CHAPTER IV.
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 styledgeneralwhen a certain amount of property is bequeathed to a particular person, without any certain fund being appropriated for its payment. They arespecificwhen the particular things are named, as well as the particular persons to whom those things are bequeathed. Legacieslapse, 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 propertyde jureof 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 aredemonstrativewhen 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 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, howeverspecific 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 theAttorney Generalv.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 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 lostor 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 ofLawsonv.Stitch, a legacy was stated as consisting of, or conveying a certain sum of money, in a bag or chest, andthe whole of that money became a specific legacy. Thus, also, inHintonv.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 ofMayottv.Mayott, the principle being fully developed, in the action ofAll Souls’ CollegeagainstCoddington. Specific legacies may also be carved out of a specific chattel, as is partly shown in the case ofHintonv.Pinke, just cited; as, where the testator gives onlypartof 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 alwaysceteris 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 ofParrotv.Worsfieldwhere a testator, reciting that hehad £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 ofWilloxv.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 ofSayerv.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 particularterms 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 wordmoneyonly 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 similarchoses in actionare 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 ofReadv.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 ofPenticostv.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 inHumphreysv.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 asbeing 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 presumedthat 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 ofCarteretv.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.
A legacy is said tovestwhen 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 bepayableto 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 paidwhen, oras 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 bylaw. 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 aspersonalty; 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,” areomitted, for the payment of interest is an adjudication of the principal.
A legacy is said tolapse, 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 ofTulkv.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.
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 soascertained, are termeddemonstrativelegatees. Such are often found in distant, or unknown, or unrecognized relatives or friends of the deceased.