a very unfrequent -circumstance, that legatees have been deprived -of their just, and perhaps necessary rights, in -consequence of their inability to recover from -an executor that which he had wrongly paid to -other persons.</p> - -<p>Many of these misfortunes have occurred from -the misapplication of legacies to infants; and -the general rule is now established, that an -executor has no right to pay a legacy to the -father of an infant, or person under age, or to -any other relative of his, without the sanction of -a court of equity. Even in the case of an adult -child, such payment must be made with the -consent of the child, and confirmed by his ratification -at an after period. For cases have -occurred, where, with the most honest intentions, -an executor has paid a legacy to the father of an -infant, and has been obliged to pay it over again -to the legatee himself on coming of age; and -although several of these cases have been attended -with gross hardship to the executors, yet the -custom is attended with such serious danger to -the interests of infants, that the court would -never consent to sanction the practice. Nor will<span class="pagenum" id="Page_75">[Pg 75]</span> -it do so, even though the testator on his death-bed -desire it, as was shown in the case of <i>Dagby</i> -v. <i>Tolferry</i>, where the points were extreme. -An executor will, however, be justified in paying -a portion of a legacy left to an infant, to -the infant himself, or to his guardian, if it should -appear that the money is absolutely needed -for necessaries for such infant. But should -a legacy to an infant be too inconsiderable to -apply for the authority of the Court of Chancery, -the executor would be justified, too, in paying it -into the hands of the infant, or its father; but -he is not generally warranted in so doing. And -if the father institute a suit in a spiritual court, -in order to have his infant’s legacy paid into his -hands, a prohibition against it may be readily -obtained by the executor.</p> - -<p>Where the circumstances are difficult, and the -executor knows not how to act, he may shelter -himself under the directions of the statute 36 -Geo. III., c. 52, s. 2, by which it is enacted, -that “where by reason of the infancy, or absence -beyond the seas, of any legatee, the executor -cannot pay a legacy chargeable with duty by -virtue of that act; that is to say, given by any -will or testamentary instrument of any person -who shall die after the passing of that act, it<span class="pagenum" id="Page_76">[Pg 76]</span> -shall be lawful for him to pay such legacy, after -deducting the duty chargeable thereon, into the -Bank of England, with the privity of the Accountant-general -of the Court of Chancery, to -be placed to the account of the legatee, for payment -of which the Accountant-general shall give -his certificate, on production of the certificate of -the Commissioners of Stamps, that the duty -thereon hath been fully paid; and such payment -into the Bank shall be a sufficient discharge -for such legacy, which, when paid, shall -be laid out by the Accountant-general in the -purchase of 3 per cent consolidated annuities, -which, with the dividends thereon, shall be -transferred or paid to the person entitled thereto, -or otherwise applied for his benefit, on application -to the Court of Chancery, by petition -or motion, in a summary way.” But, as in all -other cases, the executor is not bound to pay -the legacy into the Bank until the end of a -year from the testator’s death.</p> - -<p>When personal property is bequeathed for life -to one party, with a direction that it shall go to -another after his death, the property is retained -by the executor, who must invest it in the 3 per -cent. consols, until the death of the first legatee, -when it must be handed to him. But this<span class="pagenum" id="Page_77">[Pg 77]</span> -rule does not hold where a testator dies abroad, -having made his will out of this country, unless -the first inheritors come here, in which case the -person in remainder has a right to have it invested.</p> - -<p>If an executor obtain a power to divide a sum -of money committed to his charge, at his discretion, -a court of equity will interfere to control -his division, if it be unreasonable; as, where -a testator left £1,100 to be divided between his -two daughters (one of whom was by a former -marriage), at the discretion of their mother, -and she gave £1,000 to her own child, and only -£100 to the other, her distribution was overruled, -and an equal division was made. The -misbehaviour, however, of any of the children, -will form a sufficient plea for unequal division.</p> - -<p>In a case where a testator had left a sum of -money to a certain person, but left it to the discretion -of the executors out at interest, if they -should think such a disposition more to his -advantage, with orders to pay him the dividends, -and directing the principal to be divided amongst -his children at his death, or at the legatee’s discretion -in default of children, and one of the -executors died, and the other renounced the -trust, it was held that the legacy was absolute to<span class="pagenum" id="Page_78">[Pg 78]</span> -the legatee, and it was accordingly paid to -him.</p> - -<p>Another instance of unexpected contingency -occurred in the case of <i>Birch</i> v. <i>Wade</i>, where -the testator willed that one-third of his principal -estate and effects should be left entirely at the -disposal of his wife, if she should think proper, -among his relations, after the death of his sisters; -she died without making any disposition, -and it was held a trust for her next of kin at the -time of her death.</p> - -<p>A legacy left to a married woman must be -paid to her husband; and even where she was -living separated from her husband, without -maintenance, and the executor paid her a -legacy and took her receipt for it, he was compelled, -on suit from the husband, to pay it over -again with interest. Nor is the rule altered in a -case of divorce, <i>a mensâ et thoro</i>; for there the -husband alone can release it. But the executor -may decline to pay it to him, if it amounts to -£200, unless he has made, or will make, a -sufficient provision for his wife. And if a -woman who is, or has been, married, becomes -entitled to a legacy, the court will require a -positive affidavit that it has not been in any way<span class="pagenum" id="Page_79">[Pg 79]</span> -settled, before it will decree payment to her -personally.</p> - -<p>Money bequeathed to a charity established -out of England, must be paid to the persons -named by the testator to receive it.</p> - -<p>Legacies left to a bankrupt become the property -of his assignees, unless his certificate be -signed, and even then, unless it has been allowed -by the Lord Chancellor; and they must, therefore, -under such circumstances, be paid to his -assignees.</p> - -<p>As the law now stands, all legacies are subject -to the debts of the testator, unless there be sufficient -assets to pay both debts and legacies; and -in the event, therefore, of the estate proving -insufficient for the debts, after some or all of the -legacies are paid, the executor can compel the -legatees to refund altogether, or in proportion to -the deficiency.</p> - -<p>Under the will of a person residing abroad, -or in the colonies, legacies are payable in the -currency of the country where the testator resided -at the time the will was made. Nor does -it affect the case that he has effects in this -country as well as there, unless he shall have -separated the funds by his will, and charged the<span class="pagenum" id="Page_80">[Pg 80]</span> -legacies on his English property. When some -legacies are described as <i>sterling</i>, and others not -so, they must be paid accordingly, and in compliance -with such description. So also, if a -testator bequeath a legacy, either of a single -sum of money, or of an annuity charged on -lands which are in another country, the full -amount shall be paid according to English -count, and without any deductions for the expenses -of remittance.</p> - - -<h3 id="Chap6Sec4">DUTY UPON LEGACIES.</h3> - -<p>The executor is responsible for the duties upon -all legacies, and must pay them. He, therefore, -pays every legacy specified in the will, short -of the amount which he has to deduct for duty; -and on its payment he is bound to take a property -stamp receipt, according to the value of -the legacy and the relationship of the legatee to -the testator.</p> - -<p>A bond debt forgiven by will is a legacy, and -therefore liable to duty. Duty was charged -upon a legacy of £50 a-year, to be laid -out in bread and divided among the poor of -the parish, although some of them only received -about two shillings a-year each. But -a residue to be divided, in which the several<span class="pagenum" id="Page_81">[Pg 81]</span> -recipients did not receive more than £15 each, -was not chargeable, though had any of the -legatees been entitled to more than £20, their -share would have been.</p> - -<p>Where a legacy is directed to be paid “without -deductions” or “free of expense,” the executors -must pay the amount in full, and discharge -the duty from some other fund. Such, -also, will hold with regard to annuities as well as -sole legacies. An expression, also, of “clear -of all outgoings and taxes,” with respect to an -annuity, will carry the same privilege.</p> - -<p>If by the will a legacy be given free of duty, -and by the codicil that legacy is revoked, and a -larger one given by way of increase, it is -equally free from duty as the original legacy. -But if an annuity be left in the body of the will, -free from all stamps and taxes, with a gift over, -which is revoked by the codicil, and a small -annuity left, without the gift over, it is held to -be altogether a new legacy, and not entitled to -exemption from duty.</p> - -<p>Where a testator died in India, where his -executors also lived, and where all his property -was situate, it was held that a legacy remitted to -a legatee in England was free from duty. -When, however, part of such a testator’s property<span class="pagenum" id="Page_82">[Pg 82]</span> -was found in England, and a legatee -instituted a suit to have his legacy paid out -of that portion of the assets, it was liable to -the duty. Property belonging to a foreigner, -though it be in this country and given to English -legatees, is not liable to duty. But American, -Austrian, French, and Russian stock, if the -property of a person domiciled in this country, -is liable to legacy duty. Yet probate duty is -not payable upon property situated in a foreign -country, though brought into this, and administered -by an English executor.</p> - -<p>In general it may be observed, that where an -executor has inadvertently paid a legacy without -deducting the duty, he can compel the legatee to -refund, and in one instance, when an annuity -had been paid for four years without deducting -the duty, until the executor had assigned the -whole of his interest, he was deemed to be only -the surety of the legatee, and could compel him -to return accordingly.</p> - - -<h3 id="Chap6Sec5">INTEREST ON LEGACIES.</h3> - -<p>A distinction formerly prevailed as to the -quantum of interest payable on legacies charged -on lands, and such as were chargeable on personal -property, for it was deemed but fair that<span class="pagenum" id="Page_83">[Pg 83]</span> -as land never produces a profit equal to the -interest on money, so the interest on a legacy -charged on such property, should be one per -cent. lower than that charged on personalty. -But the distinction is now set aside, and -whether legacies are charged on realty or -personal estate, the established practice is -to allow only <i>four per cent.</i> where no other -rate of interest is specified by the will. This -custom prevails upon all legacies administered -in England whether derived from home, colonial, -or foreign property.</p> - -<p>When interest is payable upon a legacy, can -alone be learned from the will itself. Not that -interest will only be paid when the will expressly -states that it should be, for the greater number -of cases are those in which interest has been paid -from inference of the testator’s intention as -derived from the construction of his expressions. -But these are so various, that any attempt to -specify the principles on which the construction -for interest is based would be futile; a careful -attention to the wording of the will generally -enables any one of ordinary understanding to -ascertain when he may be entitled to interest, -when that effect is not plainly expressed. The -ordinary rule is, that wherever a legacy is made<span class="pagenum" id="Page_84">[Pg 84]</span> -payable out of a fund bringing interest at the -death of a testator, as a mortgage or money -in the funds, the legatee is entitled to the interest -his share of that fund produces, until -his legacy is paid; and wherever the bequest is -made upon property not bringing interest, as -when a sum is left to a party to be raised out of -houses or land to be sold, the legatee is not -entitled to any such benefit.</p> -<hr class="chap x-ebookmaker-drop"> - -<div class="chapter"> -<p><span class="pagenum" id="Page_85">[Pg 85]</span></p> - -<h2 class="nobreak" id="CHAPTER_VII">CHAPTER VII.</h2> -</div> - -<h3 id="Chap7Sec1">THE ADEMPTION, CUMULATION, AND ABATEMENT<br/> -OF LEGACIES.</h3> - - -<p>No care is too great to give a precise expression -to a testator’s will, and difficulties enough -often arise after every care has been taken to avoid -misconstruction, and therefore there cannot be -too much care spent in endeavouring to ascertain, -as well as to express, the meaning of a -testament. But there are frequently other circumstances -which supervene to alter, enlarge, -or altogether obviate the intentions of a testator -for the benefit of his relatives, without possibly -any cognizance on his part. In some instances, -the legacies which he intended to give -are, either by his own voluntary or inadvertent -act, or by the influence of circumstances, altogether -taken away and lost to the parties whom -he nominates legatees; and this is called the -<i>ademption</i> of legacies. In other cases, the -amounts of the legacies specified become, -through the effect of other circumstances, increased, -and this is called the <i>cumulation</i> of -legacies. In others, again the amounts, instead<span class="pagenum" id="Page_86">[Pg 86]</span> -of being increased or destroyed, are decreased; -and this is called the <i>abatement</i> of legacies.</p> - - -<h3 id="Chap7Sec2">THE ADEMPTION OF LEGACIES.</h3> - -<p>This ademption may be either express or implied; -for the testator may not only in express -terms revoke a legacy which he had previously -given, but his intention to do so may be indicated -by particular acts. Thus, where a father -gives to one of his children, a daughter, a legacy -of a certain amount, and afterwards gives -her that amount, or a larger one, as a marriage -portion; or if a son, gives him the same amount -or a larger one, to establish him in business, or -to be of benefit to him for life in any other important -way,—in both these cases, the legacies -are considered to be adeemed or lost to the -parties. But this ademption will not be implied, -if the bequest is to come out of the residue, -nor if the provision given by the father -in his life-time is loaded with any contingency; -as repayment, or the performance of any particular -covenant, as a consideration for the provision -for them; it is in a manner bought by -the recipient, and it would be unjust to deprive -him or her of a free gift, as a legacy is always -construed to be by such a purchase. Neither<span class="pagenum" id="Page_87">[Pg 87]</span> -is the legacy lost if the converse of this be the -case; that is, if the legacy itself, and not the -provision, be loaded with a limitation or contingency; -for then it is evident that the legacy and -the provision are not identical, which they must -evidently be for the former to be lost. Nor is -it adeemed if the testator be a stranger, or the -uncle of the legatee, or if the latter be an -illegitimate child, unless the father shall openly -have assumed the office and performed the duties -of a parent to it. The principle of <i>identity</i> -appears to be the governing rule; for as the law -does not allow the other legatees to be defrauded -by a sum being paid to a party under a will, -which had been previously paid by the act of -the testator himself, so it must have clear evidence -that the testator intended the gift to supersede -the legacy, before it will suffer the -legatee to be deprived of his right, simply because -he appears to have enjoyed more favour -at the hands of the testator than was at first -supposed. Ademption, therefore, may always -be resisted by evidence.</p> - -<p>But a legacy is evidently adeemed when -there is a decided impossibility of paying it; as -when the whole of the testator’s assets have -been swallowed up by his debts, which always<span class="pagenum" id="Page_88">[Pg 88]</span> -precede legacies in their right. When the object -itself is lost which is made the subject of a -legacy, the latter is of course adeemed, as when -a man leaves a particular estate as a specific -legacy without stating its value, and he disposes -of that estate before his death. Or if he leave -the furniture of a particular house, and he leave -that house, and sell the furniture before his death. -But the removal of the whole of the furniture to -another house would be only an implied -ademption, and might be resisted by evidence of -the testator’s intention to give that particular -furniture, wherever it might be, to the legatee. -The bequest of a debt to a debtor, of which -debt the testator compels payment after making -his will, would be an ademption of the legacy; -but the voluntary payment of the debt before -the death of the testator, would not, in all probability, -deprive the legatee of the amount -which he had paid; the ademption would then -depend there, as it does, indeed, in all cases, -upon the intention of the testator, where circumstances -do not offer an insuperable bar to -the fulfilment, such as we have stated above. -The object, therefore, should be to get that intention -ascertained.</p> - -<p><span class="pagenum" id="Page_89">[Pg 89]</span></p> - - -<h3 id="Chap7Sec3">THE CUMULATION OF LEGACIES.</h3> - -<p>Cumulation, like ademption, very often depends -upon the intention of the testator, for it -may be his desire to increase a legacy, or he -may, through inadvertence, state it twice over. -For instance, where a specific thing, as an -estate, a horse, or a house, is stated twice over, -there is clearly no cumulation. When a like -quantity is bequeathed to the same legatee twice -in the same instrument—as the will, or stated in -the will, and repeated in the codicil, unless the -word, “another,” or something equivalent to it, -be annexed. So, also, a subsequent statement -of a certain sum, as an unconditional legacy, -when it had been previously stated as a conditional -one, is no cumulation. When, however, -two unequal quantities are stated for the -same legatee, though they be in the same instrument, -they are two legacies, and not one. -Such is the case, also, when two equal sums are -given by different instruments; and when both -legacies are expressed as being given for the -same cause, they are not cumulative; it is too -apparently an inadvertence. But when two different -reasons are assigned they are two legacies; -or when the legacies are of different natures,<span class="pagenum" id="Page_90">[Pg 90]</span> -though of the same amount, as one a sum of -money, and the other an annuity, or two annuities -of similar amount, but differently paid, -as one half-yearly, and the other quarterly, or -similarly paid, but out of different estates, as -one out of real, and the other out of personal, -estate.</p> - -<p>Extrinsic circumstances will also cumulate -legacies, though stated of the same amount; as, -when after the date of the will, but before the -date of the codicil, the testator has received an -increase of fortune, for it is then evident that -he intended to dispose of the accession. Indeed -other, very slight, circumstances are often -admitted as evidences of cumulation.</p> - - -<h3 id="Chap7Sec4">LEGACIES IN SATISFACTION OF DEBT.</h3> - -<p>Sometimes it happens that legacies, instead of -being purely such, are mere satisfactions of -debt; and on this point, as on the two preceding, -the intention of the testator is the guide -of judgment. In general, the legacy of a -debtor to his creditor, when the bequest is equal -in amount to the debt, or greater, is considered -as a payment of the obligation. But many circumstances -may occur to obviate this construction, -as if the legacy be left conditionally; for a<span class="pagenum" id="Page_91">[Pg 91]</span> -man has no right to take an uncertain advantage -as a recompense for a certain claim. Nor -when the advantage is postponed whilst the -claim is present; as when the legacy is to be -paid at a future period, while the debt is due -immediately on the death of the testator, though -the postponement be for ever so short a period. -Nor unless the legacy be in every way equal in -advantage to the debt. Nor when an express -injunction is laid on the executor for the payment -of debts. Nor if the debt be contracted -after the date of the will, for then the satisfaction -of it by the legacy could not have been -contemplated. Nor when the amount of the -debt is open and uncertain, as when there has -been a running account between the testator and -legatee, which is unclosed at the death of the -former, for then he could not positively know of -the debt.</p> - -<p>In this instance, however, as in others, the -law is favourable in its construction of kindly -intentions, and parol evidence is accordingly -admissible to refute the construction unfavourable -to the legatee’s interests. But, just as well -as considerate, it decrees that a legacy shall be -considered as satisfaction of a debt in all cases -where there is a deficiency of assets.</p> - -<p><span class="pagenum" id="Page_92">[Pg 92]</span></p> - -<p>On the contrary part, in order to secure the -interests of both parties, it is held that a legacy -left to a debtor is to be considered as a complete -or partial satisfaction of his claim, for he -is conceived to have goods in hand for the payment -of so much of the amount of his debt. -Through the influence of the same principle, -money or goods delivered or lent to a legatee, -are considered as a <i>pro tanto</i> payment of his -claim. Should the debt itself be bequeathed, it -is a pure legacy, if there are sufficient assets to -satisfy all the other debts; but if not, then this -debt is considered as part of the assets, and the -legatee would share the benefit in proportion.</p> - - -<h3 id="Chap7Sec5">ABATEMENT AND REFUNDING OF LEGACIES.</h3> - -<p>In the event of there not being sufficient -assets to satisfy the debts of the testator, all the -legacies under his will are subject to abatement -or reduction to pay the creditors; but in the -event of there being sufficient to satisfy the -debts and specific legacies, by adeeming the -several legacies, they are adeemed or abated in -proportion; and should the executor have paid certain -of the legacies, or even all of them, and afterwards -find debts which he was bound to satisfy, he -can compel the legatees to refund in proportion<span class="pagenum" id="Page_93">[Pg 93]</span> -to the amount of their bequests, until the claims -are all paid. It is usual to take an agreement -to refund if necessary; but whether this is done -or not, the power of the executor remains as long -as the claims of the creditors can be enforced.</p> -<hr class="chap x-ebookmaker-drop"> - -<div class="chapter"> -<p><span class="pagenum" id="Page_94">[Pg 94]</span></p> - -<h2 class="nobreak" id="CHAPTER_VIII">CHAPTER VIII.</h2> -</div> - -<h3 id="Chap8Sec1">LEGACIES TO EXECUTORS,—AND LEGATEES’<br/> -REMEDIES AGAINST THEM.</h3> - - -<p>If a legacy be left to the executor, and he take -possession of it generally, he will hold it under -his official capacity; and his union of the double -character of executor and legatee makes no -difference, and his legacy is subject to all the -caution and consequences which are required and -wait upon other legacies—the same cumulation, -abatement, and ademption. He only has a -right to secure himself first of the several legatees. -Assent is as necessary to his legacy as to -others; and it may be given either expressly -or by implication; and he is subject to the same -liability and conditions. But yet he is entitled -to the full distinction between the character of -executor and legatee; and if he enter upon an -estate as the former, it does not inculpate him -in liabilities until he shall have assumed them -as the latter.</p> - -<p>If a testator appoint his debtor to be his -executor, the appointment formally releases and -destroys the debt, unless the executor renounces -the trust; and he is safe against all but creditors<span class="pagenum" id="Page_95">[Pg 95]</span> -of the estate, for the bequest of a debt to an -executor is always considered as a specific -bequest.</p> - -<p>Should, however, this bequest be contradicted, -as regards the legatees, by the express -terms of the will, or by strong inference, as -where the testator leaves a legacy, and directs it -expressly to be paid out of the debt due to him -by the executor. In like manner, also, if he -leave the executor a legacy, it is evident that it -is not to be cumulated by the debt also. -So, where a testator bequeathed large legacies, -as well as the residue of his estate, to his executors, -one of whom was indebted to him to the -amount of £3,000, under bond, it was held -that the whole of the remainder, as it stood, -should be equally divided between them; that -is, he that was not indebted became a creditor, -to a certain amount above him who had hitherto -been a debtor to the estate.</p> - -<p>An executor has a still further right, when he -is not named as expressly an executor in trust, -and there is no appointment of the residue of -the estate, after all the debts and legacies are -satisfied, he, in right of his office, becomes residuary -legatee; but, if either, by inference, -expression, or legacy, he is debarred from that<span class="pagenum" id="Page_96">[Pg 96]</span> -advantage, he becomes tenant in trust for the -next of kin, and among these he must divide -the amount of the testator’s property.</p> - - -<h3 id="Chap8Sec2">LEGATEES’ REMEDY AGAINST THE EXECUTOR.</h3> - -<p>Though an executor hold no personal property -in the estate of his testator, he is responsible -for the right care and custody of the property -under his charge, while for whatever mischief -may arise from the misapplication and injury -of it before distribution, without any fault -of his wilfully committed, he can shelter himself -under the estate. All costs, consequently, which -are incurred in following the testator’s instruction, -or in the right appropriation of the estate, -are to be paid out of that estate. But for all -wilful negligence, or improper conduct, he is -answerable to the legatees, both at common -law and in equity, and is liable to pay the cost -out of his own estate.</p> - -<p>Appended is the list of duties payable upon -legacies, and the amount of which the executor -is entitled to deduct before he pays the amount -of each legacy.</p> - -<hr class="chap x-ebookmaker-drop"> - -<p><span class="pagenum" id="Page_97">[Pg 97]</span></p> - -<table id="dutytable" class="autotableborder"> - <tr> - <th colspan="4" class="doublebottomborder">Rates of Duty, payable on Legacies, Annuities, Residues, &c., of the Amount or Value of £20 and upwards, -by Stat. 55 Geo. III. cap. 184.</th> - </tr> - <tr> - <td class="tdc borderbottom" colspan="2">The Description of the Legatee, Residuary Legatee, or next of Kin, <i>must be in the following Words of the Act</i>.</td> - <td class="tdl justify borderbottom smalltdindent borderright">Out of Personal Estate only, if the Deceased died any time <i>before</i> or upon the 5th April, 1805.</td> - <td class="tdl justify borderbottom smalltdindent">Out of Real or Personal Estate, if the Deceased died <i>after</i> the 5th April, 1805.</td> - </tr> - <tr> - <td class="tdl justify bigtdindent">To Children of the Deceased, and their Descendants, or to the Father or Mother or any Lineal Ancestor of the Deceased</td> - <td class="tdl bigtd">}</td> - <td class="tdc borderleft">(no Legacy Duty)</td> - <td class="tdc borderleft">£1. per Cent.</td> - </tr> - <tr> - <td class="tdl justify bigtdindent">To Brothers and Sisters of the Deceased, and their Descendants</td> - <td class="tdl bigtd">}</td> - <td class="tdc borderleft">£2. 10<i>s.</i> per Cent.</td> - <td class="tdc borderleft">£3. do.</td> - </tr> - <tr> - <td class="tdl justify bigtdindent">To Brothers and Sisters of the Father or Mother of the Deceased, and their Descendants</td> - <td class="tdl bigtd">}</td> - <td class="tdc borderleft">£4. — do.</td> - <td class="tdc borderleft">£5. do.</td> - </tr> - <tr> - <td class="tdl justify bigtdindent">To Brothers and Sisters of a Grandfather or Grandmother of the Deceased, and their Descendants</td> - <td class="tdl bigtd">}</td> - <td class="tdc borderleft">£5. — do.</td> - <td class="tdc borderleft" >£6. do.</td> - </tr> - <tr> - <td class="tdl justify bigtdindent">To any Person in any other Degree of Collateral Consanguinity, or to Strangers in Blood to the Deceased</td> - <td class="tdl bigtd">}</td> - <td class="tdc borderleft">£8. — do.</td> - <td class="tdc borderleft">£10. do.</td> - </tr> - <tr class="nobottommargin"> - <td class="tdl justify indent2" colspan="4">Where any Legatee <i>shall take Two</i> or more distinct Legacies or Benefits under any Will or Testamentary Instrument, which shall together be of - the Amount or Value of £20. each shall be charged with Duty, although each or either may be separately under that Amount or Value.</td> - </tr> - <tr class="tdwithspecialsymbol"> - <td class="tdl justify indent2" colspan="4"><span class="bigtd">☞</span> OBSERVE.--<i>The Duty on Annuities is payable by four Annual Instalments in the first four years from the commencement of the Annuity, and a - penalty will be incurred if each of the succeeding Instalments of Duty be not paid in due time.</i></td> - </tr> - <tr> - <td class="tdl justify indent2" colspan="4"><i>Should the Annuitant die before the four years have expired, the date of his or her death must be communicated in writing to the Comptroller of the Legacy Duties.</i></td> - </tr> - <tr> - <td class="tdc doublebottomborder" colspan="4">The Husband or Wife of the Deceased is not chargeable with Duty.</td> - </tr> - <tr> - <td class="tdc" colspan="4">PENALTIES.</td> - </tr> - <tr> - <td class="tdl justify" colspan="4">The Receipt must be dated on the Day of signing, and the Duty paid <i>within 21 Day after</i>, under a Penalty of £10 per Cent. on the amount of the -<i>Duty</i>; and if the Duty be not paid within <i>Three Months</i> from the Date of the Receipt, a Penalty will be incurred of £10 per Cent. on the <i>amount or -value of the Legacy</i>:—and the Commissioners of Stamps cannot, <i>under any circumstances</i>, Stamp a Receipt on which the Duty shall not be paid -within the time limited, unless the Penalty be also paid.</td> - </tr> - <tr> - <td class="tdc" colspan="4"><hr class="r5"/></td> - </tr> - <tr> - <td class="tdc" colspan="4">NOTE.—Rents, Interests, or Dividends of Legacies, down to the Date of the Receipt, must be added to the Legacy, and Duty paid thereon.</td> - </tr> -</table> - - -<p><span class="pagenum" id="Page_98">[Pg 98]</span></p> - -<hr class="chap x-ebookmaker-drop"> - -<div class="chapter"> -<p class="center"> -<span class="small8">LONDON:<br> -CLARKE, PRINTERS, SILVER STREET, FALCON SQUARE.</span><br> -</p> -</div> - -<hr class="chap x-ebookmaker-drop"> - -<div class="chapter transnote"> -<h2 class="nobreak" id="Transcribers_Notes">Transcriber’s Notes</h2> - -<p class="center">Obvious errors and omissions in punctuation have been fixed.</p> - -</div> - -<div style='display:block; 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