Another instance of unexpected contingency occurred in the case of Birch v. Wade, where the testator willed that one-third of his principal estate and effects should be left entirely at the disposal of his wife, if she should think proper, among his relations, after the death of his sisters; she died without making any disposition, and it was held a trust for her next of kin at the time of her death.
A legacy left to a married woman must be paid to her husband; and even where she was living separated from her husband, without maintenance, and the executor paid her a legacy and took her receipt for it, he was compelled, on suit from the husband, to pay it over again with interest. Nor is the rule altered in a case of divorce, a mensâ et thoro; for there the husband alone can release it. But the executor may decline to pay it to him, if it amounts to £200, unless he has made, or will make, a sufficient provision for his wife. And if a woman who is, or has been, married, becomes entitled to a legacy, the court will require a positive affidavit that it has not been in any way settled, before it will decree payment to her personally.
Money bequeathed to a charity established out of England, must be paid to the persons named by the testator to receive it.
Legacies left to a bankrupt become the property of his assignees, unless his certificate be signed, and even then, unless it has been allowed by the Lord Chancellor; and they must, therefore, under such circumstances, be paid to his assignees.
As the law now stands, all legacies are subject to the debts of the testator, unless there be sufficient assets to pay both debts and legacies; and in the event, therefore, of the estate proving insufficient for the debts, after some or all of the legacies are paid, the executor can compel the legatees to refund altogether, or in proportion to the deficiency.
Under the will of a person residing abroad, or in the colonies, legacies are payable in the currency of the country where the testator resided at the time the will was made. Nor does it affect the case that he has effects in this country as well as there, unless he shall have separated the funds by his will, and charged the legacies on his English property. When some legacies are described as sterling, and others not so, they must be paid accordingly, and in compliance with such description. So also, if a testator bequeath a legacy, either of a single sum of money, or of an annuity charged on lands which are in another country, the full amount shall be paid according to English count, and without any deductions for the expenses of remittance.
DUTY UPON LEGACIES.
The executor is responsible for the duties upon all legacies, and must pay them. He, therefore, pays every legacy specified in the will, short of the amount which he has to deduct for duty; and on its payment he is bound to take a property stamp receipt, according to the value of the legacy and the relationship of the legatee to the testator.
A bond debt forgiven by will is a legacy, and therefore liable to duty. Duty was charged upon a legacy of £50 a-year, to be laid out in bread and divided among the poor of the parish, although some of them only received about two shillings a-year each. But a residue to be divided, in which the several recipients did not receive more than £15 each, was not chargeable, though had any of the legatees been entitled to more than £20, their share would have been.
Where a legacy is directed to be paid “without deductions” or “free of expense,” the executors must pay the amount in full, and discharge the duty from some other fund. Such, also, will hold with regard to annuities as well as sole legacies. An expression, also, of “clear of all outgoings and taxes,” with respect to an annuity, will carry the same privilege.