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

THE VESTING OF LEGACIES.

A legacy is said to vest when the party to whom it is bequeathed is not able to claim it at the seasonable time for the payment of general legacies, either through absence, or any other cause; or when it is directed by the testator that it shall be paid at some future period, and nothing occurs before the arrival of that period to prevent the legatee’s right. Thus, a legacy left to be paid to a certain party a certain number of years after the death of the testator, without the annexation of any condition, such as, “if the legatee shall so long live,” would vest the legacy; and if the legatee did not survive the period named, his heirs or representatives would come into his right; or should it be even said that the legacy is to be payable to the legatee at a certain age, it is still vested, though he should never attain that age. But if it be said in the will that the bequest is to be paid when, or as soon as, the legatee shall attain a certain age, and he dies before the age specified, the legacy does not vest, but goes to those who may be stated in the will as the parties to receive it, in the event of the first legatee failing to survive, or into the general distribution directed by law. The distinction was originally instituted by the code of Justinian, and adopted by the English courts, not so much on account of its intrinsic equity, as from its prevalence in the spiritual courts, in order, that when the court of chancery acquired a concurrent jurisdiction with those courts in the adjudication of legacies, the claimant might obtain the same measure of justice from whatever court he might apply for redress.

This rule, however, respecting the vesting of legacies applies only to legacies of personal property transmissible to the legatee as personalty; for the contrary holds, if the legacy be either charged upon real estate, or upon personalty to be laid out in real estate, and it would then be included under the next head, and would lapse. The reason of this is, because in devises affecting lands the ecclesiastical courts have no concurrent jurisdiction, and the distinction created by the circumstances of the future, does not extend to them. Yet, should the legacy be of personalty, and it be expressly stated that it is to carry interest, it will vest, and be transmissible to the legatee, or his representatives, notwithstanding that the words of positive conveyance, “payable,” or “to be paid,” are omitted, for the payment of interest is an adjudication of the principal.