Read Ebook: The hand-book of the law of legacies containing a statement of the nature of legacies and the accidents to which they are subjects; together with the rights of legatees and the causes and manner of the ademption cumulation and abatement of their bequests by Anonymous

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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.

THE ASSETS.

REAL ASSETS.

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

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

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

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

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

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

PERSONAL ASSETS.

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

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

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

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

LEGAL ASSETS OF CHOSES IN ACTION.

EQUITABLE ASSETS.

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

CONTINGENT AND DEPENDENT ASSETS.

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

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

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

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

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

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

MARSHALLING OF THE ASSETS.

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

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

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

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

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

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

GENERAL LEGACIES.

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

SPECIFIC LEGACIES.

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

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

THE VESTING OF LEGACIES.

THE LAPSING OF LEGACIES.

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

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

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

DEMONSTRATIVE LEGACIES.

ASSENT TO LEGACIES.

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

ASSENT OF THE EXECUTOR

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

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

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

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

NATURE OF THE ASSENT.

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

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