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

ABSOLUTE AND CONDITIONAL ASSENT.

The peculiar position of a fund out of which a legacy is to be paid, though it may be required by the will that it should be given absolutely, may make it necessary for the executor to impose a condition, and he has a right to do so; and he may withhold the legacy if that condition be not complied with, that is, provided it be reasonable. But if he once part with the legacy, he at the same time divests himself of the power of imposing stipulations, and he will have no right afterwards to make that conditional, which by the terms of the will was made absolute.

It should be observed that the executor's assent to a legacy has reference to the state of the fund at the time of the testator's death, and if through circumstances any alteration should take place in the state of the fund before the payment of the legacy, he has no right to mould his conduct and direct his assent upon that alteration, but he must pass the legacy as he found it, and the legatee will have the right either to accept it with its clogs, or abandon it altogether; and whatever advantage accrues to his inchoate property after the death of the testator, and before his actual acquisition of the legacy, to that the legatee is fully entitled.

PAYMENT OF LEGACIES.

THE LEGATEES.

Where stock is left to trustees to pay the dividends from time to time to a married woman for her separate use, the bequest is an unlimited one, and passes the capital as well as its interest, and she may appoint or direct its disposal at her death. And where a certain sum had been left to trustees, in trust, to pay the dividends to a party, until an exchange of certain lands should be made between him and another party, the capital then to be equally divided between them, and the latter died before the time for making the exchange expired, the former party obtained the whole of the legacy.

If a legatee is to receive an estate, including residuary legateeship, on condition of paying the debts of the deceased, and he take the estate, he is liable for the whole of the debts, though they may exceed the value of the estate tenfold.

Conditions may be annexed to legacies, which in some cases become substantive parts of title, but are in others void and useless. Thus, when a legacy was bequeathed, on condition that the legatee "should change the course of life he had too long followed, and give up low company, frequenting public houses, &c.," it was held that it was a condition that ought to be complied with, and the court directed an inquiry to ascertain whether it had been before it would direct the payment of the legacy. But when, on the contrary, a legacy was left to a married woman, on condition that she lived apart from her husband, the legacy was awarded notwithstanding the breach of the conditions, because it was deemed contrary to good morals and Christian duty. When a condition was annexed that the legatee should take, provided he did not marry without the consent of the executor, expressed in writing, and he did marry with the consent of such executor, but expressed verbally and not in writing, it was held that he was entitled to the legacy; and the consent of a co-executor, who had not acted, was not considered requisite.

A legacy was given on condition that the legatee intimated to the executor his willingness to forgive certain debts, and he filed a bill in Chancery to recover his claims, it was decided that he had forfeited the legacy. In a case where a testator authorized his executors, at any time before a certain person attained the age of twenty-six, to raise ?600 by sale of stock, and apply the same towards his advancement in life, or for any purposes for his benefit, as the executors might think proper, and at the age of twenty-six he made an absolute gift of the ?600 to that person, the executors declined to act, and the court refused to give any portion of it, until it could ascertain whether the legatee's position was such that he would suffer detriment unless the whole, or a portion, were paid.

TO WHOM LEGACIES SHOULD BE PAID.

No small care is required on the part of executors to pay legacies into the hands of those who are entitled to receive them; for it has not unfrequently happened, that an honest man has been reduced to ruin by the obligation to pay money over again out of his own pocket, in consequence of mistakes, in regard to those who were entitled to receive portions of the estate of his testator. Nor has it been a very unfrequent circumstance, that legatees have been deprived of their just, and perhaps necessary rights, in consequence of their inability to recover from an executor that which he had wrongly paid to other persons.

When personal property is bequeathed for life to one party, with a direction that it shall go to another after his death, the property is retained by the executor, who must invest it in the 3 per cent. consols, until the death of the first legatee, when it must be handed to him. But this rule does not hold where a testator dies abroad, having made his will out of this country, unless the first inheritors come here, in which case the person in remainder has a right to have it invested.

If an executor obtain a power to divide a sum of money committed to his charge, at his discretion, a court of equity will interfere to control his division, if it be unreasonable; as, where a testator left ?1,100 to be divided between his two daughters , at the discretion of their mother, and she gave ?1,000 to her own child, and only ?100 to the other, her distribution was overruled, and an equal division was made. The misbehaviour, however, of any of the children, will form a sufficient plea for unequal division.

In a case where a testator had left a sum of money to a certain person, but left it to the discretion of the executors out at interest, if they should think such a disposition more to his advantage, with orders to pay him the dividends, and directing the principal to be divided amongst his children at his death, or at the legatee's discretion in default of children, and one of the executors died, and the other renounced the trust, it was held that the legacy was absolute to the legatee, and it was accordingly paid to him.

Money bequeathed to a charity established out of England, must be paid to the persons named by the testator to receive it.

Legacies left to a bankrupt become the property of his assignees, unless his certificate be signed, and even then, unless it has been allowed by the Lord Chancellor; and they must, therefore, under such circumstances, be paid to his assignees.

As the law now stands, all legacies are subject to the debts of the testator, unless there be sufficient assets to pay both debts and legacies; and in the event, therefore, of the estate proving insufficient for the debts, after some or all of the legacies are paid, the executor can compel the legatees to refund altogether, or in proportion to the deficiency.

DUTY UPON LEGACIES.

The executor is responsible for the duties upon all legacies, and must pay them. He, therefore, pays every legacy specified in the will, short of the amount which he has to deduct for duty; and on its payment he is bound to take a property stamp receipt, according to the value of the legacy and the relationship of the legatee to the testator.

A bond debt forgiven by will is a legacy, and therefore liable to duty. Duty was charged upon a legacy of ?50 a-year, to be laid out in bread and divided among the poor of the parish, although some of them only received about two shillings a-year each. But a residue to be divided, in which the several recipients did not receive more than ?15 each, was not chargeable, though had any of the legatees been entitled to more than ?20, their share would have been.

Where a legacy is directed to be paid "without deductions" or "free of expense," the executors must pay the amount in full, and discharge the duty from some other fund. Such, also, will hold with regard to annuities as well as sole legacies. An expression, also, of "clear of all outgoings and taxes," with respect to an annuity, will carry the same privilege.

If by the will a legacy be given free of duty, and by the codicil that legacy is revoked, and a larger one given by way of increase, it is equally free from duty as the original legacy. But if an annuity be left in the body of the will, free from all stamps and taxes, with a gift over, which is revoked by the codicil, and a small annuity left, without the gift over, it is held to be altogether a new legacy, and not entitled to exemption from duty.

Where a testator died in India, where his executors also lived, and where all his property was situate, it was held that a legacy remitted to a legatee in England was free from duty. When, however, part of such a testator's property was found in England, and a legatee instituted a suit to have his legacy paid out of that portion of the assets, it was liable to the duty. Property belonging to a foreigner, though it be in this country and given to English legatees, is not liable to duty. But American, Austrian, French, and Russian stock, if the property of a person domiciled in this country, is liable to legacy duty. Yet probate duty is not payable upon property situated in a foreign country, though brought into this, and administered by an English executor.

In general it may be observed, that where an executor has inadvertently paid a legacy without deducting the duty, he can compel the legatee to refund, and in one instance, when an annuity had been paid for four years without deducting the duty, until the executor had assigned the whole of his interest, he was deemed to be only the surety of the legatee, and could compel him to return accordingly.

INTEREST ON LEGACIES.

When interest is payable upon a legacy, can alone be learned from the will itself. Not that interest will only be paid when the will expressly states that it should be, for the greater number of cases are those in which interest has been paid from inference of the testator's intention as derived from the construction of his expressions. But these are so various, that any attempt to specify the principles on which the construction for interest is based would be futile; a careful attention to the wording of the will generally enables any one of ordinary understanding to ascertain when he may be entitled to interest, when that effect is not plainly expressed. The ordinary rule is, that wherever a legacy is made payable out of a fund bringing interest at the death of a testator, as a mortgage or money in the funds, the legatee is entitled to the interest his share of that fund produces, until his legacy is paid; and wherever the bequest is made upon property not bringing interest, as when a sum is left to a party to be raised out of houses or land to be sold, the legatee is not entitled to any such benefit.

THE ADEMPTION, CUMULATION, AND ABATEMENT OF LEGACIES.

THE ADEMPTION OF LEGACIES.

But a legacy is evidently adeemed when there is a decided impossibility of paying it; as when the whole of the testator's assets have been swallowed up by his debts, which always precede legacies in their right. When the object itself is lost which is made the subject of a legacy, the latter is of course adeemed, as when a man leaves a particular estate as a specific legacy without stating its value, and he disposes of that estate before his death. Or if he leave the furniture of a particular house, and he leave that house, and sell the furniture before his death. But the removal of the whole of the furniture to another house would be only an implied ademption, and might be resisted by evidence of the testator's intention to give that particular furniture, wherever it might be, to the legatee. The bequest of a debt to a debtor, of which debt the testator compels payment after making his will, would be an ademption of the legacy; but the voluntary payment of the debt before the death of the testator, would not, in all probability, deprive the legatee of the amount which he had paid; the ademption would then depend there, as it does, indeed, in all cases, upon the intention of the testator, where circumstances do not offer an insuperable bar to the fulfilment, such as we have stated above. The object, therefore, should be to get that intention ascertained.

THE CUMULATION OF LEGACIES.

Cumulation, like ademption, very often depends upon the intention of the testator, for it may be his desire to increase a legacy, or he may, through inadvertence, state it twice over. For instance, where a specific thing, as an estate, a horse, or a house, is stated twice over, there is clearly no cumulation. When a like quantity is bequeathed to the same legatee twice in the same instrument--as the will, or stated in the will, and repeated in the codicil, unless the word, "another," or something equivalent to it, be annexed. So, also, a subsequent statement of a certain sum, as an unconditional legacy, when it had been previously stated as a conditional one, is no cumulation. When, however, two unequal quantities are stated for the same legatee, though they be in the same instrument, they are two legacies, and not one. Such is the case, also, when two equal sums are given by different instruments; and when both legacies are expressed as being given for the same cause, they are not cumulative; it is too apparently an inadvertence. But when two different reasons are assigned they are two legacies; or when the legacies are of different natures, though of the same amount, as one a sum of money, and the other an annuity, or two annuities of similar amount, but differently paid, as one half-yearly, and the other quarterly, or similarly paid, but out of different estates, as one out of real, and the other out of personal, estate.

Extrinsic circumstances will also cumulate legacies, though stated of the same amount; as, when after the date of the will, but before the date of the codicil, the testator has received an increase of fortune, for it is then evident that he intended to dispose of the accession. Indeed other, very slight, circumstances are often admitted as evidences of cumulation.

LEGACIES IN SATISFACTION OF DEBT.

Sometimes it happens that legacies, instead of being purely such, are mere satisfactions of debt; and on this point, as on the two preceding, the intention of the testator is the guide of judgment. In general, the legacy of a debtor to his creditor, when the bequest is equal in amount to the debt, or greater, is considered as a payment of the obligation. But many circumstances may occur to obviate this construction, as if the legacy be left conditionally; for a man has no right to take an uncertain advantage as a recompense for a certain claim. Nor when the advantage is postponed whilst the claim is present; as when the legacy is to be paid at a future period, while the debt is due immediately on the death of the testator, though the postponement be for ever so short a period. Nor unless the legacy be in every way equal in advantage to the debt. Nor when an express injunction is laid on the executor for the payment of debts. Nor if the debt be contracted after the date of the will, for then the satisfaction of it by the legacy could not have been contemplated. Nor when the amount of the debt is open and uncertain, as when there has been a running account between the testator and legatee, which is unclosed at the death of the former, for then he could not positively know of the debt.

In this instance, however, as in others, the law is favourable in its construction of kindly intentions, and parol evidence is accordingly admissible to refute the construction unfavourable to the legatee's interests. But, just as well as considerate, it decrees that a legacy shall be considered as satisfaction of a debt in all cases where there is a deficiency of assets.

ABATEMENT AND REFUNDING OF LEGACIES.

In the event of there not being sufficient assets to satisfy the debts of the testator, all the legacies under his will are subject to abatement or reduction to pay the creditors; but in the event of there being sufficient to satisfy the debts and specific legacies, by adeeming the several legacies, they are adeemed or abated in proportion; and should the executor have paid certain of the legacies, or even all of them, and afterwards find debts which he was bound to satisfy, he can compel the legatees to refund in proportion to the amount of their bequests, until the claims are all paid. It is usual to take an agreement to refund if necessary; but whether this is done or not, the power of the executor remains as long as the claims of the creditors can be enforced.

LEGACIES TO EXECUTORS,--AND LEGATEES' REMEDIES AGAINST THEM.

If a legacy be left to the executor, and he take possession of it generally, he will hold it under his official capacity; and his union of the double character of executor and legatee makes no difference, and his legacy is subject to all the caution and consequences which are required and wait upon other legacies--the same cumulation, abatement, and ademption. He only has a right to secure himself first of the several legatees. Assent is as necessary to his legacy as to others; and it may be given either expressly or by implication; and he is subject to the same liability and conditions. But yet he is entitled to the full distinction between the character of executor and legatee; and if he enter upon an estate as the former, it does not inculpate him in liabilities until he shall have assumed them as the latter.

If a testator appoint his debtor to be his executor, the appointment formally releases and destroys the debt, unless the executor renounces the trust; and he is safe against all but creditors of the estate, for the bequest of a debt to an executor is always considered as a specific bequest.

Should, however, this bequest be contradicted, as regards the legatees, by the express terms of the will, or by strong inference, as where the testator leaves a legacy, and directs it expressly to be paid out of the debt due to him by the executor. In like manner, also, if he leave the executor a legacy, it is evident that it is not to be cumulated by the debt also. So, where a testator bequeathed large legacies, as well as the residue of his estate, to his executors, one of whom was indebted to him to the amount of ?3,000, under bond, it was held that the whole of the remainder, as it stood, should be equally divided between them; that is, he that was not indebted became a creditor, to a certain amount above him who had hitherto been a debtor to the estate.

An executor has a still further right, when he is not named as expressly an executor in trust, and there is no appointment of the residue of the estate, after all the debts and legacies are satisfied, he, in right of his office, becomes residuary legatee; but, if either, by inference, expression, or legacy, he is debarred from that advantage, he becomes tenant in trust for the next of kin, and among these he must divide the amount of the testator's property.

LEGATEES' REMEDY AGAINST THE EXECUTOR.

Though an executor hold no personal property in the estate of his testator, he is responsible for the right care and custody of the property under his charge, while for whatever mischief may arise from the misapplication and injury of it before distribution, without any fault of his wilfully committed, he can shelter himself under the estate. All costs, consequently, which are incurred in following the testator's instruction, or in the right appropriation of the estate, are to be paid out of that estate. But for all wilful negligence, or improper conduct, he is answerable to the legatees, both at common law and in equity, and is liable to pay the cost out of his own estate.

Appended is the list of duties payable upon legacies, and the amount of which the executor is entitled to deduct before he pays the amount of each legacy.

LONDON: CLARKE, PRINTERS, SILVER STREET, FALCON SQUARE.

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