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

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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.