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But possibly a legatee may be ignorant of the testamentary benefit bequeathed to him; to which cause the non-performance of a condition annexed to the legacy may be imputed. It may, therefore, be necessary to consider,-

SECT. IV. The duty of executors to give notice to legatees of conditions upon which the legacies are to take effect or be devested.

1. When the subject is personal estate.

It seems that legatees must obtain information of conditions annexed to their legacies, as executors are under no obligation to give notice of them, unless by particular direction. Hence it follows, that it will not be a sufficient excuse for a breach of the conditions, for the legatees to allege and prove they had no knowledge of the terms upon which their legacies were given.

In Chauncy v. Graydon, (l) legacies of 1000l. South Sea stock were bequeathed to Peter and Cassandra Tahourdin at twenty-one, or on marriage with the consent of their father, &c. with a limitation over, upon their death before that age, or marriage without consent. They broke the condition, and alleged in excuse their ignorance of it. But Lord Hardwicke determined that circumstance to be insufficient to prevent a forfeiture; upon the principle, that "where a condition is annexed to a devise of real or personal estate, and no notice required by the will to be given, nor any person obliged to give it, the legatees must perform the condition, or cannot be entitled; and if they omit to do so, a forfeiture incurs when there is a limitation over."(m) Consequently, where no person is bound to give, the parties themselves, must take notice, as in that case; the testator not having imposed any obligation upon his executors to give it. This doctrine was assented to by Sir W. Grant in the case of Burgess v. Robinson before stated.(n) And the law is the same in dispositions of real estates; which leads us to the consideration

2. Of the necessity for giving notice of conditions annexed to devises of real property.

The following distinction prevails upon this subject, when the devisee is heir at law, and when he is a stranger, viz. that notice is necessary to be given to the heir, before a forfeiture can attach for a breach of the testamentary condition; but that no such notice is required to be given to the stranger; and upon this reasoning: The heir has a title paramount the will, i. e. by descent, and he is presumed to enter and claim in that right. As, therefore, the devise is not necessary to his title, he will be considered to know nothing of it, nor of the condition, until he receive notice. But the stranger has no title, except under the will imposing the condition. Hence he is presumed to have knowledge as well of the condition as of the devise.(0)

(m) 2 Atk. 619.

(n) Ante, p. 516.

(/) 2 Atk. 616 (o) See the following cases: Frances' case, 8 Rep. 89 b. Porter v. Fry, 1 Ventr. 199. 1 Mod. 300. 314. Sir T. Rayam. 236. Malloon v. Fitzgerald, 3 Mod. 28. Skin. 125. Whaley v. Read, Lutw. 804. 809. Burleton v. Humfrey, Ambl. 259. and Doe v. Beauclerk, 11 East, 657. Randall v. Eeley, Cart. 92. 170. is not law, and see Lord Ellenborough's comments upon it in the last case.

In Doe v. Beauclerk, referred to in the last note, Lord Ellenborough expressed his sentiments upon the propriety of the following distinction," where a party is really ignorant of the existence of the instrument, in which the condition is contained, and where he would have good title if there were no such instrument, it seems unreasonable to hold that a neglect of the terms of that condition should subject him to a loss of the estate. It would encourage the concealing of the instrument, until a breach were incurred, so to decide. And no substantial inconvenience can result from holding that the person entitled to avail himself of a breach, should take care that the condition was known to the person who was to comply with it." And in that case, the Court founded its opinion upon the broad ground that neither neglect nor refusal will subject the devisee, who is heir, to lose the estate, unless he has notice of the condition.

CHAPTER XIV.

Of the assent of Executors to, and the payment and appropriation of Legacies.

SECT. I. Of the Executor's assent.

1. The necessity and effect of it.
2.-Nature of legatee's interest prior to assent.
3.-Consequences of legatee's taking his legacy with-

out assent.

4.-When and by whom assent may be given.
5.-What will be a good assent.

A. Where the absolute interest is given to the
legatee.

B.-Where the fund is given in succession.
C.-Where a partial interest is given to an ex-
ecutor.

6.-Presumptive assent.

7.-Conditional assent.

8. The retracting of assent.

SECT. II. Of the payment of Legacies

1.-Out of what fund.

2.-Whether in sterling money or in currency.

3.-By whom the exchange is to be paid.

4.-At what time legacies to be paid.

A.-When the bequest is of a gross sum of

money.

B.-When of an annuity.

C.-Of apportionment of annuities and dividends in the nature thereof.

5.-To whom to be paid.

A.-When legatee is an infant.
B.-When a married woman.
C.-When a lunatic.

D.-When a bankrupt.

E. When to a legatee abroad, and not heard

of.

6. As to deductions and retainer under the stamp

acts.

A.-In respect of what legacies liable, and the

quantum.

B.-By whom to be paid or retained.
C. At what time payable, &c.
D.-Retainer by executor:

1. for his own benefit.

2. for the benefit of another.

7.-Retainer by executors generally by way of sett off against legatee's debt.

8.-Presumptive payment of legacies.

SECT. III. Of the appropriation of Legacies of Money or Stock.

1.-Legatee's right to appropriation.

2.-Of appropriation in pais.

3.-Of the effects of appropriation on the fund itself.

SECT. I. Of the Executor's assent to Legacies.

1. Its necessity and effect.

The law makes an executor, to the amount of the assets, responsible to every person having demands upon his testator. In order to enable the executor to administer the estate properly, it vests it absolutely in him; and as it trusts to him the due administration of the fund, according to the different natures of the claims thereon, it also prohibits persons having demands upon the estate from appropriating any parts of it, in satisfaction of their claims, without the previous consent of the executor. (a) Hence follows the necessity for a legatee to procure the executor's assent to the property bequeathed to him; for until that consent be obtained, his title is incomplete. As this requisite of consent is founded upon the duty of the executor duly to administer the assets, and the personal responsibility which he incurs upon a breach of it, it is a consequence, that his assent is only necessary in instances falling within the range of his office as executor, and not to devises of freehold estates in fee, for life, or for terms of years; (b) but whatever are personal assets to be administered, whether chattels personal or real, and whether specifically or generally bequeathed, they cannot be taken possession of without the concurrence of the executor.

It may however be a question, whether, if a person by his will forgive or release his debtor the money owing to his estate, such release or forgiveness will require the assent of the executor before it can take effect; but it seems that the executor's assent is necessary, for the debt may be wanted to pay creditors, and against them it (a) Swinb. pt. 1. sect. 6. art. 5. Co. Litt. 111. Perk. sect. 488. 570. 572. Bolles v. Nyseham, Dy. 254. b. 2 Atk. 77. (b) 15 Ves. 579. Touchst. 455. 4 C

VOL. I.

must be considered as a legacy; so that the case falls within the general rule, which requires the executor's assent previous to the vesting of legacies.(c)

With respect to government stock or annuities, it appears to have been the practice of the Bank of England, grounded upon the statute 5th William and Mary, cap. 20, by which the Bank was instituted, and upon the other Acts of Parliament which regulate the devise of property transferrable at the Bank, (by which the probates of wills are directed to be there deposited, for the purpose of having the trusts extracted,) that where stock, &c. has been specifically bequeathed, without the intervention of trustees, to permit the transfer to be made to the legatees, and not to the executor; and when trustees have been appointed, then to the trustees, with a restriction not to allow of a transfer to any other persons, except those named in the will. It seems, however, that this practice is erroneous, and that the executor having the legal right to the specific as well as to the general assets, to pay debts, &c. has the sole right to call upon the Bank to transfer the stock into his name; as no interest in it vests in the legatees prior to his assent. It also appears to be immaterial whether such property be given specifically in the strict sense of the word, or as a residue; such property being to be considered in no other view than the other general assets as to this purpose, and therefore subject to all the incidents of a testamentary disposition of personal estate. (d)

With respect to the effect of the executor's assent—

The consent creates no new title, but merely perfects that which is derived under the will; consequently, if the bequest be void, the assent of the executor is nugatory.(e) But when the devise is good, and consent is given, the title of the legatee from the testator will be complete; and although the executor may have wasted the assets, the persons affected by it can only have redress against the executor personally.

Accordingly, in Foster v. Spencer, (f) it was said, if lessee for years devise his term to another, appoint executors, and die; and the executors commit waste, and afterwards assent to the bequest, although between the executors and the devisee it has relation, and the latter is in by the devisor, yet an action of waste shall be maintained against the executors in the tenuit.

By assent the legal interest, which the executor had in the fund, ceases, (g) and the entire property, legal and equitable, becomes vested in the legatee.

2. In regard to the nature of the interest of a legatee, previously to the executor's assent.

Although, as we have seen, the assent of the executor be necessary to complete the title of the legatee; yet, before such assent, the legatee takes an inchoate right in the subject, which may be forfeited; and it is transmissible to his personal representatives, in the event of no disposition by will.(h) But

(c) Ves. sen. 1. 50. and see ante, p. 325. et seq.

(d) Bank of England v. Moffat, 3 Bro. C. C. 262. Bank of England v. Parsons, 5 Ves. 665. Bank of England v. Lunn, 15 Ves. 569.

Bransby v. Grantham, Plowd. 525.

f) Cited in Saunder's case, 5 Rep. 12. b. and see ante, p. 314. et seq. (g) Bridg. 55. (h) Off Ex. 236.

3. Suppose the legatee to take his legacy without the consent of the executor, what will be the consequences?

He will be liable to an action of trespass or trover by the executor.(i) And it has been alleged and admitted, that if the devisee of a term for years enter upon the lands without the executor's permission, he will be considered a disseisor.(k)

Besides, if, before the executor have proved the will, or undertaken the trusts of it,(l) a legatee intermeddle with the estate, by taking possession of the property bequeathed to him, without the executor's leave, he will not only be liable to the action of the executor after probate, but also in the mean time to the suits of the testator's creditors, as an executor de son tort. But if, before any action be commenced, he pay over to the lawful executor the whole of the assets he received, that act will purge the original tort, and entitle him to the plea of plene administravit. This doctrine seems to have been settled by the cases referred to in note.(m)

We shall now consider

4. By whom assent may be given.

Where an executor is appointed, he may assent to a legacy before he proves the will.(n) And in instances where there are two or more executors, the assent of any one of them is sufficient.(o) So also, if one of the executors be a legatee, his single assent to his own legacy will vest the complete title in himself; (p) and, according to Perkins, even before probate or administration.(q) Again, if the subject be entire, and be given to all the executors, the assent of one of them to his own proportion will be sufficient.(r) But if an executor-legatee renounce probate, by which act he places himself in the same situation as if he had never been appointed to that office, his assent to his own legacy will be ineffectual,(s) and if he take it without the permission of the lawful administrator, he will incur the same liabilities as any other legatee so acting, and which we have before mentioned.

When the executor is an infant, the Ecclesiastical Courts grant administration to a person durante minore ætate of the infant; but the law in such case is now very different from what it formerly was. By the Civil law followed by those courts and adopted by our own,(t) infancy determined at the age of seventeen; at which time probate of the will was granted to the executor, who, from that period, was competent to discharge the duties of the office. The powers of the administrator during infancy were confined to the performance of mere acts of necessity. None were permitted which might be in the least degree prejudicial to the infant. He might assent to a legacy; but if there was a deficiency of assets, such assent would have been void.(u) In like manner, after the executor attained his age of seventeen, he was at liberty to assent to a legacy; but as he still continued by the law of this country (i) Off. Ex. 27. (1) Read's case. 5 Rep. 34. (m) Padget v. Priest, 2 Term. Rep. 97. Curtis v. Vernon, 3 T. R. 587. Mountford v. Gibson, 4 East, 441. 452.

(k) Owen, 76.

(0) Off. Ex. 223. 3 Atk. 510.

(n) Off. Ex. 49. Godolp. Orph. Leg. 144. Dyer, 372. 2 Freem. 23. (h) 1 Roll. Abr. 618. (q) Sect. 572. (s) Broker v. Charter, Cro. Eliz. 92. (u) 1 Vern. 328.

(r) 1 Roll. Abr. 618.

Piggot's case, 5 Rep. 29. a. Cro. Eliz. 602. S. C.

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