It is decreed by 1 Vict. c. 26, s. 29, “that in any devise or bequest of real or personal estate, the words ‘die without born issue,’ or ‘have no issue,’ or any other words which may import either a want or failure of issue of any person in his life-time, or at the time of his death, or an indefinite failure of issue, shall be construed to mean a want or failure of issue in the life-time, or at the time of the death of such person, and not an indefinite failure of his issue, unless a contrary intention shall appear by the will.”
We may conclude with the observation, that where a legacy is clearly left to any particular person, the court will require very clear evidences of the failure of the performance of conditions, before it will allow a lapse to the loss of the representatives of the legatee; and, that just in proportion to the clearness of the bequest, is the danger of the lapse.
DEMONSTRATIVE LEGACIES.
It sometimes, though rarely, occurs, that the party who is to inherit a bequest can only be ascertained by inference, instead of from the clear declaration of the will; and the legatees so ascertained, are termed demonstrative legatees. Such are often found in distant, or unknown, or unrecognized relatives or friends of the deceased.
CHAPTER V.
ASSENT TO LEGACIES.
It is the peculiar attribute of the office of an executor, that he stands as the medium of communication between the dead and the living. Responsible in his conscience to the former for the fulfilment of his desires, responsible to the latter by the law for the satisfaction of their rights. In him the right of property vests previous to its distribution, and this during the exercise of his duty, almost as fully and effectively as if the goods he has to apportion were his own. The legatees under a will, whether their bequests be general or specific, acquire only an anticipatory benefit until the time arrives for the complete conveyance of their legacies, either according to the terms of the will or the rule of the law. Until then the deputy of the testator holds complete possession, and none can touch an iota of the chattels without his permission. Consequently, the
ASSENT OF THE EXECUTOR
to the payment of a legacy is necessary before a legatee can touch the property left to him; and if any of those who are benefitted under a will take possession of his legacy without that assent, the executor may maintain an action of trespass against him.
This is highly requisite; for a misapprehension of his duty, or a negligence in the performance of it, might subject an executor to serious loss. For instance, according to the law of England, a man’s property is, in the first instance, after his death, to be applied in the payment of his debts in their regular order—debts due to the crown, debts of record, judgments, bonded and simple contract debts—and if the effects prove insufficient, or if they are only barely sufficient, to satisfy these, the legatees are all excluded from any benefit under the will. And should he have paid any legacy before the satisfaction of any debt, and it afterwards turn out that the funds were not ample enough to pay both, he must either recover the amount paid to the legatee, or satisfy the debt out of his own private resources.