If a legatee is to receive an estate, including residuary legateeship, on condition of paying the debts of the deceased, and he take the estate, he is liable for the whole of the debts, though they may exceed the value of the estate tenfold.
Conditions may be annexed to legacies, which in some cases become substantive parts of title, but are in others void and useless. Thus, when a legacy was bequeathed, on condition that the legatee “should change the course of life he had too long followed, and give up low company, frequenting public houses, &c.,” it was held that it was a condition that ought to be complied with, and the court directed an inquiry to ascertain whether it had been before it would direct the payment of the legacy. But when, on the contrary, a legacy was left to a married woman, on condition that she lived apart from her husband, the legacy was awarded notwithstanding the breach of the conditions, because it was deemed contrary to good morals and Christian duty. When a condition was annexed that the legatee should take, provided he did not marry without the consent of the executor, expressed in writing, and he did marry with the consent of such executor, but expressed verbally and not in writing, it was held that he was entitled to the legacy; and the consent of a co-executor, who had not acted, was not considered requisite.
A legacy was given on condition that the legatee intimated to the executor his willingness to forgive certain debts, and he filed a bill in Chancery to recover his claims, it was decided that he had forfeited the legacy. In a case where a testator authorized his executors, at any time before a certain person attained the age of twenty-six, to raise £600 by sale of stock, and apply the same towards his advancement in life, or for any purposes for his benefit, as the executors might think proper, and at the age of twenty-six he made an absolute gift of the £600 to that person, the executors declined to act, and the court refused to give any portion of it, until it could ascertain whether the legatee’s position was such that he would suffer detriment unless the whole, or a portion, were paid.
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.