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gage beyond the time of receiving such cute his claim, will be no extinguishproceeds. Matter of Babcock, 2 Con- ment of it. Harris v. Henderson, 7 noly 82. See also, as to the necessity Heisk. 315, overruling Smith 0. Watfor presentment of such claims, Es

kins, ubi supra.

If the executor dies tate of Hildebrandt, 92 Cal. 433 ; Cal- without having asserted his claim, ifornia (Code C. P. & 1493) ; Green v. it will be presumed to have been Russell, 132 Mass. 536.

paid. Ellwood v. Northrup, 106 N. Y. He cannot retain his own debt as 172. against preferred claims of a higher As the executor can bring no suit class, Dolman v. Clark, 1 McCart. 56 ; against himself, the Statute of Limita. and the validity of his claim, as well as tions will not run in favor of the estate the legality of his action in retaining against his claim between the testator's the amount of his debt, are subject to death and the settlement of the executhe approval of the Probate Court. tor's accounts. Matter of Powers, 124 Kinnan v. Wight, 12 Stew. (N. J.) 501. N. Y. 361 ; Matter of Macomber, 31 And his claim must take its pro rata, N. Y. S. R. 962. share with other claims of equal So far as the right of retainer exists degree. Ex parte Meason, 5 Binn. at all, it applies to joint debts, due to 167 ; Lenoir v. Winn, 4 Desaus. 65 ; the executor with others, as well as to Matter of Gray, 3 Dem. 208; Berry v. those due to him alone, Hosack . Graddy, 1 Met. (Ky.) 553; Smith c. Rogers, 6 Paige 415; and to a debt due Bryant, 60 Ala. 235. See, however, him in a representative capacity, Green Page v. Patton, 5 Pet. 304 (Va.).

v. Thompson, 84 Va. 376; or due to a At common law the receipt of assets wife from her deceased husband. Perapplicable to the debt of the personal sonette v. Personette, 8 Stew. (N. J.) representative operated as an extin- 472. So, notwithstanding the Statute of guishment of the debt, Glenn v. Glenn, Frauds, to a verbal promise made by 41 Ala. 571 ; Chaffin v. Hanes, 4 Dev. the deceased to the administrator, 103 ; Smith o. Watkins, 8 Humph. 331 ; Berry v. Graddy, 1 Met. (Ky.) 553; or although the debt was due him as execu- a debt barred by the Statute of Limitator of another. Thomas v. Chamber- tions. Harwood v. Harper, 54 Ala. lain, 39 O. St. 112. But such presump- 659 ; Payne v. Pusey, 8 Bush. 504. tion will not arise in favor of payment But he cannot thereby deprive the heir of of his debt until a reasonable time has his right to set up the Statute of Limielapsed after the assets are converted tations against an application to have into money and the court has ordered lands sold for the payment of the debt. the payment of the debt, Miller v. Irby, Payne v. Pusey, ubi supra. If the ad63 Ala. 477 ; nor will it extinguish a ministrator is entitled to a specific debt due to the administrator's firm. lien (e. g., a landlord's lien on crops), he

Milligan, 88 Ala. 523. If he may retain the property which is subturns over the assets to his successor, he ject to it, but he can only use the surshould retain the amount of his claim. plus proceeds in payment of other debts Beadle v. Steele, 86 Ala. 413; Hankins not entitled to a lien security (e. g., rent v. Hughes, 60 Id. 316. But his receiv. of former year) pro rata with other uning sufficient assets and turning them secured claims. Smith v. Bryant, 60 over to his successor, in specie, for the Ala. 235. express purpose of being free to prose

Davis v.

*BOOK THE THIRD.

OF THE DUTIES OF AN EXECUTOR WITH RESPECT TO LEGACIES.

Having thus considered the office of an executor in regard to the payment of debts according to the order prescribed by law, it now becomes necessary to treat of the duties which next demand his attention, viz., those which respect the payment of legacies.

A legacy is defined to be “some particular thing or things given or left, either by a testator in his testament wherein an Definition of leg. executor is appointed, to be paid or performed by his acy. executor, or by an intestate in a codicil or last will, wherein no executor is appointed, to be paid or performed by an administrator " (a).

CHAPTER THE FIRST.

WHO IS CAPABLE OF BEING A LEGATEE: AND HEREWITH OF BEQUESTS

TO CHARITABLE USES,

SECTION I.

Who is capable of being a legatee. The subject of the present section has been in some degree anticipated, by the inquiry as to the capability for *the office of executor. The same rule applies in both matters, that every person is capable, excepting such as are expressly forbidden (6).1

(a) Godolph. Pt. 3, c. 1, s. 1. Where abilities and not sui juris. E. g., a mema testator directed that every “legatee” ber of a religious order may take, notunder his will should contribute £1 per withstanding vows of poverty. Lynch cent. out of their “ legacies" to Mrs. o. Loretta, 4 Dem. 312. A life convict W. and her children, it was held that for murder may take, Avery v. Everspecific legatees and annuitants and re- ett, 110 N. Y. 317; even for the murder siduary legatees were bound to con- of the testator. Preston v. Palmer, 42 tribute : Ward o. Grey, 26 Beav. 485. Hun 388. A slave may take, in the (6) Ante, p. *183.

absence of prohibitory legislation, Le 1. Personal capacity to take a devise Grand v. Darnall, 2 Pet. 664 ; and if or bequest belongs in general to all per- prohibited, a trustee may hold for him sons, although under other legal dis- until emancipation. Hoover v. Brem,

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A bankrupt may be a legatee; but where a legacy belongs to, or is

vested in, a bankrupt at the commencement of his Bankrupt.

bankruptcy, or is acquired by, or devolves on, him before

com

43 Miss. 603. In Louisiana, however, tion authorized to take may, however, the testator's concubine cannot take do so notwithstanding a charge upon the under his will more than one-tenth of gift of an annuity to A., which it his estate, Gibson v. Dooley, 32 La. An. would not have been capable of admin959 ; and a larger gift will be reduced istering as a trust for A. Booth o. Bapto that amount. Succession of Hamil- tist Church, 126 N. Y. 215 ; Currier 0. ton, 35 Id. 640.

Fanning, 13 Hun 458 ; Curran 7. Sears, CORPORATIONS, like natural persons, 2 Redf. 526. So, it may take in trust may take by bequest or devise, where for a foreign corporation which was inthey are not restricted by statute. corporated as its auxiliary. Sheldon t. These restrictions, which are

Chappele, 47 Hun 59. And a corporamonly in the form of mortmain acts. tion not authorized to take real propwill be considered in a later note. erty may take proceeds of land as has been held, however, that a corpora- money under a direction for conversion. tion is not a “person

authorized to Church Extension v. Smith, 56 Md. take by will under the New York 362. statute. Matter of Fox, 52 N. Y. 530. In like manner a foreign corporation And, in general, a corporation cannot can take real property, if authorized by take for a purpose foreign to its incor- the law of its domicil, unless expressly poration. American Colonization So. restricted by statute where the land lies, ciety v. Gartrell, 23 Ga. 448. Where Hollis v. Drew Theological Seminary, the object of the incorporation is defined 95 N. Y. 166; Harris 0. American Bible by statute, it is strictly construed. Society, 2 Abb. App. Dec. 316 ; BurThus a diocesan convention incorpo- bank v. Whitney, 24 Pick. 146; Estate rated for the purpose of “receiving sub- of Ticknor, 13 Mich. 44 ; Santa Clara scriptions” cannot take a devise for the Academy v. Sullivan, 116 m. 375 ; same objects. Brown v. Thompkins, 49 Taylor v. Bryn Mawr College, 7 Stew. Md. 423. In New Jersey, general cor- (N. J.) 101 ; Missionary Society . porations are expressly authorized by Calvert, 32 Gratt. 357; University o. statute to take (1877 Rev. 177, § 1). Tucker, 31 W. Va. 621 ; Doty 7. Hen

In states providing by general act for drix, 16 N. Y. Supp. 284; Chamberlain the incorporation of religious, literary V. Chamberlain, 43 N. Y. 424 ; Sherand charitable institutions, provision is wood o. American Bible Society, 1 Keyes frequently made for power to take by 561 ; although misdescribed as in the devise or bequest, as also in special city of New York where it only had an charters creating such corporations. unincorporated auxiliary, American And these statutes are liberally cou- Bible Society o. American Colonization strued, e. g., to apply to a historical Society, 50 Hun 194 ; even though it society, incorporated under the Act for could not have taken as a domestic corBenevolent and Literary Societies. Car- poration, White v. Howard, 38 Conn. penter v. Historical Society, 2 Dem. 574. 342; General Assembly Presbyterian But an enabling act passed after testa- Church v. Guthrie, 86 Va. 125 ; S. C., 6 tor's death is of no avail. Will of Bon- L. R. A. 321; Thompson v. Swoope, 24 ard, 16 Abb. Pr. N. S. 128. A corpora- Pa. St. 474 ; Riley o. Diggs, 2 Dem.

9

his discharge, it vests in the trustee in his bankruptcy and is divisible amongst his creditors (c). 184. Its authority to take, in the not, in general, take a devise, Philaabsence of express restrictions, depends delphia Baptist Association v. Hart, 4 on the law of its own domicil. Matter Wheat. 1; Goodell v. Union Association, of Huss, 126 N. Y. 537; Thompson v. 2 Stew. (N. J.) 32; and a gift over if Swoope, 24 Pa. St. 474 ; Methodist legatee unable, &c., takes effect. Riley Episcopal Church 0. Remington, 1 0. Diggs, 2 Dem. 184. But under the Watts 218. But in Boyce v. St. Louis, New York act of 1850, c. 122, real and 29 Barb. 650, it was held that a foreign personal property may be held in trust corporation (in this case a municipal for an unincorporated religious society corporation) not expressly authorized by without restriction as to time of vesting the law of its own domicil, could not in it upon its incorporation. Church of take a devise of land in New York, it Redemption v. Grace Church, 68 N. Y. being suggested that any other view 570. And an unincorporated church would open the door to fraudulent will be deemed a corporation under the erasion of the New York restrictions.

statute of its foreign domicil for the The right of a foreign corporation to purpose of receiving donations. Mattake personal property is to be deter- ter of Bullock, 6 Dem. 335. mined by the law of its own domicil. In some states even charitable instituWhite c. Howard, 46 N. Y. 144 ; Draper tions which are not incorporated can6. Harvard College, 57 How. Pr. 269 ; not take, White v. Howard, 46 N. Y. Chamberlain o. Chamberlain, ubi supra; 144 ; Marx v. McGlynn, 88 N. Y. 357 ; Sherwood 0. American Bible Society, McKeon o. Kearney, 57 How. Pr. 349 ;

First Presbyterian Society v. Bowen, In New Jersey, foreign corporations 21 Hun 389 ; Leonard v. Davenport, 58 are expressly authorized to take lands How. Pr. 384 ; (although formerly held derised for the benevolent or charitable otherwise as to legacies in New York, purposes of their incorporation (Act of Hornbeck v. American Bible Society, 2 1883, Rev. Supp. 146 $ 6), or in general Sandf. Ch. 133; Banks 0. Phelan, 4 for business in New Jersey or satisfac- Barb. 80); Brown o. Tompkins, 49 Md. tion of mortgage debts (Act of 1882, Id. 423 ; Rizer v. Perry, 58 Md. 112 ; Suc$5). So, in New York, to acquire real cession of Ilardesley, 22 La. Ann. 332 ; property so far as necessary for their and this is so in Virginia, Philadelphia corporate purposes in the transaction of

Baptist Association v. Hart, ubi supra, business in New York (Laws 1892, c. except so far as it has been modified by 697, § 17). And in Alabama a devise recent statutes as to schools. So, courts may be made to any corporation capa- have refused to support a devise in trust ble of holding real estate (1886 Code, for various unincorporated charities, $ 1916).

Bible Society 0. Pendleton, 7 W. Va. UNINCORPORATED SOCIETIES. A

79; Wilson v. Perry, 29 W. Va. 169 ; voluntary unincorporated society can- or for the use of a certain church, Id.;

ubi supra.

(e) Bankruptcy Act, 1883 (46 & 47 Vict. c. 52), 8. 44 (1). It must be observed, however, that legacies the payment of which is by the terms of the gift made conditional upon the legatee

not being or becoming a bankrupt do
not in the event of the legatee's bank-
ruptcy pass to the trustee.
p. *1131.

See post,

An alien may be a legatee (d).2 Alien.

By stat. i Vict. c. 26, s. 15 (which, however, does not

1 or to permit a voluntary religious society Estate of Ticknor, 13 Mich. 44; Burto build a church, Gallego v. Attorney- bank v. Whitney, 24 Pick. 146; Mason General, 3 Leigh 450; Seaburn v. Sea- r. Methodist Episcopal Church, 12 C. E. burn, 15 Gratt. 423 ; and the unincor- Gr. 47. So in Missouri, under the conporated inhabitants of a township can- stitution of1875. Lilly v. Tobbein, 103 not take, Barker v. Wood, 9 Mass. 419; Mo. 477. So, now, in Virginia (1887 nor (under former law of Virginia) Code, S 1398) and West Virginia (1891 trustees for a schoolhouse for poor Code, c. 57, § 1) a church can take by children, no incorporation being contem- conveyance for church building, parsonplated, Stonestreet v. Doyle, 75 Va. 356; age or cemetery ; and in Virginia (Code, or for the education of poor children, $ 1420) a deed or devise may be made Janey v. Latane, 4 Leigh 327. So, in for schools, other than unincorporated West Virginia, trustees cannot take a theological seminaries. In Maryland, devise for an unincorporated church, an unincorporated society may take for Mong v. Roush, 29 W. Va. 119. So, a a charitable object. Barnum c. Balti. devise cannot be made to unincor- more, 62 Md. 275. In Tennessee, the porated managers of city water works statute authorizes gifts of land by deed controlled by the city but not furnish- or otherwise, to any religious denomi. ing a free water supply, Doughten v. nation or society, incorporated or not Vandever, 6 Del. Ch. 51. And such (1884 Code, S 2006), for a church builddevise will not be helped by subsequent ing, or (1889, P. L. c. 11) for a parson

c incorporation of the donee. Succession age.

Executors appointed “to carry of Hardesley, 22 La. Ann. 332. But in- out the will ” are trustees by implicacorporation after date of will and tion. Cobb v Denton, 6 Baxt. 235. before the testator's death is sufficient. And the capacity of an unincorporated Chase v. Stockett, 72 Md. 235. And Masonic lodge to take a bequest as a municipal corporation may take a trustee for its own widows and orphans charitable bequest for an unincorpo. can only be questioned by the state. rated asylum maintained and governed Heiskell 0. Chickasaw Lodge, 87 Tenn. by it. Succession of Vance, 39 La. 668. But a bequest of money to an Ann. 371. So, an incorporated church, unincorporated church without the in. sanctioned by the legislature, may take terposition of a trustee is void. Rhodes a legacy for the benefit of its unincor- 0. Rhodes, 88 Tenn. 637 ; Reeves r. porated Sunday school. Eutaw Church Reeves, 5 B. J. Lea 644 ; although a v. Shively, 67 Md, 493.

devise coming within the act is not, And, in general, an unincorporated Reeves v. Reeves, ubi supra. religious or charitable society is capable But where a gift in remainder to of taking by will. Zeissweiss v. James, an unincorporated charitable society 63 Pa. St. 465 ; Zimmerman o. Anders, would be bad, it will be sufficient 6 Watts &. S. 218; Bartlet v. King, 12 to sustain such a charity if it is in. Mass. 536 ; Burro. Smith. 7 Vt. 241 ; corporated during the prior life estate. Smith ». Nelson, 18 Vt. 511; American Shipman 9. Rollins, 98 N. Y. 311 Tract Society v. Atwater, 30 0. St. 77; (revg. 33 Hun 89); Jones 0. Metho

(d) See the Naturalization Act, 1870, 2. At common law, an alien may take 33 & 34 Vict. c. 14, s. 2.

a bequest of personal property. Craig

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