페이지 이미지
PDF
ePub

ministration, Probate Court v. Kimball, 42 Vt. 320. So, they are to be paid, in general, out of the principal moneys of the estate. But in the case of legacies to grandchildren with a direction that certain stocks and bonds be kept at interest and the dividends paid to grandchildren until the legacies are paid, and that the dividends be then divided between four children, the legacies are to be paid out of the accruing interest

and dividends. House v. Ewen, 10 Stew. (N. J.) 368. And if legacies are made payable out of rents under a certain lease, they will be payable out of a subsequent lease made after the original lease is

cancelled. Danforth's Appeal, 121 Pa. St. 359. So, the entire personal estate is liable for the payment of legacies (after expenses and debts). Thus, if the estate is subjected to a power of appointment given to A. after the payment of certain legacies, and it is divided by the exercise of the power of appointment into two different funds, the legacies will be payable pro rata out of the entire estate irrespective of this division. Cochran v. Elwell, 1 Dick. (N. J.) 333.

The charge of legacies upon a particular fund and the marshaling of assets for payment of legacies are considered in Volume 3, ubi infra.

SECTION VIII.

Of the payment or delivery of specific legacies.

which

of the testator:

shall to the date of the will or death of testator :

With respect to the payment, or delivery, of specific legacies, a Whether the lega- question may arise, whether the legatee is entitled to to any increase any increase, which may have happened to the subject, before the death between the date of the will and the death of the testa

tor: or, in other words, whether the legacy shall liave :e, whether the relation to the one period or the other.

As to wills made, or re-executed, or republished on or

after the 1st day of January, 1838, it is enacted by stat. 1 Vict. c. 26, s. 24, that “every Will shall be construed *withi reference to the real estate and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the Will."

The general rule, which was established, as to wills of personal estate, before the passing of this statute, may, perhaps, be stated to be, that, in order to confine the bequests to the date of the will, the expressions must refer unequivocally to the property which the testator then had ; otherwise they would not be allowed to have that effect (0): Thus if the bequest were general, as of all the testator's goods in a particular house or place, whatever personal chattels were found there at the time of his death would pass, though not there at the date of the will (p).

However, if the testator showed a clear intention to dispose of such goods as belonged to him in a particular place at the date of his will, property afterward brought there would not pass : as where the bequest is “ of all such part of my personal property as is now in my

+ See American note at end of S VI., p. *1296, ubi supra.

(0) See Parker v. Marchant, 1 Y. & C. Ch. C. 290. See also the rule as stated by Lord Cottenham, in Cole v. Scott, 1 Mac. & G. 529. Ante, p. *175, note (t).

(p) Sayer v. Sayer, 2 Vern. 688. 1 Rop. Leg. 220, 3rd edit. But none will pass by such a bequest, which are not actually in the house or place at the

testator's death, however clear the in. tention of the testator may be to have placed them there : Thus if one bequeaths to his son the furniture of his house at D., and orders goods to be carried thither from London, and agrees with the carrier for that purpose, but dies before the goods are removed to D.; they cannot pass by the bequest : Beaufort v. Dundonald, 2 Vern. 739.

house at —(9). But in All Souls' College v. Coddrington (r), the bequest was, “ I devise my library of books, now in the custody of C., to All Souls' College in Oxford ;” and the testator gave to the same college 4,000l. more to augment their library : He afterward bought several valuable books, which were placed in his *library : And the question was, whether those books passed to the college: Sir Joseph Jekyll, M. R. determined in the affirmative, upon the construction of the word “now ;” his honor being of opinion, that

” “now" did not relate to the books which were in the library at the date of the will ; but that it denoted where the library was; and night have been intended to distinguish that particular library from any other belonging to the testator: And his honor observed, " if I devise all my flock of sheep now on such a hill, or in such a pasture; in that case, because sheep are in their nature fluctuating, some must die, some be killed and some lambs be produced which will afterward breed, and it being the case of a collective body, the sheep produced afterward shall pass ; and this is within the reason of a devise of a personal estate, which, because always fluctuating, shall therefore relate to the time of the testator's death ; besides the Will, as to personals, does not speak till after the testator's death."

In Harcourt v. Morgan (s), a testator gave to W. H. and M. H. the amount of the bond he held for 1,000l.: when they got

case of accretion ; the principal money paid to them, they then to give their uncle, J. B., the sum of 501., and also their father and mother the sum of 501. each, arising from the bond: And Lord Langdale, M. R., held, that W. H. and M. H. were entitled to the interest accrued due upon the bond in the lifetime of the testator, as well as to the principal (1).

With respect to cases where the testator has bequeathed the whole of some one genus of his property, as

“ all debts due to me on bonds," or “all my stock,” or “my share,” or in any other way has referred to particular property, and bequeathed it by the description of all his property, the court bad arrived at a conclusion, before the Wills Act, that he meant only so much of the property in that state of investment as he was possessed of at the date of his will (u). *But in Goodlad

(9) 1 Rop. Leg. 220, 3rd edit. Dor. the Wills Act applies, see ante, p. *175, mer v. Burnet, cited in Downing v. note (t). Townsend, Ambl. 281. Atty.-Gen. 0. (r) 1 P. Wms. 597. Bury, 2 Vin. Abr. 328, pl. 2. 1 Eq. (8) 2 Keen, 274. Cas. Abr. 201. See also Smallman v. (t) See ante, p. *1064 (9). Goolden, 1 Cox, 329. As to the effect (u) Kay, 404. 1 Kay & J. 347, 348. of the word “now" in a will to which Ante, p. *1023.

[*1300] [*1301]

[ocr errors]

v. Burnett (x), Sir W. Page Wood, V.-C., expressed his opinion that, since the above enactment of the Wills Act, it required some plainer indication of “contrary intention," than the mere circumstance that the testator has described stock by the words“ my stock,” to take the case out of the statutory rule that the will shall speak as if it had been executed immediately before his death : And his honor accordingly held that, where a testatrix, in 1850, bequeathed thus, “I give my New three and a quarter per cent. annuities," the bequest comprised all the new three and a quarter per cents. which she had at her death :-And the learned judge distinguished between a reference to a particular thing, such as a ring or a horse, and a bequest of it as

my ring” or “my horse," and a bequest of that which is generic and which may be increased or diminished (y).

The effect of section 24 of the Wills Act is not to alter the law of specific legacies (2). The only effect is that, to ascertain what is comprised in a specific bequest, it is necessary in all cases to consider the will as made immediately before the testator's death (a). There is only one exception to this rule and that is where the testator refers to the date of the will *as the point of time at which the quantum of the property is to be ascertained (b). There is, however, another apparent exception to the rule, which is, where a testator has used words of such a character that it is doubtful whether or not they are sufficiently extensive to cover additions to the property made between

[ocr errors]

(x) 1 Kay & J. 341.

(y) See also Douglas v. Douglas, Kay, 400, 405, where the same judge expressed an opinion that under the Wills Act a gift of “all my stock” would * pass all stock to which the testator was entitled at his death ; but a gift of “all my stock which I have purchased," must be confined to stock actually purchased at the date of the will: And his honor took a like distinction between a gift of “all the debts due to me on judgments,”and “all judgments, which I have registered :" His honor proceeded to decide, that in a will made since the statute, and containing the words, “I hereby exonerate my sister from all claims in respect of money laid out by me in improvements of the estates in Scotland, and which

money has, according to the laws of Scotland, been charged thereon,” the exoneration only applied to moneys so charged at the date of the will, and not to money afterward laid out and charged, nor even to money then laid out, but afterward charged.

(2) Per Jessel, M. R. Bothamley 0. Sherson, L. R. 20 Eq. 304, 312.

(a) Per Turner, L. J. Langdale t. Briggs, 8 De G. M. & G. 391, 435.

(6) Cole v. Scott, 1 Mac. & G. 529. Douglas v. Douglas, Kay, 400. Hutchinson v. Barrow, 6 H. & N. 583. Williams v. Owens, 2 N. R. 585. Jepson v. Key, 2 H. & C. 873. Hepburn 0. Skirving, 4 Jur. N. S. 651. Lord Lilford v. Powys Keck, 30 Beav. 300. Wagstaff v. Wagstaff, L. R. 8 Eq. 229. And see ante, pp. *175-*178.

:

in the testator's

the

will.

testator's death,

the date of the will and that of his death. It is in the construction of gifts of this character that questions have usually arisen since the Wills Act (c).

If the testator bequeaths to a specific legatee a certain quantity of bank stock, for example 5,0001. standing in his name, Bonuses accruing and a bonus be given by the bank, under the statute life: 56 Geo. III. c. 96, s. 3, in the interval between the date (a) after the will. of the will and the testator's death, the additional capital (b) before will not pass to the legatee (d). But in Matthews v. Maude (e), a testatrix had power to dispose by will of property, which she enjoyed under the residuary gift of her brother ; a part of this property consisted of 7,0001. bank stock which after the brother's death was increased by a bonus to 8,7501.; The testatrix in her will, made shortly after the bonus was declared, described the bank stock as consisting of 7,0001.: And Sir J. Leach, M. R., decreed that the 8,750l. passed by force of general expressions which plainly manifested an intention to bequeath all that the testatrix

Bonuses accruing derived from her brother (f). And with regard to after the bonuses which accrue after *the death of the testator, upon shares specifically bequeathed by him, such bonuses belong to the specific legatee (9).

It may be observed, in conclusion, that it is the duty of executors, as far as possible, to preserve articles specifically Specific legacies bequeathed, according to the testator's wish ; and, not to be sold unless compelled, they ought not to apply them to the sity : payment of debts (h). And it may be further remarked, that it is also the duty of the executors to get in all the testator's estate, whether specifically bequeathed or otherwise : and that the expenses must be got in by incurred in doing so must be paid out of the general the expense of the estate, as part of the expenses of the administration (i). general estate :

(c) See for cases where the larger (d) Norris v. Harrison, 2 Madd. 268. interpretation prevailed : Miles o. Miles, See further, Loscombe v. Wintringham, L. R. 1 Eq. 462. Trinder o. Trinder, 12 Beav. 46. But see also Courtney 0. ib. 695. Castle 0. Fox, L. R. 11 Eq. Ferrers, 1 Sim. 145. 542. Re Ord, 9 C. D. 667 ; 12 C. D. (e) 1 Russ. & M. 397. 22. Saxton 0. Saxton, 13 C. D. 359. (f) See also, Carver 0. Bowles, 2 And for cases where the narrower : Russ. & M. 304. Webb v. Byng, 1 K. & J. 580. Re (g) See Maclaren o. Stainton, 27 Beav. Portal and Lamb, 30 C. D. 50. And 460, 462 ; reversed 3 De G. F. & J. 202. see generally as to the time from which See ante, p. *1285. & will speaks, pp. *175-*178, ante, and (h) Clarke v. Lord Ormonde, Jacob, as to the ademption of legacies, ante, 108. p. *1183 et seq.

(1) Perry o. Meddowcroft, 4 Beav. 204.

[*1303]

neces

« 이전계속 »