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

Assent may be given before the probate is obtained; for an executor’s authority arises at the moment of the testator’s death; but if he has not attained the age of twenty-one years, he is incapable, by the Act of 38 Geo. III., c. 87, of exercising the functions of his office, and his assent before that time is consequently void.

CHAPTER VI.

PAYMENT OF LEGACIES.

With respect to the time of paying legacies, it may be observed that whilst, on the one hand, the assent of an executor is necessary to the title of a legacy, the law has taken care that he shall not be hurried into the performance of his important duty, and be led into errors without due deliberation, and has provided therefore that he shall not be compelled to pay the bequests of his testator before a year has expired from the period of his death. This custom is adopted from the civil law, and it is conceived that during this time he will have opportunity of fully informing himself as to the state of the property and its competency to pay all the calls which either the will of the deceased has imposed in the shape of legacies, or which have arisen from his proceedings in the shape of debts. An executor, therefore, who after the satisfaction of all these leading calls, shall pay over the remainder of the estate, if any, to the residuary legatee, cannot plead that he has fully and rightly parted with all the property, in reply to his testator’s liability on a covenant which is only made apparent after that time and within twelve months of his decease. Against the legatees, indeed, who have obtained too much, and before the time, he has a remedy; for it was decided in the case of Livesey v. Livesey, that where an executor had by mistake made payment of an annuity before the legatee was entitled to receive it, he was entitled to retain the amount of the payments he had made out of the future payments. And if a legacy be paid in instalments, and through inadvertence the executor pay a larger amount in the first instalment than he ought to have done, he may either retain it altogether out of the next, or deduct it equally from each of the subsequent instalments.

THE LEGATEES.

If a testator leave a legacy to an individual “and to the heir of his body,” or to a female, “and to be secured to her and to the heirs of her body,” or to one “and to her issue,” they are absolute legacies, the sole and entire property of the party to whom they are left, and those parties are entitled to receive them. Such is the case also where a legacy is left to a female, “when and if she should attain the age of twenty-one, to her sole and separate use; and in case of her death, having children, her share to go her children,” and to her personally, or to any deputy or attorney, as the law phrases it, properly authorized to receive it, must the legacy be paid. But if a legacy be only generally expressed as to be given to a certain individual, and “to her heirs or children,” the legatee only takes a life interest.

Where legacies are left to each of a certain number of relatives, or to their respective child or children, and should any of them die without a child, the share reverting to the residuary legatee, the relatives so named who survived the testator will each take their share absolutely; for the law cannot contemplate so distant an event as the possibility of the legatees having no children all their lives, and therefore passes the property of the bequest to them in full, and thereby destroys any reversionary right of the residuary legatee.

When a legacy is left to an infant, or person under twenty-one years of age, payable on his attaining that age, and he die before the time, his representative, although he will inherit the property, cannot claim it until the period arrives when the party through whom he claims would have received it. But if the will states that the legacy is to carry interest, the representative can claim it immediately on the death of his principal. Should a legacy be made payable out of land, at some future time, although it should carry interest in the meantime, it was decided in Gowler v. Standerwick, that if the legatee should die before the time arrives, the fund should not be raised until that time, securing, nevertheless, a personal fund for a future or contingent legatee. When, however, it was stated by the will that certain legacies should be paid on the land, but expressed neither time nor manner in which the money should be raised, nor did it appear that the estate was a reversion, which was in fact the case, it was held that the estate should be disposed of in order to raise the legacies, and that they should be paid with interest from the time of the testator’s death, and not from the period when the estate would accrue.

Should the will express that a legatee is to take on attaining the age of twenty-one, and in the event of his dying before twenty-one, then that it is to go to another, that other person will take the legacy immediately on the death of the first-named legatee, if he should die before twenty-one, because he does not claim through the first party, but, in consequence of a direct right which became his on the death of that party. But in the case of Moore v. Godfrey, where legacies were given to three co-heiresses, to be paid to them on their respective marriages, and in case of the death of any of them before marriage, her or their share to go to the survivor or survivors, and one of the sisters did die unmarried, it was held, that the portion of the deceased did not accrue to her sisters, any more than their original shares, until the period of their marriage, according to the terms of the original devise.

Where stock is left to trustees to pay the dividends from time to time to a married woman for her separate use, the bequest is an unlimited one, and passes the capital as well as its interest, and she may appoint or direct its disposal at her death. And where a certain sum had been left to trustees, in trust, to pay the dividends to a party, until an exchange of certain lands should be made between him and another party, the capital then to be equally divided between them, and the latter died before the time for making the exchange expired, the former party obtained the whole of the legacy.