TRANSCRIBER’S NOTE
Obvious errors and omissions in punctuation have been fixed.
TYAS’ LEGAL HAND-BOOKS.
The Hand-Book
OF THE
LAW OF LEGACIES;
CONTAINING
A STATEMENT OF THE NATURE OF LEGACIES,
AND THE
ACCIDENTS TO WHICH THEY ARE SUBJECT;
TOGETHER WITH
THE RIGHTS OF LEGATEES,
AND
THE CAUSES AND MANNER OF THE ADEMPTION, CUMULATION,
AND ABATEMENT OF THEIR BEQUESTS.
“Jam progressu futura.”
LONDON:
ROBERT TYAS, 8, PATERNOSTER ROW.
AND SOLD BY
R. HASTINGS, 13, CAREY STREET, LINCOLN’S INN.
MDCCCXLI.
LONDON:
CLARKE, PRINTERS, SILVER STREET,
FALCON SQUARE.
PREFACE.
The utility of a little work of this kind is so obvious, that it needs
no other setting forth than that given in the introductory observations
with which it opens. It professes only to be a cautious guide, to make
men acquainted with their rights, and not a professional assistant to
obtain them; for it has ever been the author’s opinion, that there
would be less litigation and distrust if there were more knowledge,
and more probity if there were more intelligence. A difference rightly
explained is half settled, and a mind enlightened is a mind directed
as well as sustained; and if the few following pages should make any
of the community better informed as to their claims and position, with
respect to their deceased relatives, he feels that he will have saved
them, and those with whom they have to do, not a little trouble, and
perhaps unpleasantry; and that he has contributed to the good-will as
well as the information of his readers.
CONTENTS.
PAGE
CHAPTER I. 1
Introduction.--Legacies and Legatees 1
Legacies and Legatees 3
CHAPTER II. 9
The Assets 9
Real Assets 10
Personal Assets 15
Legal Assets of Choses in Action 21
Equitable Assets 23
Contingent and Dependent Assets 27
CHAPTER III. 35
Marshalling of the Assets 35
CHAPTER IV. 43
Legacies.--General, Specific, Lapsed, Vested,
Demonstrative 43
General Legacies 44
Specific Legacies 45
The Vesting of Legacies 52
The Lapsing of Legacies 54
Demonstrative Legacies 56
CHAPTER V. 58
Assent to Legacies 58
Assent of the Executor 58
Nature of the Assent 61
Absolute and Conditional Assent 63
CHAPTER VI. 67
Payment of Legacies 67
The Legatees 68
To whom Legacies should be paid 73
Duty upon Legacies 80
Interest on Legacies 82
CHAPTER VII. 85
The Ademption, Cumulation, and Abatement
of Legacies 85
The Ademption of Legacies 86
Cumulation of Legacies 89
Legacies in Satisfaction of Debt 90
Abatement and Refunding of Legacies 92
CHAPTER VIII. 94
Legacies to Executors, and Legatees’ Remedies
against them 94
Legatees’ Remedy against the Executor 96
Rates of Duty payable on Legacies, Annuities &c. 97
THE
LAW OF LEGACIES.
CHAPTER I.
INTRODUCTION.--LEGACIES AND LEGATEES.
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. 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 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. Consciously unable to exercise
our usual acuteness on such occasions, we submit to the guidance of
some agent who has either been appointed by the deceased, or approved
of by ourselves, for the distribution of his property; and we blindly
rely upon his judgment and principles, when, perhaps, the one is not
always sound, nor the other immaculate. The use of the faculties, with
their usual business shrewdness, which duty and interest alike requires
us to exhibit, too often looks like a cold-hearted forgetfulness of
the kindness we have experienced, and the affection which we have
enjoyed in the sense of newly acquired property, an advantage, which,
to the man of right feeling, is, at that time of all others, the least
desirable or valued. Or it may be that excessive grief so blunts the
powers, that they are indeed incompetent to their usual task; and
those whose interest it is our bounden duty to protect, even if we
disregarded our own, may be injured through an incapacity to recollect
what we know, or to make that useful which we recollect. In supplying
the omissions of memory, or the want of right knowledge, we hope this
little book will prove a useful as well as a sound and opportune guide.
LEGACIES AND LEGATEES.
A legacy is the gift of something by the written will of one who is
deceased, conveyed through the instrumentality of the individual
appointed by the testator to distribute his property after death.
To reception of property by this means the law of the land offers some
exceptions. Among these are traitors, who, through their crime, have
lost every civil right; and by a statute of Charles I., and another of
George I., persons omitting to take the oaths required, and otherwise
qualify themselves for offices, are placed under the same disability.
Those who deny the Trinity, or assert a plurality of Gods, or deny
the truth of the Christian religion, or the Divine authority of the
Scriptures, are by the 9 and 10 William III., c. 32, made incapable of
receiving a legacy. Artizans, also, who go out of the realm to teach
or follow their trades abroad, and who shall not return within six
months after due notice given to them, are by the 5 Geo. III., c. 27,
made subject to the same disqualification; and by the 25 Geo. II., c.
6, all legacies given by will or codicil to those who witness such
will or codicil, are declared void; and the sentence is confirmed by
the 1 Vic., c. 26, s. 15, whether the legacy be of real or personal
estate. Legacies to priests and chapels to perform masses for the
repose of the souls of the deceased, are void, as being appropriated
to superstitious uses, and therefore forbidden as well by Edward VI.,
c. 14, as, from being against the constitutional intention of the law;
but the professors of the Roman Catholic religion having by the 2 and 3
William IV., being placed on the same footing as other dissenters, in
respect to their schools, places for religious worship, education, and
charitable purposes, legacies to Roman Catholic schools, and for the
object of promoting the Roman Catholic religion, are held heritable.
The legacy of a husband to his wife is valid; although, in consequence
of the law considering them as one person during life, he cannot make
any covenant with her. Yet the existence of such a relation does not
abrogate his power to endow her by bequest, because the bequest cannot
take place till after his death, by which circumstance the relationship
is determined. Care, however, must be taken to express the individual
properly, and by name; as the intimation that a legacy of a husband to
his wife, without mentioning her name, will only apply to the wife he
has at the time of making the will; and in the event of her death, and
his subsequent marriage with another person, that wife will not enjoy
the advantage of the intention, but the legacy will lapse.
An infant, if alive, though yet unborn, may be a legatee; for it was
decided in the case of _Defflis_ v. _Goldschmidt_, that a bequest of
£2000 to each of the children of the testator’s sister, which were
either then born, or should thereafter be born, included all the
children born after his death; and an inquiry was directed as to the
proper sum to be set apart for the legacies of children not at the
time in existence. It was also further decided in the case of _Trower_
v. _Butts_, that a bequest to the children of the nephew of the
testatrix, which should be born during her life time, should include
the child of which the wife of the nephew was pregnant at time of her
death, although the child was not absolutely born until some months
afterwards.
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. In another instance, also, where a certain amount was left to
“each of the three children” of an individual, and it turned out that
there were four children instead of three, the court allowed the fourth
to come in also as a legatee of equal amount with the other three,
under the impression that the word _three_ was written in mistake,
instead of _four_. The bequest of an unmarried man to “his children,”
took effect, with respect to his illegitimate children, as the children
had by common repute been considered as his offspring. Such, however,
would not have been the case had any doubt as to the parties existed;
for in the case, _Earl_ v. _Wilson_, it was determined that the words
“to such child or children, if more than one, as A. may happen to be
_enciente_ of by me,” would not apply to a natural child, of which
she was at that time pregnant. There is, however, but little doubt,
that had the testator acknowledged the child which she then carried,
to be his before witnesses, it would have enjoyed the bequest. 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.
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. The words, _personal representatives_, mean executors
and administrators, unless some accompanying expression point out a
different tendency. _Next of kin_ was decided to be construed in its
legal import for some time, but the decision was overruled, and now it
means _nearest of kin_; and a bequest by a party in India, “to his
nearest surviving relations in his native country of Ireland,” was held
to apply to brothers and sisters living in Ireland or elsewhere. The
bequest of a year’s wages to each of the testator’s servants, over and
above what was due to them at his decease, was construed, in _Booth_
v. _Dean_, to apply only to those servants who were hired by the year,
and not to all the servants who might be generally employed about his
establishment.
With the exception of those constitutionally and legally distinguished
as above, and of those whose rights are invalidated by any moral slain,
or obscurity in the language of the testator, all persons who can prove
their identity with the party specified in a testators’s will, may be
legatees.