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istering the property, does any act which shows he has assented to the legacy, that shall be taken as evidence of his assent; but if his acts are referable to his character of executor, they are not evidence of assent to the legacy.”

Therefore, if the executor say that he will have the legacy accord. ing to the will (6); or if by deed reciting that he has a term for years by devise, he grant it over (c); this will amount to an assent to take it as legatee. So if he take the *profits of a term to his own use (a), or repair the tenement bequeathed, at his own expense (e), or if he exclude a co-executor from a joint occupancy of a term with him (s ), all these acts indicate an assent to the bequest. So if a term of years be devised to the executor for life, and afterward to A. B., if the executor say that A. B. will have it after him, that implies an election to take it as legatee (9). In like manner, if he perform a condition or trust annexed to the devise ; as if a lessee for years devise his term to his executor, on condition of his paying 101. a year to J. S., which he pays accordingly ; this payment amounts to an election on his part to take the lease as a legacy, and it is in law an execution of the legacy forever ; for he who performs the charge of a thing, claims the benefit which is annexed to it (h). Again, an assent to take part as a residuary legatee, is an assent also to take the whole residue in the same character (i). On the other hand, if the executor merely say, that the testator “left all to him (k), this will not amount to an election to take as legatee. Further, if the executor demise a term bequeathed to him by the description of executor, this cannot be construed into an assent, because the act is consistent with his power and character as executor (): And even a lease by him in his own name, if the lease be in its terms inconsistent with his title as legatee, will not amount to an assent to take as legatee (m): It is a rule, that it is not sufficient, to constitute an implied assent, to show that the act is

(6) Com. Dig. Admon. (C. 6). Garrett v. Lister, 1 Lev. 25.

(c) Com. Dig. Admon. (C. 6). So if he disposes of it by his own will : Fenton v. Clegg, 9 Exch. 680.

(d) Com. Dig. Admon. (C. 6).

(e) Com. Dig. Admon. (C. 6). Cheyney v. Smith, 1 Leon. 216.

(f) Anon. Dyer, 277, b. Com. Dig. Admon. (C. 6).

(9) Garrett v. Lister, 1 Lev. 25. Com. Dig. (C. 6).

(h) Paramour o. Yardley, Plowd. 544. Com. Dig. Admon. (C. 6).

(3) Hinson v. Button, 2 Roll. Rep. 158.

(K) 1 Roll. Abr. 620. Devise, (D.) pl. 6. Com. Dig. Admon. (C. 7).

(1) Cheyney v. Smith, 1 Leon. 316. Com. Dig. Admon. (C. 7).

(m) Doe v. Sturges, 7 Taunt. 222

Effect of

exec

possession of a

to him.

equally applicable to the title of legatee as to the character of executor (n).

*Until the executor has made his election, either express or implied, he shall take the legacy as executor, though all the debts have been paid independently of such bequest (o).

With regard to the effect of entry by the executor into possession i of a term of years bequeathed to him, the following distiction exists : Where the entire term is given to the utor's entry into executor, an entry will amount to an election to take as term bequeathed legatee : But where a sole executor, or one of several executors, takes an interest in a leasebold estate for life, or any partial interest, he must do something more than enter, in order to give assent to his legacy (p). There is a substantial reason for this distinction ; for if his general entry on his life estate were an election to enter as legatee, it would necessarily confirm the remainder devised over (2); and that might happen in cases wherein he might want the estate in remainder for sale, in order to pay the testator's debts : Such an assent would be a devastavit in the executor, which might be a grievous hardship to him : But if the devise to him be absolute, the same reason does not exist ; for he has the value of the whole term, as an equivalent, to indemnify himself against the consequences of the devastavit (r).

In Doe v. Sturges (?), the law on this subject was fully considered by the Court of Common Pleas : In that case the testator bequeathed a term of years to his nephew Samuel Haynes for life, with remainder over, appointing Samuel and two other persons trustees and executors, with power for Samuel during life, and afterward for the surviving executors and trustees, to demise the lands for twenty-one years : Samuel alone entered upon the property at the testator's death, and demised it for fourteen and forty-two years, reserving the rent to himself, his executors, &c.: He also made the contract for this lease in his own name, and *disposed of the estate by his will, one of his co. executors being alive: The estate was claimed by the plaintiff, deriving title under the will of the first testator, in opposition to the interest of the defendant, a purchaser from the lessee : The lease

(n) Ibid. 217. See also Trail v. Bull, 1 Coll. 360, per K. Bruce, V.-C., Accord.

(0) Com. Dig. Admon. (C. 5).

(P) Doe o. Sturges, 7 Taunt. 217, 221. S. P. per Parke, J., Doe o. Tatchell, 3

B. & Adol. 680. See Touchs. 457, contra.

(9) See ante, p. *1229.

(r) Doe o. Sturges, 7 Taunt. 217, 221, by Gibbs, C. J., 514. (8) 7 Taunt. 217.

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could not be supported under the power, and, as a demise by a mere tenant for life, it determined upon his death ; but as a lease by one of several executors, it might be supported, unless the executor Samuel had previously assented to the devise himself : In that event, the legal interest in the term in remainder after his death vested in the devisees over, which entitled them to recover ; since the demise by the executor, in the character of a legatee, could only continue during his life; But the court decided, that neither his entering into the land, nor his sole lease reserving rent to himself and his executors, (which was alike inconsistent with his interest as tenant for life, and his duty as executor,) should be deemed an assent to the legacy; and that the lease should therefore take effect for the whole forty-two years, out of the lessor's legal interest as executor.

In the case of the Atty.-Gen..v. Potter (1), a testator bequeathed a leasehold house, and his residuary estate, to his wife, and John Lane and James Potter, whom he appointed his executrix and executors, in trust to permit his said wife to receive the rents, interest and profits for life, and afterward to pay certain legacies, and the residue was given to Ann, the wife of the said James Potter, and three others, or such of them as should be living at his death : The widow, with the permission of her co-executors, retained possession of the house durs ing her life, and Ann Potter, together with the three others, executed a deed, whereby they agreed to take as tenants in common; and it was also executed by James Potter the executor, and husband of Ann : And it was held by Lord Langdale, M. R., that no assent to the legacy of the house in remainder had been constituted by these facts.

*However an entry by an executor, to whom a partial interest only in a term of years had been bequeathed, may, accompanied by other circumstances, amount to an election to take as legatee : As where an executor, devisee for life of a term of years, enters upon the lands, explaining the act by a declaration that he claims the estate as devisee for life (u). So where a lease is devised to an executor, during the minority of the testator's eldest son, to the intent that with the profits he should educate all the children, and the residue of term, after the son attains twenty-one, is given to him ; the entry of the executor generally, coupled with an application by him of the rent in educating the children, will amount to an assent, not only to the devise to himself, but of the residue of the term to the eldest son (x). In Doe (1) 5 Beav. 164.

(2) Paramour 0. Yardley, Plowd. (u) Welcden v. Elkington, Dyer, 358, 539. See also Young v. Holmes, 1 Stra. b. 359

710.

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v. Tatchell (y), a testator bequeathed a term in premises to R. Sharp, his executors, &c., in trust to sell and dispose of the same, as might seem most advantageous, and apply the proceeds to the maintenance of the testator's son during his life : He bequeathed the remainder after the son's decease to such uses as the son should by his will appoint ; and he appointed Sharp his executor : When the testator died, his journeyman was managing his business on the premises, as he had done for some years, and the testator's son also resided there : At the funeral, Sharp said, in presence of the journeyman and other persons, “ The house is young Batten’s (meaning the son's), Tatchell (the journeyman) must stay in the house and go on with the business, but young Batten must have a biding place :” Tatchell accordingly continued on the premises, carrying on the business, paying no rent, but maintaining the testator's son who was weak in intellect and unable to provide for himself : Sharp lived twenty years afterward, and did not interfere further with the property : And the Court of King's Bench held, that that was a sufficient evidence of a disposal of the property by Sharp *according to the trusts in the will, and that he had assented to take under the will as legatee in trust, and not as executor (z).

This decision, it may be observed, demonstrates that it is not essential for the efficacy or validity of an assent to a bequest that it should confer a legal interest, or affect the mere legal title to the subject of the bequest : And accordingly, in Trail v. Bull (a), where a testator bequeathed all his personal estate to his wife, with the exception of two leasehold houses, the rents of which he gave her for life, and after her death he directed that they should be sold and the produce divided among his four children, and he appointed his wife and another person his executrix and executor; and upon his death his wife entered into possession of his personal property, including the leasehold houses, and paid all his debts; it was held by Knight Bruce, V.-C., that, under the circumstances of the case, she had assented to the legacy to the children.

In Richards v. Brown (6), a testator bequeathed to a Miss Wade, whom he appointed executrix, his household furniture

Executor taking for her life, and after her death to Sarah Chapple : possession The testator, at the time of his decease, which took queathed to him place in the year 1825, was indebted in 1001. on a

or be

for life.

(y) 3 B. & Adol. 675.

(a) 1 Coll. 352, affd. 22 L. J. Ch. 1082. (2) See also Fenton o. Clegg, 9 Exch. (6) 3 Bingh. N. S. 493. Ante, p. 680.

*1206. 44

[*1238]

promissory note, which he had made in the year 1816, and on which he had regularly paid interest during his life : On his death, Miss Wade took possession of the furniture, and continued to pay interest on the note up to the year 1831 : On her death, in the year 1832, Sarah Chapple took possession of the furniture: And it was contended that Miss Wade, by so taking possession under the bequest to her for life, had assented to the residuary bequest of S. Chapple : But the Court of Common Pleas held, that this did not, under the circumstances, amount to such an assent : And Tindal, C. J., said, that though an assent to a particular estate in the property bequeathed is an assent to the estate in remainder also, yet, as Miss Wade might have *taken the furniture either as executrix or as legatee, and as there was no reason for presuming that she took it on the bad title of a legatee while debts remained unpaid, when she might have taken it on a good one as executrix, it must be intended that she held it as executrix.

If an executor legatee renounce probate, his assent to his own legacy

will be ineffectual ; and if he take the thing bequeathed Executor's assent to his own legacy without the permission of the administrator cum testa

.

mento annexo, he will incur the same liabilities as any other legatee so acting (c). If one of several executors be a legatee, his single assent to his own

legacy will vest the complete title in him (a) : And if Assent of one of several executors the subject be entire and given to all the executors, to his own legacy.

the assent of any one of them to his own proportion will be sufficient (e).

gener

SECTION IV. At what time legacies are to be paid: and herewith of bequests for life,

with remainder over. On the same principle that the assent of an executor to a legacy is Legacies

necessary, he cannot, before a competent time has aliy payable at elapsed, be compelled to pay it. The period fixed by testaior's the civil law for that purpose, which our courts have

also prescribed, and which is analogous to the Statute (c) Broker 0. Charter, Cro. Eliz. 92. (d) 1 Roll. Abr. 618, Devise, (B.) pl. And by reason of stat. 20 & 21 Vict. c. 2, 3. Townson v. Tickell, 3 B. & A. 77, s. 79 (ante, p. *233), the law is now 31, 40. Ante, pp. *819, *1231. the same, where the legatee, being one

(e) Ibid. of several executors, renounces, and the others prove the will.

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