ASSENT TO LEGACIES.
It is the peculiar attribute of the office of an executor, that he
stands as the medium of communication between the dead and the living.
Responsible in his conscience to the former for the fulfilment of his
desires, responsible to the latter by the law for the satisfaction
of their rights. In him the right of property vests previous to its
distribution, and this during the exercise of his duty, almost as fully
and effectively as if the goods he has to apportion were his own. The
legatees under a will, whether their bequests be general or specific,
acquire only an anticipatory benefit until the time arrives for the
complete conveyance of their legacies, either according to the terms of
the will or the rule of the law. Until then the deputy of the testator
holds complete possession, and none can touch an iota of the chattels
without his permission. Consequently, the
ASSENT OF THE EXECUTOR
to the payment of a legacy is necessary before a legatee can touch the
property left to him; and if any of those who are benefitted under a
will take possession of his legacy without that assent, the executor
may maintain an action of trespass against him.
This is highly requisite; for a misapprehension of his duty, or a
negligence in the performance of it, might subject an executor to
serious loss. For instance, according to the law of England, a man’s
property is, in the first instance, after his death, to be applied
in the payment of his debts in their regular order--debts due to
the crown, debts of record, judgments, bonded and simple contract
debts--and if the effects prove insufficient, or if they are only
barely sufficient, to satisfy these, the legatees are all excluded
from any benefit under the will. And should he have paid any legacy
before the satisfaction of any debt, and it afterwards turn out that
the funds were not ample enough to pay both, he must either recover the
amount paid to the legatee, or satisfy the debt out of his own private
resources.
Should, however, the assets prove large enough to pay all the debts,
but insufficient to satisfy all the legacies, the legatees, and the
claims of all the general legatees, will abate in proportion; and if
he either pay, or suffer any one else to appropriate to themselves, a
legacy in full, while the rest were obliged to take only a quarter of
their bequests, they would have the right of compelling the executor
to refund to them the several amounts which they had lost by the undue
payment of one. As a protection, therefore, to the executor, his assent
to a legacy is necessary--not that he can unjustly withhold that assent
where the means are sufficient, or even proportionably sufficient--his
assent to a legacy is necessary before that legacy will vest or be
assured to the party to whom it is left. But this assent once given,
is evidence that the assets are sufficient, and an admission on his
part that the fund is competent to discharge the legacy; and should
he afterwards refuse to pay it, on the ground that it was not so, the
legatee may compel the payment out of his own private estate.
Without this assent, however, whatever may be inchoate rights of
the legatee, he has no vested rights; and even in the instance of a
specific legacy, though it be of a chattel real, as an estate, or of
a chattel personal, as a horse or piece of furniture, in the care or
custody of the legatee; and though the funds be sufficient to satisfy
all the claims, the executor, unless he has given his assent, may
maintain an action against the legatee for possession against his
will. Nor can the legatee take possession of his bequest without the
executor’s assent, even though the will of the testator should give
authority for that express purpose. Reason good is there that such
should be the case; for if the will of a testator could have the effect
of appointing his property without the assent of his executor, he
might appoint every sixpence of it to specific legatees, and defraud
every one of his creditors of their claims. Notwithstanding the extent
of his power, however, the executor cannot divest the legatee of his
inchoate right, or anticipatory property; and should he die before the
distribution of the effects, his representatives would take his share.
Yet for the vesting of the legacy, or the delivery of the bequest, the
assent of the executor is necessary; and what that assent consists in
we will now proceed to show.
NATURE OF THE ASSENT.
The law has prescribed no particular form in which this assent shall be
given, and a very slight intimation is held sufficient. Not only may
the executor authorize the legatee to take possession of the bequest
in direct terms, but indirect expressions, or relative acts, will have
the same effect--anything, indeed, from which an intended permission
can be construed. Thus, if the executor congratulate the legatee on his
legacy, or if a specific legacy be left to any one, and the executor
request him to keep or dispose of it, or if he in any way refer a third
party to the legatee as proprietor of his legacy, or if he himself
treat him, or treat with him as the proprietor. As for instance, where
an executor requested the lease of an estate left under a will which
he had to administer from a legatee, and accepted the lease which was
granted in accordance with his request, it was held that he allowed the
granter to be the proprietor of the estate which he had granted. 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 the rent is no assent to the legacy of the land; but on the
principle that the greater comprises the less, assent to the legacy of
the land will carry assent to the legacy of the rent.
ABSOLUTE AND CONDITIONAL ASSENT.
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. How
that acts will be shown hereafter.
_Conditional_ assent is assent with a reservation, or with an
obligation upon the claim of the legatee; so that if the contingency
shall occur to which the reservation shall refer, the legacy shall
not vest; or if the obligation be not completed it shall lapse. In
either case, the condition must be precedent to the assent, or it is
no condition at all, and the executor can never afterwards impose it;
or, in other words, the assent is absolute. Thus, if a testator leave
a leasehold estate to one of his friends, but at the time of his death
there happen to be arrearages of rent, without payment of which the
property would revert to the lessor, and the executor assent to the
legacy, on condition that the arrearages be paid by the legatee. Should
the latter pay these arrears, he becomes entitled to the bequest; if
not, the legacy would lapse, for there is no assent. This is necessary;
for if the executor were to give an absolute assent to the legacy, he
would be obliged either to pay the arrears out of the general estate
to the loss of the other legatees, or out of his own pocket by their
compulsion. If, however, the executor be imprudent enough to assent
to the legacy on condition of something being done subsequent to its
reception by the legatee, as, for instance, with the proviso that he
shall pay the executor a certain sum annually, this in no way affects
the assent, and the legatee would take whether he performed his
condition or not. In the case of failure the executor could not divest
him, but must seek his remedy as he might.
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; and he may withhold the legacy
if that condition be not complied with, that is, provided it be
reasonable. But if he once part with the legacy, he at the same time
divests himself of the power of imposing stipulations, and he will have
no right afterwards to make that conditional, which by the terms of the
will was made absolute.
It should be observed that the executor’s assent to a legacy has
reference to the state of the fund at the time of the testator’s death,
and if through circumstances any alteration should take place in the
state of the fund before the payment of the legacy, he has no right
to mould his conduct and direct his assent upon that alteration, but
he must pass the legacy as he found it, and the legatee will have the
right either to accept it with its clogs, or abandon it altogether; and
whatever advantage accrues to his inchoate property after the death of
the testator, and before his actual acquisition of the legacy, to that
the legatee is fully entitled.
When once assent has been given to a legacy, the executor can never
afterwards retract; and notwithstanding a subsequent retraction, a
legatee of a _specific_ bequest has a right to his legacy, and has a
lien on the assets, and may follow them for that specific part; and
should the executor refuse to pay it, he may recover it by action
at law. An assent to a void legacy, however, is void; and should an
executor by mistake give such assent, the legatee acquires no right
thereby.
Assent may be given before the probate is obtained; for an executor’s
authority arises at the moment of the testator’s death; but if he has
not attained the age of twenty-one years, he is incapable, by the Act
of 38 Geo. III., c. 87, of exercising the functions of his office, and
his assent before that time is consequently void.