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

TO WHOM LEGACIES SHOULD BE PAID.

No small care is required on the part of executors to pay legacies into the hands of those who are entitled to receive them; for it has not unfrequently happened, that an honest man has been reduced to ruin by the obligation to pay money over again out of his own pocket, in consequence of mistakes, in regard to those who were entitled to receive portions of the estate of his testator. Nor has it been a very unfrequent circumstance, that legatees have been deprived of their just, and perhaps necessary rights, in consequence of their inability to recover from an executor that which he had wrongly paid to other persons.

Many of these misfortunes have occurred from the misapplication of legacies to infants; and the general rule is now established, that an executor has no right to pay a legacy to the father of an infant, or person under age, or to any other relative of his, without the sanction of a court of equity. Even in the case of an adult child, such payment must be made with the consent of the child, and confirmed by his ratification at an after period. For cases have occurred, where, with the most honest intentions, an executor has paid a legacy to the father of an infant, and has been obliged to pay it over again to the legatee himself on coming of age; and although several of these cases have been attended with gross hardship to the executors, yet the custom is attended with such serious danger to the interests of infants, that the court would never consent to sanction the practice. Nor will it do so, even though the testator on his death-bed desire it, as was shown in the case of Dagby v. Tolferry, where the points were extreme. An executor will, however, be justified in paying a portion of a legacy left to an infant, to the infant himself, or to his guardian, if it should appear that the money is absolutely needed for necessaries for such infant. But should a legacy to an infant be too inconsiderable to apply for the authority of the Court of Chancery, the executor would be justified, too, in paying it into the hands of the infant, or its father; but he is not generally warranted in so doing. And if the father institute a suit in a spiritual court, in order to have his infant’s legacy paid into his hands, a prohibition against it may be readily obtained by the executor.

Where the circumstances are difficult, and the executor knows not how to act, he may shelter himself under the directions of the statute 36 Geo. III., c. 52, s. 2, by which it is enacted, that “where by reason of the infancy, or absence beyond the seas, of any legatee, the executor cannot pay a legacy chargeable with duty by virtue of that act; that is to say, given by any will or testamentary instrument of any person who shall die after the passing of that act, it shall be lawful for him to pay such legacy, after deducting the duty chargeable thereon, into the Bank of England, with the privity of the Accountant-general of the Court of Chancery, to be placed to the account of the legatee, for payment of which the Accountant-general shall give his certificate, on production of the certificate of the Commissioners of Stamps, that the duty thereon hath been fully paid; and such payment into the Bank shall be a sufficient discharge for such legacy, which, when paid, shall be laid out by the Accountant-general in the purchase of 3 per cent consolidated annuities, which, with the dividends thereon, shall be transferred or paid to the person entitled thereto, or otherwise applied for his benefit, on application to the Court of Chancery, by petition or motion, in a summary way.” But, as in all other cases, the executor is not bound to pay the legacy into the Bank until the end of a year from the testator’s death.

When personal property is bequeathed for life to one party, with a direction that it shall go to another after his death, the property is retained by the executor, who must invest it in the 3 per cent. consols, until the death of the first legatee, when it must be handed to him. But this rule does not hold where a testator dies abroad, having made his will out of this country, unless the first inheritors come here, in which case the person in remainder has a right to have it invested.

If an executor obtain a power to divide a sum of money committed to his charge, at his discretion, a court of equity will interfere to control his division, if it be unreasonable; as, where a testator left £1,100 to be divided between his two daughters (one of whom was by a former marriage), at the discretion of their mother, and she gave £1,000 to her own child, and only £100 to the other, her distribution was overruled, and an equal division was made. The misbehaviour, however, of any of the children, will form a sufficient plea for unequal division.

In a case where a testator had left a sum of money to a certain person, but left it to the discretion of the executors out at interest, if they should think such a disposition more to his advantage, with orders to pay him the dividends, and directing the principal to be divided amongst his children at his death, or at the legatee’s discretion in default of children, and one of the executors died, and the other renounced the trust, it was held that the legacy was absolute to the legatee, and it was accordingly paid to him.

Another instance of unexpected contingency occurred in the case of Birch v. Wade, where the testator willed that one-third of his principal estate and effects should be left entirely at the disposal of his wife, if she should think proper, among his relations, after the death of his sisters; she died without making any disposition, and it was held a trust for her next of kin at the time of her death.

A legacy left to a married woman must be paid to her husband; and even where she was living separated from her husband, without maintenance, and the executor paid her a legacy and took her receipt for it, he was compelled, on suit from the husband, to pay it over again with interest. Nor is the rule altered in a case of divorce, a mensâ et thoro; for there the husband alone can release it. But the executor may decline to pay it to him, if it amounts to £200, unless he has made, or will make, a sufficient provision for his wife. And if a woman who is, or has been, married, becomes entitled to a legacy, the court will require a positive affidavit that it has not been in any way settled, before it will decree payment to her personally.

Money bequeathed to a charity established out of England, must be paid to the persons named by the testator to receive it.

Legacies left to a bankrupt become the property of his assignees, unless his certificate be signed, and even then, unless it has been allowed by the Lord Chancellor; and they must, therefore, under such circumstances, be paid to his assignees.

As the law now stands, all legacies are subject to the debts of the testator, unless there be sufficient assets to pay both debts and legacies; and in the event, therefore, of the estate proving insufficient for the debts, after some or all of the legacies are paid, the executor can compel the legatees to refund altogether, or in proportion to the deficiency.

Under the will of a person residing abroad, or in the colonies, legacies are payable in the currency of the country where the testator resided at the time the will was made. Nor does it affect the case that he has effects in this country as well as there, unless he shall have separated the funds by his will, and charged the legacies on his English property. When some legacies are described as sterling, and others not so, they must be paid accordingly, and in compliance with such description. So also, if a testator bequeath a legacy, either of a single sum of money, or of an annuity charged on lands which are in another country, the full amount shall be paid according to English count, and without any deductions for the expenses of remittance.