In some instances mistakes have arisen, in consequence of the misapprehension of particular terms by the parties who use them; and not a little care is often required to come at the precise meaning of a bequest. Thus, in a general sense, the word money only implies either the coin of the realm, or the legal tender for it, bank notes; or else such equivalent as the state may have given in lieu of money, or that which is used to express the money lent to the state, and for the security of which, the faith of the state is pledged, or the public stocks; and, therefore, promissory notes, or bills of exchange, and other similar choses in action are not included in the meaning of the phrase, yet, in some instances, they will be construed as meaning such. This was shown in the case of Read v. Stewart, where the testatrix had bequeathed a cabinet, and all that it contained, “except money,” and part of the contents was a promissory note of value, and of a date payable anterior to her will, and, of course, to her death, it was held that the terms of the bequest did not pass the note.
Yet a liberal construction is put upon the terms of a bequest, and an evident mistake will be rectified, as in the case of Penticost v. Ley, where the testatrix made a bequest of £1,000, long annuities, standing in her name, or in trust for her, while, in fact, she had no long annuities whatever, but had really £1,000 in the 3 per cents. reduced, it was held, that this, and this only, could be the sum to which she alluded, and it was accordingly appropriated to the legatee. Still, it must be a mistake respecting which there can be no apprehension, or the legacy will fail; as in Humphreys v. Humphreys, where the testator was indebted on a mortgage, which he had paid off previously to his death, out of a fund of £5,000, which he had in the 3 per cents., neglecting to alter a provision in his will, by which he had left the whole of his stock in these 3 per cents. (which he specified as being about £5,000), except £500, which he left to another party, devising at the same time other specific parts of his property to be sold, and the produce to be applied in discharge of the mortgage; the circumstance of his having himself applied this fund to the discharge of the mortgage was held to have redeemed the legacy altogether, and the legatees could obtain no remedy against those other parts of the general estate which were directed to be applied to the redemption of this mortgage. This, however, was contrary to the general rule of equity, and it may be presumed that it would have been set aside on review. Lord Bathurst, it is true, held the same principle, at least to a certain extent, in the case of Carteret v. Carteret, where the testator gave to one of his connections “one thousand four hundred pounds, for which he had sold his estate that day,”—which sum he received, and paid into his bankers, but drew eleven hundred of it out the same day, leaving the other three hundred there still; his lordship decided it to be a legacy of quantity, and therefore general, and subject to the diminution occasioned by the draft of the testator; but Lord Thurlow disallowed the distinction set up by Lord Bathurst, and decided that a legacy of “the principal of A.’s bond for three thousand five hundred pounds,” was a specific legacy, although the sum was named.
Thus, the principle appears to be evolved, that a legacy, in order to be specific, and saved from any general abatement suffered by other legacies, must be stated precisely as a certain thing or fund, or a particular portion of a certain thing or fund, so that it may be whole in itself, though possibly a part, but a plainly indicated part, of something particularly described in the will.
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.
THE LAPSING OF LEGACIES.
A legacy is said to lapse, or slip from, or be lost to the legatee, where, through his own fault, or through an impossibility over which he has no control, he fails to fulfil that condition of the will on which he is expressly to take the bequest. Thus, if a legacy be left to a person which is directed not to be paid unless he attains a certain age, and he dies before that age, though the death be no fault of his own, his representatives will be divested of all the right which they would otherwise have acquired.
One peculiar instance of this was shown in the facts elicited in the case of Tulk v. Houlditch, in which it appeared that the testator left a legacy to a person, concerning whom there was every probability that he was not alive, but yet no certainty could be obtained. In order, however, to insure the identity of the party, the bequest had a condition annexed to it, that the legatee should return to England, and personally claim of the executrix, or within the church porch of the parish, within seven years, otherwise the legacy was to lapse, and fall into the general residue. It afterwards appeared that the legatee was really alive at the time the bequest was made to him, but he failed to return, and, in fact, died abroad within the seven years. Lord Eldon, accordingly, held that the legacy had lapsed, for though the legatee was living he had not fulfilled the directions of the will, and he thereby lost his right to the bequest.
The general rule respecting the lapsing of legacies is, that if a legatee die before the testator, the legacy shall become a portion of the general residuary estate, nor will a statement that the bequest is made to the legatee, his executors, administrators or assigns, or to him and his heirs, prevent the lapse; nor will even the expressed desire of the testator, that the bequest shall not fail if the legatee shall die before him, exclude the next of kin. But a slight alteration of the terms of the will may prevent the failure, as in the case of the death of A. before the testator, other persons are named to take; for instance, A.’s legal representatives, or the heir under his will, or to A., B., C., “or to their heirs,” or to A., “and failing him by decease before me, to his heirs,” the legacy, on A.’s so dying, shall vest in such nominees.