Legacy (law)

“ 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. ”

“ 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. ”

“ The peculiar position of a fund out of which a legacy is to be paid, though it may be required by the will that it should be given absolutely, may make it necessary for the executor to impose a condition, and he has a right to do so ”

“ Ademption, therefore, may always be resisted by evidence.
But a legacy is evidently adeemed when there is a decided impossibility of paying it; as when the whole of the testator’s assets have been swallowed up by his debts, which always [Pg 88] precede legacies in their right. When the object itself is lost which is made the subject of a legacy, the latter is of course adeemed, as when a man leaves a particular estate as a specific legacy without stating its value, and he disposes of that estate before his death. ”

“ A person not being an heir at the time of the execution of the will, but becoming one previous to the death of the testator, cannot take the legacy left to him by such will; but a person being an heir at the time of the execution, and becoming excluded previously to the testator's death, can take the legacy left to him by such will. ”

“ 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. ”

“ 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. ”

“ Legacies cannot be made to a larger amount than one-third of the testator's estate without the consent of the heirs.
3. A legacy cannot be left to one of the heirs without the consent of the rest.
4. There is this difference between the property which is the subject of inheritance and that which is the subject of legacy. The former becomes the property of the heir by the mere operation of law; the other does not become the property of the legatee until his consent shall have been obtained either expressly or impliedly. ”

“ If one dies, his share goes to his legal representatives. Hence the words 'to be divided equally between them' added to such a legacy only expresses what the law would imply without them. They do not alter the character of the legacy: they are only descriptive of it. At the common law, they would have the effect of making it a tenancy in common; but they have no such effect in the civil law. The legacy, if it takes effect in respect of both legatees, will be divisible equally between them in any event. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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 ”

“ The nature of absolute assent is self-evident. It is an assent given to a legacy, without reference to any contingent or dependent circumstance, and when once given cannot be retracted, and the legacy to which it pertains can be affected by nothing but the subsequent discovery of debts, which may cause an abatement of its amount. ”

“ 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. ”

“ Houlditch, in which it appeared that the testator left a legacy to a person, concerning whom there was every probability that he was not alive, but yet no certainty could be obtained. In order, however, to insure the identity of the party, the bequest had a condition annexed to it, that the legatee should return to England, and personally claim of the executrix, or within the church porch of the parish, within seven years, otherwise the legacy was to lapse, and fall into the general residue. ”

“ If a man bequeath property to one person, and subsequently make a bequest of the same property to another individual, the first bequest is annulled; so also if he sell or give the legacy to any other individual; even though it may have reverted to his possession before his death, as these acts amount to a retractation of the legacy. ”

“ 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. ”

“ If one individual, as you suggest, through the effect of cunning and skill combined with inheritances, should obtain a legal title to the whole globe, it would be his to do what he pleased with as absolutely as if it were a garden patch, according to our law of property. ”

“ The question of the succession is settled by the Constitution Act, and no alteration is possible in justice, that does not fully reserve the rights of all living beings. I am first in the order of succession, and no law of man can take it from me excepting with my full consent. ”

“ But the warning can never be too often repeated, that the grand source of mistake in questions of jurisprudence is the impression that those reasons which actuate us at the present moment, in the maintenance of an existing institution, have necessarily anything in common with the sentiment in which the institution originated. It is certain that, in the old Roman Law of Inheritance, the notion of a will or testament is inextricably mixed up, I might almost say confounded, with the theory of a man's posthumous existence in the person of his heir. ”

“ The founders of our English monarchy might perhaps, if they had thought proper, have made it an elective monarchy: but they rather chose, and upon good reason, to establish originally a succession by inheritance. This has been acquiesced in by general consent; and ripened by degrees into common law: the very same title that every private man has to his own estate. Lands are not naturally descendible any more than thrones: but the law has thought proper, for the benefit and peace of the public, to establish hereditary succession in one as well as the other. ”

“ When the heir of the crown, at the decease of the king, is under age, the council of state shall issue summons to the representatives to meet. The estates of the realm shall have the right, without regard to the will of a deceased king concerning the administration, to appoint one or several guardians, to rule in the king's name, according to this fundamental law, till the king becomes of age. ”

“ The visible wearer of the crown is merely the living representative and agent for the time being of this invisible and undying persona ficta, in whom by our law the powers and prerogatives of the government of this realm are vested. When the King in his natural person dies, the property real and personal which he owns in right of his crown and as trustee for the state, and the debts and liabilities which in such right and capacity have been incurred by him, pass to his successors in office, and not to his heirs, executors, or administrators. ”

“ The cases of succession will be a relapse of certain goods used by the member of a community to that community and a consequent rearrangement of rights of usage. The law of succession will again be constructed on a personal basis, but this basis will be supplied not by the single individual whose death has had to be recorded but by some community or union to which this individual belonged. (3) The aggregate of goods and claims constituting what is commonly called an inheritance may be considered as a unit having an existence and an object of its own. ”

“ Limitations In Respect Of Succession Outside The Direct Line Of Descent.
The right of succession limited to the great-grandchild of the common ancestor. The Gortyn law quoted above in the previous section goes on:—
v. “If (a man or woman die and) they have no children, the deceased's brothers and brother's children or grandchildren shall have the property. If there are none of these, the deceased's sisters, their children or grandchildren. If there are none of these, to whom it descends of whatever grade they be, they shall inherit the property.” ”

“ The principle of inheritance, the backbone of the whole property system, at the first challenge of serious criticism abandoned all ethical defense and shriveled into a mere convention established by law, and as rightfully to be disestablished by it in the name of anything fairer. ”

“ The heir has the advantage of sustaining his ancestor's and the right is acquired.
LECTURE X. — SUCCESSIONS INTER VIVOS
I now reach the most difficult and obscure part of the subject. It remains to be discovered whether the fiction of identity was extended to others besides the heir and executor. And if we find, as we do, that it went but little farther in express terms, the question will still arise whether the mode of thought and the conceptions made possible by the doctrine of inheritance have not silently modified the law as to dealings between the living. ”

“ Myself, I consider the will of the dead (though I am afraid what I say will not please the lawyers) of higher authority than the law, especially when the interest of one's native country is concerned. Ought I, who made them a present of eleven hundred thousand sesterces [79] out of my own patrimony, to withhold a benefaction of little more than a third part of that sum out of an estate which has come quite by a chance into my hands? You, who like a true patriot have the same affection for this our common country, will agree with me in opinion, I feel sure. ”