Anonymous

“ 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. ”

“ 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. ”

“ Personal assets are either moveables not attached to the land or their produce, and derive their appellation from being either attached to the person of the owner, or from being capable of being moved about with him. They are either animate as living creatures, or inanimate, as vegetables, and include all the vast variety of property which necessity or luxury has called into existence. Properly speaking they are not assets until converted into money for the payment of debts or legacies, though they may certainly constitute the subject of specific legacies. ”

“ Thus, the principle appears to be evolved, that a legacy, in order to be specific, and saved from any general abatement suffered by other legacies, must be stated precisely as a certain thing or fund, or a particular portion of a certain thing or fund, so that it may be whole in itself, though possibly a part, but a plainly indicated part, of something particularly described in the will. ”

“ Cumulation, like ademption, very often depends upon the intention of the testator, for it may be his desire to increase a legacy, or he may, through inadvertence, state it twice over. For instance, where a specific thing, as an estate, a horse, or a house, is stated twice over, there is clearly no cumulation. ”

“ As it is of very little use for a man to find himself legatee of an estate, out of which there is nothing to pay his bequest, so also is it an equal evil if notwithstanding the existence of property to constitute an estate the assets, or the produce of that property be either uncollected or wasted, so that the legatees derive no benefit from them. ”

“ A devise of the real estate, therefore, subject to the payment of debts, will not exempt the personal estate, at least only in appearance; for if even the testator direct the real estate to be sold to pay the debts, the personal estate will, by the rule of law, be taken to exonerate the rule, unless the whole of the personal estate be left in specific legacies. It is indeed directed, by the decisions in several cases, to be thus applied, even though the personal debt should be secured by mortgage, and whether or not there be a bond or covenant for repayment. ”

“ The principle of identity appears to be the governing rule; for as the law does not allow the other legatees to be defrauded by a sum being paid to a party under a will, which had been previously paid by the act of the testator himself, so it must have clear evidence that the testator intended the gift to supersede the legacy, before it will suffer the legatee to be deprived of his right, simply because he appears to have enjoyed more favour at the hands of the testator than was at first supposed. ”

“ The inanimate chattels, which constitute personalty, are furniture, merchandize, money, (including stock in the funds, shares in public companies, and property of similar kind) pictures, clothing and jewels, and, in fact, every thing that can be moved from place to place. The presentation to a living, if the living be occupied at the time of the testator’s death, is, as has been stated, property of a real nature, and of course goes to the heir; but if it be open or unoccupied, it forms a personal chattel, and becomes assets in the hands of the executor. ”

“ A mistake in the Christian name of a legatee will not invalidate a bequest, when the individual who is intended can be ascertained; as where an individual left a legacy to the son of another, although he gave a wrong name, yet no doubt of the identity of the party intended existed. ”

“ Where a testator dies possessed of both copyhold and freehold property, and he charges all his real estate with the payment of his debts, both species of property will be equally subject to the impost, if he shall have surrendered the copyhold to the use of his will, but if not, the freehold must be exhausted before the copyhold can be applied. ”

“ If a legacy be left to the executor, and he take possession of it generally, he will hold it under his official capacity; and his union of the double character of executor and legatee makes no difference, and his legacy is subject to all the caution and consequences which are required and wait upon other legacies—the same cumulation, abatement, and ademption. He only has a right to secure himself first of the several legatees. Assent is as necessary to his legacy as to others ”

“ An assent to an estate in remainder is an assent to the present estate, for a remainder can only be a continuation of an estate, and therefore a part of it. Whenever property, however, is so divided, that it has acquired two qualities, as is the case of land under a term for years, where there is the real property, and the chattel real arising out of it—the land and the rent—an assent to the legacy of one quality is no assent to the legacy of the other, and therefore, an assent to the legacy of [Pg 63] the rent is no assent to the legacy of the land ”

“ So also, on that principle of personalty which the law invariably recognises, and that distinction which it invariably observes between the rights and actions of individuals, and the attachment and nature of property, the executor of a testator who has been joined in any action for the recovery of property, cannot take his place in the action and carry it on, however indolent or negligent the survivor in the action may be in endeavouring to bring it to a fortunate conclusion ”

“ When it is known that the gross sum upon which the several rates of legacy-duty are paid in this country amounts to more than £40,000,000 per annum, and that, during the last thirty years, more than £1,000,000,000 of money have been consigned from the hands of those who held it to those of their friends and successors, some notion will be obtained of the immense number of individuals who are intimately concerned in the subject of this little treatise. ”

“ Great-grandchildren may inherit as grandchildren, unless a decidedly contrary intention appear in the will; and in several cases it has been decided, that the term relations, or family, in a will, means next of kin. A pecuniary legacy to the heir of a testator is construed to imply the heir-at-law, and not the next of kin, unless the sense of the passage in the will was influenced by the context to mean something else. ”

“ 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. ”

“ 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 [Pg 83] 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. ”

“ 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. ”

“ The ordinary rule is, that wherever a legacy is made [Pg 84] 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. ”

“ 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. ”

“ Though an executor hold no personal property in the estate of his testator, he is responsible for the right care and custody of the property under his charge, while for whatever mischief may arise from the misapplication and injury of it before distribution, without any fault of his wilfully committed, he can shelter himself under the estate. ”

“ Chattels real, on the other hand, are converted into personalty by the redemption of a mortgaged estate. Had the mortgage which the testator held become foreclosed through the negligence or inability of the mortgagor, the property would have continued real as it was at the time of his death, but by the payment of the debt, the estate again becomes money, and consequently a personal asset to meet the legacies, or any other claims upon the testator’s estate. ”

“ The solemn fact by which the laws respecting legacies are brought into operation, is of all things most calculated to dim the perception, and to blind the judgment. Nor is the heart less ready to mislead at such [Pg 2] times than the intellect to fail; for in the distress arising from the loss of some dear friend or near relative, we are apt,—at least those are who are not callously selfish or morally debased—to think more of the bereavement we have sustained than of the interests and duties which the circumstance has called into action. ”

“ Where children are stated, legitimate children are supposed to be intended; unless it is impossible, through the celibacy of the testator, that he could have any legitimate children. But in the case of a female, where she had children of both kinds, and the bequest was stated to be to the children of R. M., deceased, and she left two, one legitimate, and the other otherwise, but reputed and allowed to be her child, and known to be so by the testator, the illegitimate child took its legacy with the other. ”

“ But if the jointure of interest be severed by one of the parties disposing of his share to another, that other person becomes, with the previous owner or owners, a tenant in common, instead of a joint tenant; and the principal of survivorship does not hold, but the chattel, or the portion of it which belonged to the testator, whatever it may be, falls to the executor, and becomes assets. Thus, money left to two parties to be divided between them, occasions a tenancy in common, because it can be divided without injury to either ”

“ According to the usual legal phraseology, the difference between legal and equitable assets is this; “legal assets are such as constitute the fund for the payment of debts, according to their legal priority; whereas, equitable assets [Pg 24] are those which can be reached only by the aid of a court of equity, and are subject to distribution on equitable principles, according to which, as equity favours equality, they are to be divided pari passu among all the creditors.” ”

“ 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. ”

“ An estate pur autre vie in incorporeal hereditaments—as a rent, for instance, granted by one person to another, during the life of a third party, and the grantor of which dies during the life-time of the person who holds the property—goes to the executor. ”

“ 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. ”