LEGACIES--GENERAL, SPECIFIC, LAPSED, VESTED, DEMONSTRATIVE.
Legacies are gifts of the property of a deceased person to his
surviving friends or relatives, expressed in the deed or will by
which his disposable property is governed after death. They are
styled _general_ when a certain amount of property is bequeathed to a
particular person, without any certain fund being appropriated for its
payment. They are _specific_ when the particular things are named, as
well as the particular persons to whom those things are bequeathed.
Legacies _lapse_, or are lost to the party or his representatives, or
friends, when some particular condition is annexed to the bequest,
which condition has not, or cannot be, either through negligence or
impossibility, complied with. They are, on the contrary, _vested_, or
made the property _de jure_ of the party to whom they are left, when,
through his own act or without it, certain conditions, which were
predicated by the terms of the will, have been fulfilled; although the
legatee may not come into possession of his rights for years perhaps
after the death of the testator. Farther, legacies are _demonstrative_
when it is evident that, under a certain set of circumstances, certain
persons are intended to inherit certain portions of property, and those
certain circumstances arise by which the demonstrative legatees acquire
their rights. These several terms will be clearer when they are farther
explained and illustrated by examples, to which we will immediately
proceed.
GENERAL LEGACIES.
General legacies are such as are specified in a mere statement of
quantity; as, A leaves to B £500, to be paid out of his personal
estate, without specifying any particular portion of property out of
which the sum is to be paid. Nor does it matter whether it be of money
or stock; and where the testator has not the stock stated in his will,
but has the wherewithal to purchase it at his death, the executor is
bound to procure so much stock for the legatee. But if the terms of the
will be specific, as “so much stock, _standing in his name_,” and he
has no stock whatever, the legacy would share the fate of a specific
legacy, and fail. The purpose, however, to which a general legacy is
directed to be applied, will not alter its nature, however specific
the object may be. Personal annuities, given by will, are also general
legacies.
Legacies may be specific in one sense and pecuniary in another--being
specific when they are given out of a particular fund, and not out of
the estate at large; and pecuniary, as consisting only of definite sums
of money, and not amounting to the gift of the fund itself, or any
portion of it.
In the case of the _Attorney General_ v. _Parkin_, Lord Camden
recognized the distinction between a legacy of a certain sum due from
a particular person, and a legacy of such debt generally; considering
the former as a legacy of quantity, while the latter he deemed to be
specific.
SPECIFIC LEGACIES.
Specific legacies are of two kinds; the first of which includes such
chattels as are so described as to identify them from all others of any
other kind, or of the same kind, as, “I give the silver candlesticks,
left me by my late uncle, to such a person.” Here the meaning cannot be
misunderstood, and the legatee can take the particular candlesticks in
question, and none others; and, consequently, should it have happened
that the candlesticks in question have either been lost or parted with
by the testator during his life-time, or cannot be found after his
death, the person to whom the bequest is made will lose his legacy. The
second kind implies a particular chattel, as expressed in the will,
but without distinguishing it from any other chattel of the same kind.
Thus, the words, “I hereby give and bequeath a diamond ring to my
nephew, J.,” would give to J. a diamond ring, even though the testator
had not one in his possession at the time of his death, and he would
obtain his legacy in full, even though those of the general legatees
should abate of half their value in consequence of claims against the
property of their benefactor. The gift, however, of a sum of money
for the purchase of a specific legacy becomes a general legacy, and
therefore liable to abatement.
Generally speaking, there is an indisposition in the courts to construe
the terms of a will into a bequest of a specific legacy, but if the
expression clearly indicate an intention to separate any particular
thing from the general property, they will always readily allow the
specificness of the legacy; and, hence, under some circumstances, even
pecuniary legacies become specific. Thus, in the case of _Lawson_ v.
_Stitch_, a legacy was stated as consisting of, or conveying a certain
sum of money, in a bag or chest, and the whole of that money became a
specific legacy. Thus, also, in _Hinton_ v. _Pinke_, a sum of money was
left, which, at the death of the testator, was in the hands of a third
party, and was stated in the will to be so, that money was esteemed a
specific legacy. So, also, was a rent charge upon a lease; for it was
evident that only one rent charge, or one lease, could be understood.
In like manner, the bequest of a bond, and the amount of the testator’s
stock, in a particular fund, as well as a legacy out of the profits of
a farm, which the testator directed to be carried on, as was decided in
the case of _Mayott_ v. _Mayott_, the principle being fully developed,
in the action of _All Souls’ College_ against _Coddington_. Specific
legacies may also be carved out of a specific chattel, as is partly
shown in the case of _Hinton_ v. _Pinke_, just cited; as, where the
testator gives only _part_ of a debt, instead of the whole, which is
owing to him, at the time of his death, by a third party.
Yet, in order to insure the descent of a specific legacy, which is
always _ceteris paribus_, more valuable than a general one, it is
requisite that the testator should not nullify by any other expressions
in his will the terms of a specific legacy; as was decided in the case
of _Parrot_ v. _Worsfield_ where a testator, reciting that he had
£1500 in the 5 per cents., gave it to one party, and then gave all
other stock that he might be possessed of at his death to another,
and, in consequence of the manner in which it was put, the latter of
these two legacies was made subject to his debts, in preference to the
former, when, in fact, there is little doubt but that the testator
intended that both should in that respect stand on an equal footing.
Much of the same kind of mischief arose in the case of _Willox_ v.
_Rhodes_, where the testator gave a number of legacies, and added:--“I
guarantee my estates at D. for the payment of the above legacies;”
while, in an after part of his will, he gave many other legacies,
it was held, that if the estates at D. should prove insufficient to
satisfy the claims of the first class of legatees, the legacies were
not specific, and the whole of the personal estate was proportionably
liable for them. But, in the case of _Sayer_ v. _Sayer_, where the
testator devised the whole of his personal estate, at a particular
place, to his wife, the bequest was held to be as specific as if he had
enumerated every particular of the property there.
In some instances mistakes have arisen, in consequence of the
misapprehension of particular terms by the parties who use them; and
not a little care is often required to come at the precise meaning of
a bequest. Thus, in a general sense, the word _money_ only implies
either the coin of the realm, or the legal tender for it, bank notes;
or else such equivalent as the state may have given in lieu of money,
or that which is used to express the money lent to the state, and for
the security of which, the faith of the state is pledged, or the public
stocks; and, therefore, promissory notes, or bills of exchange, and
other similar _choses in action_ are not included in the meaning of the
phrase, yet, in some instances, they will be construed as meaning such.
This was shown in the case of _Read_ v. _Stewart_, where the testatrix
had bequeathed a cabinet, and all that it contained, “except money,”
and part of the contents was a promissory note of value, and of a date
payable anterior to her will, and, of course, to her death, it was held
that the terms of the bequest did not pass the note.
Yet a liberal construction is put upon the terms of a bequest, and an
evident mistake will be rectified, as in the case of _Penticost_ v.
_Ley_, where the testatrix made a bequest of £1,000, long annuities,
standing in her name, or in trust for her, while, in fact, she
had no long annuities whatever, but had really £1,000 in the 3 per
cents. reduced, it was held, that this, and this only, could be the
sum to which she alluded, and it was accordingly appropriated to
the legatee. Still, it must be a mistake respecting which there can
be no apprehension, or the legacy will fail; as in _Humphreys_ v.
_Humphreys_, where the testator was indebted on a mortgage, which he
had paid off previously to his death, out of a fund of £5,000, which
he had in the 3 per cents., neglecting to alter a provision in his
will, by which he had left the whole of his stock in these 3 per cents.
(which he specified as _being about_ £5,000), except £500, which he
left to another party, devising at the same time other specific parts
of his property to be sold, and the produce to be applied in discharge
of the mortgage; the circumstance of his having himself applied this
fund to the discharge of the mortgage was held to have redeemed the
legacy altogether, and the legatees could obtain no remedy against
those other parts of the general estate which were directed to be
applied to the redemption of this mortgage. This, however, was contrary
to the general rule of equity, and it may be presumed that it would
have been set aside on review. Lord Bathurst, it is true, held the same
principle, at least to a certain extent, in the case of _Carteret_ v.
_Carteret_, where the testator gave to one of his connections “one
thousand four hundred pounds, for which he had sold his estate that
day,”--which sum he received, and paid into his bankers, but drew
eleven hundred of it out the same day, leaving the other three hundred
there still; his lordship decided it to be a legacy of quantity, and
therefore general, and subject to the diminution occasioned by the
draft of the testator; but Lord Thurlow disallowed the distinction
set up by Lord Bathurst, and decided that a legacy of “the principal
of A.’s bond for three thousand five hundred pounds,” was a specific
legacy, although the sum was named.
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 VESTING OF LEGACIES.
A legacy is said to _vest_ when the party to whom it is bequeathed is
not able to claim it at the seasonable time for the payment of general
legacies, either through absence, or any other cause; or when it is
directed by the testator that it shall be paid at some future period,
and nothing occurs before the arrival of that period to prevent the
legatee’s right. Thus, a legacy left to be paid to a certain party a
certain number of years after the death of the testator, without the
annexation of any condition, such as, “if the legatee shall so long
live,” would vest the legacy; and if the legatee did not survive the
period named, his heirs or representatives would come into his right;
or should it be even said that the legacy is to be _payable_ to the
legatee at a certain age, it is still vested, though he should never
attain that age. But if it be said in the will that the bequest is to
be paid _when_, or _as soon as_, the legatee shall attain a certain
age, and he dies before the age specified, the legacy does not vest,
but goes to those who may be stated in the will as the parties to
receive it, in the event of the first legatee failing to survive, or
into the general distribution directed by law. The distinction was
originally instituted by the code of Justinian, and adopted by the
English courts, not so much on account of its intrinsic equity, as from
its prevalence in the spiritual courts, in order, that when the court
of chancery acquired a concurrent jurisdiction with those courts in the
adjudication of legacies, the claimant might obtain the same measure of
justice from whatever court he might apply for redress.
This rule, however, respecting the vesting of legacies applies
only to legacies of personal property transmissible to the legatee
as _personalty_; for the contrary holds, if the legacy be either
charged upon real estate, or upon personalty to be laid out in real
estate, and it would then be included under the next head, and would
lapse. The reason of this is, because in devises affecting lands
the ecclesiastical courts have no concurrent jurisdiction, and the
distinction created by the circumstances of the future, does not extend
to them. Yet, should the legacy be of personalty, and it be expressly
stated that it is to carry interest, it will vest, and be transmissible
to the legatee, or his representatives, notwithstanding that the words
of positive conveyance, “payable,” or “to be paid,” are omitted, for
the payment of interest is an adjudication of the principal.
THE LAPSING OF LEGACIES.
A legacy is said to _lapse_, or slip from, or be lost to the legatee,
where, through his own fault, or through an impossibility over which
he has no control, he fails to fulfil that condition of the will on
which he is expressly to take the bequest. Thus, if a legacy be left to
a person which is directed not to be paid unless he attains a certain
age, and he dies before that age, though the death be no fault of his
own, his representatives will be divested of all the right which they
would otherwise have acquired.
One peculiar instance of this was shown in the facts elicited in the
case of _Tulk_ v. _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. It afterwards appeared that the legatee was
really alive at the time the bequest was made to him, but he failed to
return, and, in fact, died abroad within the seven years. Lord Eldon,
accordingly, held that the legacy had lapsed, for though the legatee
was living he had not fulfilled the directions of the will, and he
thereby lost his right to the bequest.
The general rule respecting the lapsing of legacies is, that if a
legatee die before the testator, the legacy shall become a portion of
the general residuary estate, nor will a statement that the bequest
is made to the legatee, his executors, administrators or assigns, or
to him and his heirs, prevent the lapse; nor will even the expressed
desire of the testator, that the bequest shall not fail if the legatee
shall die before him, exclude the next of kin. But a slight alteration
of the terms of the will may prevent the failure, as in the case of the
death of A. before the testator, other persons are named to take; for
instance, A.’s legal representatives, or the heir under his will, or to
A., B., C., “or to their heirs,” or to A., “and failing him by decease
before me, to his heirs,” the legacy, on A.’s so dying, shall vest in
such nominees.
It is decreed by 1 Vict. c. 26, s. 29, “that in any devise or bequest
of real or personal estate, the words ‘die without born issue,’ or
‘have no issue,’ or any other words which may import either a want or
failure of issue of any person in his life-time, or at the time of his
death, or an indefinite failure of issue, shall be construed to mean a
want or failure of issue in the life-time, or at the time of the death
of such person, and not an indefinite failure of his issue, unless a
contrary intention shall appear by the will.”
We may conclude with the observation, that where a legacy is clearly
left to any particular person, the court will require very clear
evidences of the failure of the performance of conditions, before it
will allow a lapse to the loss of the representatives of the legatee;
and, that just in proportion to the clearness of the bequest, is the
danger of the lapse.
DEMONSTRATIVE LEGACIES.
It sometimes, though rarely, occurs, that the party who is to inherit a
bequest can only be ascertained by inference, instead of from the clear
declaration of the will; and the legatees so ascertained, are termed
_demonstrative_ legatees. Such are often found in distant, or unknown,
or unrecognized relatives or friends of the deceased.