ABSOLUTE AND CONDITIONAL ASSENT.
The nature of absolute assent is self-evident. It is an assent given to a legacy, without reference to any contingent or dependent circumstance, and when once given cannot be retracted, and the legacy to which it pertains can be affected by nothing but the subsequent discovery of debts, which may cause an abatement of its amount. How that acts will be shown hereafter.
Conditional assent is assent with a reservation, or with an obligation upon the claim of the legatee; so that if the contingency shall occur to which the reservation shall refer, the legacy shall not vest; or if the obligation be not completed it shall lapse. In either case, the condition must be precedent to the assent, or it is no condition at all, and the executor can never afterwards impose it; or, in other words, the assent is absolute. Thus, if a testator leave a leasehold estate to one of his friends, but at the time of his death there happen to be arrearages of rent, without payment of which the property would revert to the lessor, and the executor assent to the legacy, on condition that the arrearages be paid by the legatee. Should the latter pay these arrears, he becomes entitled to the bequest; if not, the legacy would lapse, for there is no assent. This is necessary; for if the executor were to give an absolute assent to the legacy, he would be obliged either to pay the arrears out of the general estate to the loss of the other legatees, or out of his own pocket by their compulsion. If, however, the executor be imprudent enough to assent to the legacy on condition of something being done subsequent to its reception by the legatee, as, for instance, with the proviso that he shall pay the executor a certain sum annually, this in no way affects the assent, and the legatee would take whether he performed his condition or not. In the case of failure the executor could not divest him, but must seek his remedy as he might.
The peculiar position of a fund out of which a legacy is to be paid, though it may be required by the will that it should be given absolutely, may make it necessary for the executor to impose a condition, and he has a right to do so; and he may withhold the legacy if that condition be not complied with, that is, provided it be reasonable. But if he once part with the legacy, he at the same time divests himself of the power of imposing stipulations, and he will have no right afterwards to make that conditional, which by the terms of the will was made absolute.
It should be observed that the executor’s assent to a legacy has reference to the state of the fund at the time of the testator’s death, and if through circumstances any alteration should take place in the state of the fund before the payment of the legacy, he has no right to mould his conduct and direct his assent upon that alteration, but he must pass the legacy as he found it, and the legatee will have the right either to accept it with its clogs, or abandon it altogether; and whatever advantage accrues to his inchoate property after the death of the testator, and before his actual acquisition of the legacy, to that the legatee is fully entitled.
When once assent has been given to a legacy, the executor can never afterwards retract; and notwithstanding a subsequent retraction, a legatee of a specific bequest has a right to his legacy, and has a lien on the assets, and may follow them for that specific part; and should the executor refuse to pay it, he may recover it by action at law. An assent to a void legacy, however, is void; and should an executor by mistake give such assent, the legatee acquires no right thereby.
Assent may be given before the probate is obtained; for an executor’s authority arises at the moment of the testator’s death; but if he has not attained the age of twenty-one years, he is incapable, by the Act of 38 Geo. III., c. 87, of exercising the functions of his office, and his assent before that time is consequently void.