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

LEGACIES AND LEGATEES.

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.

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 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.

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 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.

An infant, if alive, though yet unborn, may be a legatee; for it was decided in the case of Defflis v. Goldschmidt, 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 Trower v. Butts, 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.

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 three was written in mistake, instead of four. 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, Earl v. Wilson, it was determined that the words “to such child or children, if more than one, as A. may happen to be enciente 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 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.

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 relations, or family, 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, personal representatives, mean executors and administrators, unless some accompanying expression point out a different tendency. Next of kin was decided to be construed in its legal import for some time, but the decision was overruled, and now it means nearest of kin; and a 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 Booth v. Dean, 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.

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.