the donor, it may be satisfied by a legacy given to the donee. Suppose, then, the donation were of a bond for 1000l. and by a subsequent will a legacy of equal amount was given generally to the donee, the latter would be satisfaction of the former, subject, however, to the donee's ability to prove that no satisfaction was intended. This was determined in Jones v. Selby before stated.(a) The same principle which authorizes the application of the doctrine of satisfaction to those species of donation, equally applies to that of election; so that if the donation were of a bond, and the donor afterwards specifically bequeath it, and give by the same will a legacy to the donee, he must elect between the gift and the legacy.(b) CHAPTER II. Who may be a Legatee; and of the Descriptions of Legatees. HAVING in the first chapter treated of a species of disposition, which is neither strictly a legacy, nor a gift inter vivos, but partaking of the nature of both; we now proceed to consider legacies strictly so called, confining our attention in the present chapterFirst, To the persons capable of being legatees; and, Secondly,-To the persons who take as legatees under certain modes of description. Under the latter division it is proposed to consider See Jones v. Selby, Pre. Ch. 300. 304. et supra, p. 35. (8) See Johnson v. Smith, 1 Ves. sen. 314. SECT. IV. Legacies to "Issues," who entitled. 1. Grandchildren, &c. 2. When the issue of children only who were living at the date of the Will. 3. When restrained to children. V. Legacies to "Relations," who entitled. 1. When restrained to next of kin, as where the bequest is To relations generally ; or To near relations; or To most necessitous relations. 2. When the word relations will comprehend other relatives than next of kin; as Where the legacy is given to poor as a permanent charity; or Where the bequest is to poor or poorest relations, at the discretion of executors, &c. And the nature of such discretion; or When the intention appears upon the will to include more distant relations than next of kin. 5. When the word relations may not include all the next of kin ; asIn bequests to my nearest relations or my nearest relation. Construction of the term nearest relation. Construction of the words nearest relation, of the name, or of the name and blood of the testator; and the effect of assuming the name by statute or royal licence. 4. Whether relations by marriage are included in a bequest to relations. VI. Legacies to "Next of Kin." 1. Who entitled under the description. 2. Whether relations by marriage. 3. As to distinction when the statute of distribution, or intestacy is or is not referred to in the bequest. VII. Legacies to "Personal Representatives" or "Legal personal Representatives." XIV. Legacies to "Servants." 1. Who entitled under the description; and 2. Of parol evidence in this case. XV. Of the periods when the persons described by the terms "Family" or "Next of Kin" &c. must be in esse to take under the descriptions. 1. When at the date of the will. 2. When at the death of the testator ; and 3. When at the happening of an event subsequently to the testator's decease. XVI. When Legatees take per capita, or per stirpes, or per capita et stirpes. 1. When per capita. 2. When per stirpes; and 3. When per capita et stirpes. SECT. XVII. Effect of mistakes in the names of Legatees. 1. When error in, or omission of name will be rectified by the description of the person or the context of the Will. 2. When mistake in name corrected by parol evidence. XVIII. Effect of mistakes in the descriptions of Legatees; and the admission of parol evidence in those cases. 1. When the error in description 2. When such error is occasioned by SECT. such evidence is inadmissible. 4. When the evidence is insufficient, and the bequest void for uncertainty; and 5. When that evidence is insufficient, and the legacy established. XIX. Consequences of imperfect descriptions of, or imperfect references to, legatees apparent in Wills, and of the admission of parol evidence in these cases. 1. Where a blank is left for a christian name. 2. Where a blank is left for the whole name. 3. When only the initials of a name are written. FIRST,-Who may be a Legatee. 1. Every person is capable of being a legatee unless particularly disabled by the common law or by statutes. Some of the individuals so disabled are traitors(a) and artificers going abroad to use and teach their trades in foreign countries and not returning home after request so to do by the ambassador, &c.(b) Also persons neglecting to take the oaths prescribed by law, and to qualify themselves for offices which they accepted and exercised.(c) To whom may be added individuals twice convicted of denying the truth of the christian religion, or the divine authority of the Scriptures.(d) Legatees who are attesting witnesses to wills devising freehold estates are not entitled to receive what was so intended for them, because the statute of George the Second(e) avoids the bequests, in order to restore the competency of such witnesses to support the wills, which would otherwise be defeated by the operation of the statute of frauds. (f) That statute requires wills of freehold property to be attested and subscribed by three or more credible witnesses: a description which is not considered applicable to a person who takes an interest under the instrument which he is made to attest in the character of a witness. But the Act of George the Second has been commonly understood not to extend to wills merely disposing of personal property; an understanding which now appears to have been founded in error; for Sir William Grant, determined in the case of Lees v. Summorsgill, (g) that a legacy given to a subscribing witness to a will bequeathing personal estate only, was an interest which such person could not legally claim, since the enacting clause of the above statute of George the Second applied to witnesses not only attesting the execution of wills of freehold estates, but to wit (a) 2 Black. Com. 512. (c) 25 Char. 2. chap. 2. sect. 5. (d) 9 & 10 Will. 3. chap. 32. 29 Char. 2. chap. 3. sect. 5. (b) 5 Geo. 1. chap. 27, sect. 3. 1 Geo. 1, stat. 2. chap. 13. sect. 8. nesses attesting the execution of "any will or codicil;" terms embracing within their import testaments disposing merely of personal property. An uncertificated bankrupt may be a legatee, but the beneficial interest will belong to his assignees in trust for his creditors.(h) A legacy of personal chattels to an alien friend is good since he may retain an interest in that species of property though he cannot hold real estates.(i) How far he may take money to arise by the sale of, or charged upon real estate does not appear to be expressly decided. A bequest of monies charged upon, or arising from the sale of real estate is considered, in many points of view, a devise of land itself; and in analogy to the decisions upon the mortmain acts and the statute of frauds, it should seem that the subject of such a bequest to an alien friend would be forfeited to the king, who, upon office found, would become entitled to recover it. If therefore lands were devised to trustees upon trust to sell, and subject to certain specific charges to pay the residue to an alien, the alien might, if such a devise were good, insist upon paying off the antecedent charges, and, that done, keep the estate itself; in such a case little doubt can be entertained but that a forfeiture would take place; but if the lands were only charged, amongst others, with a specific sum to an alien friend, or the trust of monies to arise by sale of lands were to pay such a sum to the alien friend so as not to entitle him to insist upon holding the estate itself after satisfying the other chargesQuare, whether the specific sum would be forfeited to the crown? See the analogy between the case above put and that of Roper v. Radcliffe,(k) and the marginal note to that case by the author of the abridgment. A legacy of a mere personal chattel to an alien enemy will be forfeited to the king, and, as there must be an inquisition to entitle, if before the inquisition, a peace take place, it will discharge the cause of forfeiture and the alien may recover the legacy.(1) It should seem that the law would be the same in the case of a legacy to a natural born subject residing in an enemy's country and in allegiance with such enemies, for he would be considered as an alien enemy.(m) SECOND, Of the description of Legatees. SECT. I. Legacies to Legitimate children. 1. Where children living at the date of the Will are entitled in exclusion of those afterwards born. When it appears from express declaration, or a clear inference arising upon the face of a will, that a testator in giving a legacy to a class of individuals generally intended to apply the terms used by him to such persons only as answered the description at the date of the instrument, those individuals alone will be entitled, although if no such intention had been expressed or appeared in the will, every person falling within the class at the testator's death would have been included in the terms of the bequest. (h) Ex-parte Ansell, 19 Ves. 208. (i) Calvin's case, 7 Co. Rep. 17. (*) Cited in 5 Bacon, abt. title Papists, C. 7, last edition, p. 278. (1) Attorney Gen. v. Weedon, Parker's Rep. 267. (m) 3 Bos. & Pul, 114, Accordingly in Christopherson v. Naylor,(n) the bequest was "to each and every of the child and children of my brother and sisters, John, Esther, Martha, and Tamar Turnbull, which shall be living at the time of my decease, except my nephew F. F.," for whom he had otherwise provided. "But if any child or children of my said brother and sisters, or any of them [besides the said F. F. my nephew] shall happen to die in my lifetime, and leave any issue living at, or born in due time after his, her, or their decease, then the legacy or legacies intended for such child or children so dying, shall be in trust for his, her, or their issue; such issue taking only the legacy or legacies which the parent or parents would have been entitled to, if living at my decease." Martha died during the life of the testator, leaving three children, all of whom died before the testator made his will, leaving issue, who claimed in right of their parents to participate in the bequest. The validity of the demand depended upon the question, whether the circumstance of the children not having been alive at the date of the will excluded their issue from any shares of the legacies. And it was determined by Sir William Grant, M. R. that the issue were not entitled, as none but children of the brother and sisters, who were living at the date of the will, had any interest in the bequest. Those children alone were the primary legatees, and the bequest to issue was merely intended in substitution of such children, an intention which necessarily excluded the issue of children who were dead when the will was made. It is to be remarked, that the last was a case in which the testator did not stand in the relation of parent to the legatees; for when a testator is clothed with that character, it being his duty to provide for his children at his death, a court of equity presumes that he intended to do so by his testament; it will therefore give effect to the supposed intention in laying hold of any general expressions which include all children, notwithstanding it be apparent from the context that only children in existence when the will was made were within contemplation of the testator. Yet even between parent and child, if it be evident that he really forgot that he might have other children than those living at the date of his will, and has upon the face of that instrument made provision for such of them as were then in existence, and omits those to be born in future, it is impossible to supply that defect and to give them any provision, however desirous the court may be to do so.(0) In Matchwick v. Cock,(p) James Matchwick having one son and two daughters, devised all his real personal estates to trustees, to apply at their discretion the whole or part of the annual produce of the net surplus of both funds for the support of his wife, and the maintenance and education of his children until his wife's death or second marriage, in which latter event, the provision for her support was to cease, and the whole yearly produce to be applied for the maintenance and education of his children. The testator then authorized his trustees to advance a premium to apprentice his son Thomas, or to apply part of the trust funds for the advancement of either of his daughters, with a direction to convey, upon his wife's death, a house and lands (n) 1 Meriv. 320. and see 3 Ves. 611. (0) 3 Ves, 611. (n) 3 Ves, 609. |