PAYMENT OF LEGACIES.
With respect to the time of paying legacies, it may be observed that whilst, on the one hand, the assent of an executor is necessary to the title of a legacy, the law has taken care that he shall not be hurried into the performance of his important duty, and be led into errors without due deliberation, and has provided therefore that he shall not be compelled to pay the bequests of his testator before a year has expired from the period of his death. This custom is adopted from the civil law, and it is conceived that during this time he will have opportunity of fully informing himself as to the state of the property and its competency to pay all the calls which either the will of the deceased has imposed in the shape of legacies, or which have arisen from his proceedings in the shape of debts. An executor, therefore, who after the satisfaction of all these leading calls, shall pay over the remainder of the estate, if any, to the residuary legatee, cannot plead that he has fully and rightly parted with all the property, in reply to his testator’s liability on a covenant which is only made apparent after that time and within twelve months of his decease. Against the legatees, indeed, who have obtained too much, and before the time, he has a remedy; for it was decided in the case of Livesey v. Livesey, that where an executor had by mistake made payment of an annuity before the legatee was entitled to receive it, he was entitled to retain the amount of the payments he had made out of the future payments. And if a legacy be paid in instalments, and through inadvertence the executor pay a larger amount in the first instalment than he ought to have done, he may either retain it altogether out of the next, or deduct it equally from each of the subsequent instalments.