Should, however, the assets prove large enough to pay all the debts, but insufficient to satisfy all the legacies, the legatees, and the claims of all the general legatees, will abate in proportion; and if he either pay, or suffer any one else to appropriate to themselves, a legacy in full, while the rest were obliged to take only a quarter of their bequests, they would have the right of compelling the executor to refund to them the several amounts which they had lost by the undue payment of one. As a protection, therefore, to the executor, his assent to a legacy is necessary—not that he can unjustly withhold that assent where the means are sufficient, or even proportionably sufficient—his assent to a legacy is necessary before that legacy will vest or be assured to the party to whom it is left. But this assent once given, is evidence that the assets are sufficient, and an admission on his part that the fund is competent to discharge the legacy; and should he afterwards refuse to pay it, on the ground that it was not so, the legatee may compel the payment out of his own private estate.
Without this assent, however, whatever may be inchoate rights of the legatee, he has no vested rights; and even in the instance of a specific legacy, though it be of a chattel real, as an estate, or of a chattel personal, as a horse or piece of furniture, in the care or custody of the legatee; and though the funds be sufficient to satisfy all the claims, the executor, unless he has given his assent, may maintain an action against the legatee for possession against his will. Nor can the legatee take possession of his bequest without the executor’s assent, even though the will of the testator should give authority for that express purpose. Reason good is there that such should be the case; for if the will of a testator could have the effect of appointing his property without the assent of his executor, he might appoint every sixpence of it to specific legatees, and defraud every one of his creditors of their claims. Notwithstanding the extent of his power, however, the executor cannot divest the legatee of his inchoate right, or anticipatory property; and should he die before the distribution of the effects, his representatives would take his share. Yet for the vesting of the legacy, or the delivery of the bequest, the assent of the executor is necessary; and what that assent consists in we will now proceed to show.
NATURE OF THE ASSENT.
The law has prescribed no particular form in which this assent shall be given, and a very slight intimation is held sufficient. Not only may the executor authorize the legatee to take possession of the bequest in direct terms, but indirect expressions, or relative acts, will have the same effect—anything, indeed, from which an intended permission can be construed. Thus, if the executor congratulate the legatee on his legacy, or if a specific legacy be left to any one, and the executor request him to keep or dispose of it, or if he in any way refer a third party to the legatee as proprietor of his legacy, or if he himself treat him, or treat with him as the proprietor. As for instance, where an executor requested the lease of an estate left under a will which he had to administer from a legatee, and accepted the lease which was granted in accordance with his request, it was held that he allowed the granter to be the proprietor of the estate which he had granted. An assent to an estate in remainder is an assent to the present estate, for a remainder can only be a continuation of an estate, and therefore a part of it. Whenever property, however, is so divided, that it has acquired two qualities, as is the case of land under a term for years, where there is the real property, and the chattel real arising out of it—the land and the rent—an assent to the legacy of one quality is no assent to the legacy of the other, and therefore, an assent to the legacy of the rent is no assent to the legacy of the land; but on the principle that the greater comprises the less, assent to the legacy of the land will carry assent to the legacy of the rent.
ABSOLUTE AND CONDITIONAL ASSENT.
The nature of absolute assent is self-evident. It is an assent given to a legacy, without reference to any contingent or dependent circumstance, and when once given cannot be retracted, and the legacy to which it pertains can be affected by nothing but the subsequent discovery of debts, which may cause an abatement of its amount. How that acts will be shown hereafter.
Conditional assent is assent with a reservation, or with an obligation upon the claim of the legatee; so that if the contingency shall occur to which the reservation shall refer, the legacy shall not vest; or if the obligation be not completed it shall lapse. In either case, the condition must be precedent to the assent, or it is no condition at all, and the executor can never afterwards impose it; or, in other words, the assent is absolute. Thus, if a testator leave a leasehold estate to one of his friends, but at the time of his death there happen to be arrearages of rent, without payment of which the property would revert to the lessor, and the executor assent to the legacy, on condition that the arrearages be paid by the legatee. Should the latter pay these arrears, he becomes entitled to the bequest; if not, the legacy would lapse, for there is no assent. This is necessary; for if the executor were to give an absolute assent to the legacy, he would be obliged either to pay the arrears out of the general estate to the loss of the other legatees, or out of his own pocket by their compulsion. If, however, the executor be imprudent enough to assent to the legacy on condition of something being done subsequent to its reception by the legatee, as, for instance, with the proviso that he shall pay the executor a certain sum annually, this in no way affects the assent, and the legatee would take whether he performed his condition or not. In the case of failure the executor could not divest him, but must seek his remedy as he might.
The peculiar position of a fund out of which a legacy is to be paid, though it may be required by the will that it should be given absolutely, may make it necessary for the executor to impose a condition, and he has a right to do so; and he may withhold the legacy if that condition be not complied with, that is, provided it be reasonable. But if he once part with the legacy, he at the same time divests himself of the power of imposing stipulations, and he will have no right afterwards to make that conditional, which by the terms of the will was made absolute.
It should be observed that the executor’s assent to a legacy has reference to the state of the fund at the time of the testator’s death, and if through circumstances any alteration should take place in the state of the fund before the payment of the legacy, he has no right to mould his conduct and direct his assent upon that alteration, but he must pass the legacy as he found it, and the legatee will have the right either to accept it with its clogs, or abandon it altogether; and whatever advantage accrues to his inchoate property after the death of the testator, and before his actual acquisition of the legacy, to that the legatee is fully entitled.
When once assent has been given to a legacy, the executor can never afterwards retract; and notwithstanding a subsequent retraction, a legatee of a specific bequest has a right to his legacy, and has a lien on the assets, and may follow them for that specific part; and should the executor refuse to pay it, he may recover it by action at law. An assent to a void legacy, however, is void; and should an executor by mistake give such assent, the legatee acquires no right thereby.