If by the will a legacy be given free of duty, and by the codicil that legacy is revoked, and a larger one given by way of increase, it is equally free from duty as the original legacy. But if an annuity be left in the body of the will, free from all stamps and taxes, with a gift over, which is revoked by the codicil, and a small annuity left, without the gift over, it is held to be altogether a new legacy, and not entitled to exemption from duty.
Where a testator died in India, where his executors also lived, and where all his property was situate, it was held that a legacy remitted to a legatee in England was free from duty. When, however, part of such a testator’s property was found in England, and a legatee instituted a suit to have his legacy paid out of that portion of the assets, it was liable to the duty. Property belonging to a foreigner, though it be in this country and given to English legatees, is not liable to duty. But American, Austrian, French, and Russian stock, if the property of a person domiciled in this country, is liable to legacy duty. Yet probate duty is not payable upon property situated in a foreign country, though brought into this, and administered by an English executor.
In general it may be observed, that where an executor has inadvertently paid a legacy without deducting the duty, he can compel the legatee to refund, and in one instance, when an annuity had been paid for four years without deducting the duty, until the executor had assigned the whole of his interest, he was deemed to be only the surety of the legatee, and could compel him to return accordingly.
INTEREST ON LEGACIES.
A distinction formerly prevailed as to the quantum of interest payable on legacies charged on lands, and such as were chargeable on personal property, for it was deemed but fair that as land never produces a profit equal to the interest on money, so the interest on a legacy charged on such property, should be one per cent. lower than that charged on personalty. But the distinction is now set aside, and whether legacies are charged on realty or personal estate, the established practice is to allow only four per cent. where no other rate of interest is specified by the will. This custom prevails upon all legacies administered in England whether derived from home, colonial, or foreign property.
When interest is payable upon a legacy, can alone be learned from the will itself. Not that interest will only be paid when the will expressly states that it should be, for the greater number of cases are those in which interest has been paid from inference of the testator’s intention as derived from the construction of his expressions. But these are so various, that any attempt to specify the principles on which the construction for interest is based would be futile; a careful attention to the wording of the will generally enables any one of ordinary understanding to ascertain when he may be entitled to interest, when that effect is not plainly expressed. The ordinary rule is, that wherever a legacy is made payable out of a fund bringing interest at the death of a testator, as a mortgage or money in the funds, the legatee is entitled to the interest his share of that fund produces, until his legacy is paid; and wherever the bequest is made upon property not bringing interest, as when a sum is left to a party to be raised out of houses or land to be sold, the legatee is not entitled to any such benefit.
CHAPTER VII.
THE ADEMPTION, CUMULATION, AND ABATEMENT
OF LEGACIES.
No care is too great to give a precise expression to a testator’s will, and difficulties enough often arise after every care has been taken to avoid misconstruction, and therefore there cannot be too much care spent in endeavouring to ascertain, as well as to express, the meaning of a testament. But there are frequently other circumstances which supervene to alter, enlarge, or altogether obviate the intentions of a testator for the benefit of his relatives, without possibly any cognizance on his part. In some instances, the legacies which he intended to give are, either by his own voluntary or inadvertent act, or by the influence of circumstances, altogether taken away and lost to the parties whom he nominates legatees; and this is called the ademption of legacies. In other cases, the amounts of the legacies specified become, through the effect of other circumstances, increased, and this is called the cumulation of legacies. In others, again the amounts, instead of being increased or destroyed, are decreased; and this is called the abatement of legacies.