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

Chattels may also accrue to an executor by remainder or increase, which never came into the testator’s personal possession, as if a lease be granted to a person for life, with remainder to his executors for a certain period, the remainder will be assets in their hands. Likewise where a lease is bequeathed by will to a person for life, and on his death to another, and that other dies before the first, although he never had any personal right in it, yet it will devolve to his executors, and be assets. So, also, a remainder in a term for years, though it never rested in the testator’s possession, and, though it continue a remainder, shall go to the executor and be converted for what it will obtain. Such, also, is the case with the young of cattle or the wool of sheep, produced after the testator’s death, as also the profits on lands devised over and above the rent, if he enter upon them, and the testator has been a lessee for years. Such, also, is the property in a trade in which the deceased has been a partner, and in the articles of partnership of which a covenant has been made, that his survivors should take his share. Or a testator may direct his executors to carry on his trade, appointing either the whole or a portion of his assets for its conduct, and then the proceeds will form assets.

An executor may also come into the possession of assets as a representative assignee, for if the testator shall have died an assignee, his executor will take his place, and use the assets which he derives, belonging to the testator, for the purposes of his will. So if a legacy is bequeathed to a person and his assigns, and that person die before its receipt, his executors will be entitled to take it as his natural assignee. Such is the case also if a person be bound to abide by the award of two arbitrators, and they award that he shall pay to another person, or his assigns, a certain sum of money before a day mentioned for that purpose, and that other person die before the day, his executor or assignee is entitled to the money. This principle however does not hold where any specific assignee is appointed, for then that assignee, and not the executor of the party named, will take; but where no specific assignee is named, the executor becomes the assignee.

Limitation also often becomes a source whence an executor derives assets. Thus in the case of Pinbury v. Elkin, where a testator directed that in case his wife should die without issue by him, his brother after her decease, should have eighty pounds; and, after testator’s death, the brother died in the life time of the widow, and she afterwards died without leaving issue, it was held that the possibility devolved to the executors of the brother, although he died before the contingency happened, and the legacy went accordingly with interest from the widow’s death. It was also held in the case of Chamey v. Graydon, that where legacies were bequeathed to children, to be transferred to them at their respective ages of twenty-one years, or days of marriage, and that any of them should die, or marry without consent, his or her share should go to others at their age of twenty-one years, Lord Chancellor Hardwick decreed that a share accruing by the forfeiture of a child’s marrying without consent vested in another child who attained twenty-one, but died before such forfeiture, so as to entitle the personal representatives of such deceased child to an equal share with other deceased children.

Where a person who has a legacy bequeathed to him out of a personal estate, and which legacy is to be paid when he is of the age of twenty-one years, and he dies before that time, his executors are entitled to the legacy at the moment of his death, if it is intended to carry interest, but if it is not to carry interest, then on the day on which he would have been twenty-one. But if the legacy is to be paid to the person to whom it is bequeathed at his age of twenty-one, or if he shall attain the age of twenty-one, and he die before that time the legacy will lapse. But if the interest is given before the time of payment, that is held to vest the legacy; and his executors would consequently be entitled to the amount as assets.

With respect to the interest arising out of land, however, the rules are totally different; for whatever the nature of the legacies to which the land is to be appropriated, whether for a child or a stranger, and with, or without interest, the charges on land, payable on a future day, are not to be raised where the party dies, before the day of payment, except where the time of payment is postponed on account of the fund and not of the person. In the case of Watkins v. Cheek, where a legacy was charged upon real estate, to vest immediately on the testator’s death; and to be paid to the legatee on attaining twenty-one, the interest being applied in the mean time for maintenance, and the legatee died before attaining that age; it was held that the express direction, that the legacy should vest on the death of the testator prevented its sinking; and the representative of the legatee was consequently entitled to the legacy. Where lands are devised for the payment of portions, and any of the children entitled die before the lands are sold, the representatives of that child will be entitled to the money. In the case where a legacy is charged both upon the real and personal estate, and the executor claims out of the latter, he will succeed according to the rule of the spiritual court, where the claim is determinable, though the infant legatee should die before the time of payment, but the legacy will sink as far as it is charged upon the land.

Election is also a means by which an executor may claim, as in the instance where a testator was entitled to take his choice out of several chattels, and he has failed to choose; but if nothing passes to the grantee before his election, it should be made in his life time. Should the election determine the manner or degree in which the thing shall be taken, the executor may take it as well as the grantee, for then there is an immediate interest; as, for instance, if a lease be granted to a person for ten or twenty years, as he shall choose, the executor may elect.

We have thus at some little length endeavoured to make it as clear as possible what are the sources from whence the assets of a testator are to be derived. We will now proceed to see how they are to be disposed of when obtained, and ascertain what is technically called, the “Marshalling of the assets.”

CHAPTER III.

MARSHALLING OF THE ASSETS.

It was enacted by the 47 Geo. III., c. 74, that the property of any trader who died possessed of, or entitled to, any real estate or interest in real property which would be assets for the payment of any debts due on specialty, in which the heir was bound, should be equally applicable through the administration of a court of equity, for all the just debts of such trader, whether debts due on simple contract, or otherwise; thus remedying one of the most unjust mischiefs which ever disgraced the jurisprudence of any country. For, before, a man would die possessed of immense landed estates, and owe immense sums as debts upon simple contract, one hundreth part of which, perhaps, would scarcely be liquidated before the day of doom, in consequence of his leaving but a small personal property to pay them, while his real property could not be touched for the purpose.