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and in the next place, three legacies to B., C., and D., with legal interest from three months after his death; and afterward to raise and set apart three sums of money to be applied as therein mentioned : Upon a question of abatement, the court declared, upon the principle before stated, that none of the legacies were entitled to a priority of payment, and, therefore, that all of them must abate proportionally, according to the general rule (k). *It is necessary here to refer to the class of legacies alluded to in a
previous section (1), as being in the nature of specific Legacies in nature of specific legacies, and sometimes called demonstrative legacies, legacies.
viz. bequests of money with reference to a particular fund for their payment, and not simply a gift of the specific fund itself; Those legatees have such a lien upon the specific fund referred to, that they will not be obliged to abate with general legatees : 12 And in this, as in the preceding cases, the testator's intention is the prin. ciple : for it is inferred, that he, in referring to specific parts of his estate for payment for particular legacies, intended those legacies as a preference to others which he had not so secured (m).
It has appeared, that as long as any of the assets, not specifically
(k) See also Thwaites v. Foreman, 1 Coll. 409. Creed v. Creed, 1 Dr. & W. 416. 11 Cl. & F. 491. Ashburnham v. Ashburnham, 16 Sim. 186. Miller t. Huddlestone, 17 Sim. 71. 3 Mac. & G. 513. Lord Dunboyne v. Brander, 18 Beav. 313. Eavestaff v. Austin, 19 Beav. 591. Haynes v. Haynes, 3 De Gex, M. & G. 591. Coore v. Todd, 23 Beav. 92.7 De Gex, M. & G. 520. Wright 0. Weston, 26 Beav. 429. Haslewood v. Green, 28 Beav. 1. Elwes 0. Causton, 30 Beav. 554,
(1) Ante, p. *1021.
12. Demonstrative legacies to the extent of the fund or property specifically designated for their payment do not abate with general legacies, Woer
on Admn. 8 452; Matter of Hopkins, 57 Hun 9; Estate of Barkley, 10 Pa. St. 387; Bowen v. Dorrance, 12 R. I. 269; but abate with general legacies as to any deficiency after the special fund is exhausted, Florence v.
Sands, 4 Redf. 206 ; Gelbach v. Shirely, 67 Md. 498; Lake v. Copeland, 82 Tex. 464; and if payable out of the same fund they abate proportionally inter se, Sumner v. Society, 64 N. H. 321 ; Estate of Apple, 66 Cal. 432. So, where certain amounts are given out of a fund, and the residue to A. Alsop v. Bowers, 76 N. C. 168. A demonstra. tive legacy charged on lands devised abates with the devise. Knecht's Appeal, 71 Pa. St. 333; Grim's Appeal, 89 Pa. St. 333. And a legacy charged on land abates with general legacies if so intended. Rambo o. Rumer, 4 Del. Ch. 9.
(m) Roberts 0. Pocock, 4 Ves. 150. Lambert 0, Lambert, 11 Ves. 607. Robinson o. Geldard, 3 M. & G. 735, 745, by Lord Truro. Acton r. Acton, 1 Meriv. 178. Creed v. Creed, 11 Cl. & F. 491, 509, per Lord Cottenham. Tempest v. Tempest, 2 K. & J. 635, affd. 26 L. J. Ch. 501.
of the abatement
bequeathed, remain, such as are specifically bequeathed are not to be applied in payment of debts (n); although to the complete disappointment of the general legacies : But when of specific legathe assets, not specifically bequeathed, are insufficient to pay all the debts, then the specific legatees must abate, in proportion to the value of their individual legacies (o). So a legatee entitled to a legacy of the sort just mentioned, in the nature of a specific legacy, must abate with the specific legatees (p).
An important inquiry, connected with this subject, some*times occurs ; viz. under what circumstances the specific legatees of chattels can compel the devisees of the real estate of the testator to contribute to the satisfaction of his debts, in case the general personal estate proves insufficient for that purpose. But it will be more convenient to consider this question hereafter, together with the subject of the exoneration of real estate (9) and the doctrine of marshaling assets (r).
Of the executor's assent to a legacy. The whole personal property of the testator, as it has appeared in a former part of this work, devolves upon his executor (s). Necessity of erIt is his duty to apply it, in the first place, to the pay- complete the title ment of the debts of the deceased ; and he is
of legatee. sible to the creditors for the satisfaction of their demands, to the extent of the whole estate, without regard to the testator's having by the will directed that a portion of it shall be applied to other purposes (1). Hence, as a protection to the executor, the law imposes the necessity that every legatee, whether general or specific, and whether of chattels real or personal, must obtain the executor's assent 13
(n) Or of costs, when a suit has been (t) Ante, p. *1202. instituted: Barton v. Cooke, 5 Ves. 464. 13. On the testator's death legacies But see Newbegin v. Bell, 23 Beav. 386. vest in his representatives and not in
(6) Sleech o. Thorington, 2 Ves. Sen. the legatees. Osgood v. Foster, 5 Allen 561, 564. Clifton v. Burt, 1 P. Wms. 560. So, by statute in California (1888 680. Duke of Devon v. Atkins, 2 P. Civ. Code, S 1363). And the executor's Wms. 382, 383. 2 Fonbl. Treat. Eq. assent is necessary to the legatee's title, B. 4 Pt. 1, ch. 2, s. 5, note (9). See Croswell on Exrs. § 490 ; Schouler on Fielding o. Preston, 1 De G. & J. 438. Exrs. $ 488 ; Woerner on Admn. $ 453 ;
(p) Roberts o. Pocock, 4 Ves. 160. Wilson v. Rine, 1 Harr. & J. 138; Suggs (9) Post, Pt. IV. Bk. I. Ch. II. & I. v. Sapp, 20 Ga. 100; and to his main(r) Ibid. § II.
tenance of a suit at law, although he (8) Ante, p. *570.
may sue in equity without such assent,
to the legacy before his title as legatee can be complete and perfect (u).
Hence, also, the legatee has no authority to take possession of his legacy without such assent, although the testator, by his will, expressly direct that he shall do so : for if this were permitted, a testator might appoint all his effects to be thus taken, in fraud of his creditors (2c).
Before such assent, however, the legatee has an inchoate right to the legacy, such as is transmissible to his own per*sonal representatives, in case of his death before it be paid or delivered (y).
Again, if the testator by will forgive a debt due to him from a pa ticular person, it is the better opinion, that the assent of the executor is necessary to give effect to the testator's intention ; for although on the one hand, it may be alleged that the party, to whom the debt is bequeathed, must necessarily have it by way of retainer, and that such a clause operates rather as an extinguishment than as a donation, and therefore that it needs no such assent, as where there is to be a transfer of the property : yet on the other hand, a debt so forgiven is regarded, with great reason, in the light of a legacy, and, like other legacies, not to be sanctioned by the executor, in case the estate be insufficient for the payment of debts : But as soon as the executor assents, and not before, it shall be effectually discharged (z).
Until modern times, it appears to have been the practice of the Bank of England, with respect to government stock or annuities, grounded upon the statute 5 W. & M. c. 20, by which the Bank was instituted, and upon the other Acts of Parliament which regulate the devise of property transferable at the Bank (by which the probates of wills are directed to be there deposited, for the purpose of having the
Bonner v. Young, 68 Ala. 35 ; Lark v. assent is unnecessary to enforce a legacy Linstead, 2 Md. Ch. 162. So, a legacy charged upon land. Tole v. Hardy, cannot be set up as a counter claim 6 Cow. 333. against a suit of the executor until it has (u) Swinb. Pt. 1, § 6, pl. 5, s. 7, pl. 1. received his assent. Latimer' o. Sul- 1 Saund. 427, note (5) to Duppa 0. livan, 30 S. C. 112.
Assent is necessary Mayo. even before action for the recovery of a (.r) Wentw. Off. Ex. 409, 14th edit. specific bequest. Hairston v. Hall, 3 (y) Wentw. Off. Ex. 69, 14th edit. Call 188. And the administrator may (2) Wentw. Off. Ex. 72, 14th edit. recover from a legatee in possession Rider v. Wager, 2 P. Wms. 332. Sibwithout his assent, Crist o. Crist, 1 Ind. thorpe. Moxom, 3 Atk. 581. Elliott 570 ; although the possession antedates v. Davenport, 1 P. Wms. 83. his own appointment, Upchurch 0. Butler, 2 Price, 41. Norsworthy, 12 Ala. 532. But such
trusts extracted), in cases 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, to be now clear, 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 (a). 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 (6). And now, by stat. 33 & 34 Vict. c. 71, s. 23, it is expressly enacted, that all stock, standing in the name of any deceased person, shall and may be assigned and transferred by the executors or administrators of the deceased, notwithstanding any specific bequest thereof (c).
It follows from the rule respecting the necessity of the executor's assent, that if, without it, the legatee takes possession of the thing bequeathed, the executor may maintain an action of trespass or trover against him: So although a chattel, real or personal, specifically bequeathed, be in the custody or possession of the legatee, and the assets be fully adequate to the payment of debts, he has no right to retain it in opposition to the executor; by whom, in such case, an action will lie to recover it (a). If an executor refuse his assent without cause, he
may be compelled to give it, by a court of equity (e).14
With respect to what shall constitute such assent on the part of the executor, the law has for this purpose prescribed no specific form ; and it may be either express or im. stitute an assent. plied (f): The executor may not only in direct terms authorize the
(a) See ante, p. *721. Humberstone 14. If assent is withheld wrongfully 0. Chase, 2 Younge & C. 209.
the legatee may have a bill in equity for 1 Rop. Leg. 732, 3rd edit.
relief, Story Eq. 593 ; Willard Eq. 498 ; (C) See ante, pp. *721, *722.
Decouche o. Swatier, 3 Johns. Ch. 190; (d) Mead 0. Orrery, 3 Atk. 239. and assent may be compelled in equity, Wentw. Off. Ex. 409, 14th edit. Com. Lark 0. Linstead, 2 Md. Ch. 162; Dig. Admon. (C. 5). Bac. Abr. Exors. Crist o. Crist, 1 Ind. 570. (L.) 3.
() Whether there has been an assent (e) Com. Dig. Admon. (C. 8).
or not may involve matters of law, but
What shall con
legatee to take possession of his legacy, but his concurrence may be inferred either from direct expressions or particular *acts ; 15 and such constructive permission shall be equally available (g). Thus, for
it is generally a question of fact : Elliott v. Elliott, 9 M. & W. 27, per Lord Abinger. Mason v. Farnell, 12 M. & W. 674.
15. The assent may be before debts are paid. Edney v. Bryson, 2 Jones 365 ; Thompson v. Schmidt, 3 Hill (S. C.) 156. But the assent will be valid although the executor die after probate before qualifying. Gums v. Capehart, 5 Jones Eq. 242. See, however, Gardner 0. Garett, 19 Ala. 666. Assent by one of several co-executors is sufficient. Adie v. Cromwell, 3 T. B. Mon. 276.
Delivery of a specific legacy amounts to assent. McClenahan v. Davis, 8 How. 170; Lott v. Meacham, 4 Fla. 144 ; Lynch v. Thomas, 3 Leigh 682 ; Frazer o. Berrill, 11 Gratt. 9; Rea v. Rhodes, 5 Ired. 148; Edney v. Bryson 2 Jones 365 ; Hall v. Hall, 27 Miss. 458. So, if the administrator retains possession under order of court as trustee of the absent legatee. Buffaloe v. Baugh, 12 Ired. 201. And where he has assented to a life estate his possession after the death of the life tenant will be only as bailee for the remainderman. Harkins v. Hughes, 60 Ala. 316. So, the legatee's previous possession before testator's death continued by sufferance of the executor is sufficient assent, Lowry v. Mountjoy, 6 Call 55; Propst v. Roseman, 4 Jones 130 ; and such possession suffered in the life tenant enures to remaindermen, as does delivery of possession by the executor to the life tenant, Parker v. Chambers, 24 Ga. 518; but only where the prior possession receives ratification and char. acter from a specific bequest of the thing held, Squires o. Old, 7 Humph. 454.
But it is not an assent for the executor and the legatee to join in an agreement substituting another person in the man
agement of the estate. George 0. Goldsby, 23 Ala. 326. So, & sale by the executrix of her interest and pay. ment to A. on account of an annuity, taking a receipt gas executrix, is not an assent to the residuary legacies to her. self and B. Burchard v. Wright, 11 Leigh 463. So, it is no assent to a specific bequest of a pocketbook and contents for the executor to say it was all the legatee took, Cheshireo. Cheshire, 2 Dev. & B. 254 ; or to receive the spe. cific object from the legatee in possession for safe keeping and give her a receipt for it, Pirtle o. Cowan, 4 Dana 302.
Assent to a life estate is in general assent to the remainder. McClenahan v. Davis, 8 How. 170; McKay v. Guirkin, 102 N. C. 21 ; Lott v. Meacham, 4 Fla. 144 ; Frazer v. Berrill, 11 Gratt. 9; Rea v. Rhodes, 5 Ired. Eq. 148; Atcheson v. McCombs, 3 Id. 554 ; Hall v. Hall, 27 Miss. 458; Thrasher v. Ingram, 32 Ala. 645 ; Harkins v. Hughes, 60 Ala. 316 ; McGlawn v. Lowe, 74 Ga. 34; Akin 0. Akin, 78 Ga. 24;: Horah v. Horah, Winst. Eq. 107. And an unnecessary sale for debts of the testator, while other assets remain in the executor's hands, will not entitle the purchaser to possession against the remainderman. Frazer v. Berrill, 11 Gratt. 9; Lynch v. Thomas, 3 Leigh 682 ; Hearne v. Kevan, 2 Ired. Eq. 34. And conversely, assent by delivery to the remainderman with the life tenant's consent is assent to the life estate. Hunter o. Green, 22 Ala. 329. So, long retention of possession by the executor, who is himself the legatee for life, is assent to the remainder over on his death. Lewis v. Smith, 4 Dev. & B. 326.
(9) Com. Dig. Admon. (C. 6). Toller, 308, 309.