Attention is now to be given to the payment of legacies. It is evident
that an executor cannot safely pay a legacy until he ascertains that the
personal estate of the deceased is sufficient to pay the debts, and for
this reason the law generally allows the space of a year to satisfy
himself as to the condition of the personal estate.[160] And should an
executor, acting under the impression that the condition of the assets was
such as to entitle him to pay a legacy before the end of the year, pay it
before, and if, afterwards, a deficiency arises, he is responsible for the
payment of any claim or demand against the estate. Sometimes the
exigencies of a person may require an earlier payment of a legacy, and in
this case an executor may pay such legacy, provided he gets a bond, with
two good sureties, to refund in case of any deficiency; this is the case
by statute in New York,[161] and in many other States. Even if a testator
desires a payment of a legacy before the expiration of a year, an executor
is not bound to make payment.[162] As regards the time of payment, the law
makes no difference between general or specific legacies.
The next inquiry may be as to when a legacy is to be paid, where a legatee
is to become entitled at twenty-one, or at some other age, and dies,
having a vested interest, before he attains the specified age. In this
case, it is a rule that no payment is to be made until the time arrives
when the deceased, if living, would become entitled.[163] But if interest
be given during minority, the representative of the deceased may claim the
legacy immediately.[164]
A legacy of £500 was given to the eldest son of A to be begotten, to place
him out apprentice; A had a son born after the death of the testator; and
on a bill brought by him for the legacy, it was decreed to be paid, though
it was before the time when he was fit to be placed out an
apprentice.[165] The following case brings up a reminiscence of a state of
society that is now very unfamiliar to us at the present day:
The testator by his will emancipated his slave, and devised to him two
hundred dollars, "to assist him in buying his wife." The specification of
the object of the bequest does not qualify it, nor affect the legatee's
right to it. The executors, it was decided, cannot compel him to use the
two hundred dollars in the matrimonial market, nor delay him payment until
he makes a purchase there.[166]
A testator devised as follows: "I lend to my wife the plantation whereon I
now live, and after her decease I give and bequeath the said land to my
child that my wife is now pregnant with, if a boy; and if it should be a
girl, I give the said land to my son H, upon his paying to the said child,
if a girl, one hundred pounds." The child proved to be a girl; and it was
held that the legacy of one hundred pounds was not payable until the death
of the testator's widow.[167]
If a legacy be given to A, with a bequest over if he succeed to a certain
estate, or upon condition that it shall be void in that event, the legacy
must be paid to A, notwithstanding.[168]
If a legacy be devised generally, it is regularly to carry interest from
the expiration of the first year after the death of the testator; but if
it be a specific legacy upon which interest can accrue, the interest will
be given from the death of the testator, and it is immaterial whether the
enjoyment of the principal is postponed by the testator or not.[169] Even
if there be a direction to pay a general legacy as soon as possible,
interest only begins at the end of a year.[170] But if the legatee, being
of full age, neglects to demand it at that time, he cannot have interest
but from the time of the demand, because a legacy differs from a
debt.[171]
While this was formerly the rule, it is not now in force, for it has been
held that, no matter whether the legatee demands or not, the legacy will
draw interest. It was so decided in a case in New York.[172]
The general rule is, that a legacy payable at a future day does not carry
interest before the time of payment; and the rule applies to an infant
payable at twenty-one, unless in the case of an infant having a right to
demand maintenance from the testator, or of the legacy to him being a
residue, or there are special circumstances showing clearly an intention
to give interest.[173] And if a legacy is given in lieu of dower, or is
decreed to be a satisfaction of a debt, the court always allows interest
from the death of the testator.[174]
A legacy to a child whose support and maintenance is otherwise provided
for by the bounty of the testator, like a legacy to a more distant
relative, or to a stranger, is not payable and does not draw interest
until one year after the death of the testator, where no time of payment
is prescribed by the will.[175]
An annuity bestowed by will, without mentioning any time of payment, is
considered as commencing at the death of the testator, and the first
payment as due at the expiration of one year; from which latter period
interest may be claimed in cases where it is allowed at all.[176]
The rule as to interest being reckoned on a specific legacy from the death
of the testator was strictly applied in the case of Churchill v.
Speake,[177] where a testator made a specific bequest of a mortgage for
£1,000 to his wife, and desired her to give the sum of £500 to M C, his
grandchild; "but, for the time and manner of doing it, I leave it freely
to herself, and as she shall see it best for her"; and the wife exercised
this freedom so well as to live twenty years after the testator, and never
paid the £500; and the court decreed payment of it to M C, with interest
from the testator's death.
The inquiry to whom legacies are to be paid is one of great importance to
the executor, who must be careful to pay legacies into the hands of those
who have authority to receive them. It is a general rule that, where the
legatee is an infant, and would be entitled to receive a legacy if he were
of age, the executor is not justified in paying it either to the infant,
or to the father, or any other relation of the infant, on his account,
without the sanction of a court of equity.[178] And even in the case of a
child who has attained majority, payment to the father is not good, unless
it be made by the consent of the child, or confirmed by his subsequent
ratification. It may happen that an executor has, with the most honorable
intentions, paid the legacy to the father of the infant; nevertheless, he
will be held liable to pay it over again to the legatee on his coming of
age. And although such cases have been attended with many circumstances of
hardship to the executor, yet he has been held responsible, on the policy
of obviating a practice so dangerous to the interests of infants, and so
naturally productive of domestic discord.[179]
Many of our States regulate the payment of legacies to infants by statute,
as in New York, where a legacy of $50 may be paid to the father of the
legatee, to the use and for the benefit of such minor; but, if it exceeds
$50, it must be paid to the general guardian of the infant, who will be
required to file a bond to pay it over to the infant.[180]
It was formerly the law that, if a legacy was given to a married woman, it
should be paid to the husband. So, where a legacy was given to a married
woman living separate from her husband, with no maintenance, and the
executor paid it to the wife, and took her receipt for it; yet, on a suit
instituted by the husband against the executor, he was decreed to pay it
over again, with interest.[181] It was also adjudged that, if the husband
and wife were divorced _a mensa et thoro_, and a legacy was left to her,
the husband alone could give a proper receipt for it, and consequently to
him alone was it payable.[182]
But now, by statutes in almost all of our States, a married female may
take by devise and bequest, and hold to her sole and separate use, real
and personal property, or any interest or estate therein, in the same
manner, and with the like effect, as if she were unmarried.