CHAPTER VIII.
If a legacy be left to the executor, and he take possession of it generally, he will hold it under his official capacity; and his union of the double character of executor and legatee makes no difference, and his legacy is subject to all the caution and consequences which are required and wait upon other legacies—the same cumulation, abatement, and ademption. He only has a right to secure himself first of the several legatees. Assent is as necessary to his legacy as to others; and it may be given either expressly or by implication; and he is subject to the same liability and conditions. But yet he is entitled to the full distinction between the character of executor and legatee; and if he enter upon an estate as the former, it does not inculpate him in liabilities until he shall have assumed them as the latter.
If a testator appoint his debtor to be his executor, the appointment formally releases and destroys the debt, unless the executor renounces the trust; and he is safe against all but creditorsof the estate, for the bequest of a debt to an executor is always considered as a specific bequest.
Should, however, this bequest be contradicted, as regards the legatees, by the express terms of the will, or by strong inference, as where the testator leaves a legacy, and directs it expressly to be paid out of the debt due to him by the executor. In like manner, also, if he leave the executor a legacy, it is evident that it is not to be cumulated by the debt also. So, where a testator bequeathed large legacies, as well as the residue of his estate, to his executors, one of whom was indebted to him to the amount of £3,000, under bond, it was held that the whole of the remainder, as it stood, should be equally divided between them; that is, he that was not indebted became a creditor, to a certain amount above him who had hitherto been a debtor to the estate.
An executor has a still further right, when he is not named as expressly an executor in trust, and there is no appointment of the residue of the estate, after all the debts and legacies are satisfied, he, in right of his office, becomes residuary legatee; but, if either, by inference, expression, or legacy, he is debarred from thatadvantage, he becomes tenant in trust for the next of kin, and among these he must divide the amount of the testator’s property.
Though an executor hold no personal property in the estate of his testator, he is responsible for the right care and custody of the property under his charge, while for whatever mischief may arise from the misapplication and injury of it before distribution, without any fault of his wilfully committed, he can shelter himself under the estate. All costs, consequently, which are incurred in following the testator’s instruction, or in the right appropriation of the estate, are to be paid out of that estate. But for all wilful negligence, or improper conduct, he is answerable to the legatees, both at common law and in equity, and is liable to pay the cost out of his own estate.
Appended is the list of duties payable upon legacies, and the amount of which the executor is entitled to deduct before he pays the amount of each legacy.