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