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what is a sever
Hamilton (6), all the executors died except two, Hoare and Griffiths : Hoare alone proved and died ; After his death Griffiths proved : And he was declared entitled, as surviving executor, to all the testator's personal estate not reduced into possession and divided before the death of Hoare.
The question as to what shall amount to a severance of the jointtenancy, was much considered in the case of Gould v. Kemp (c). There a testatrix bequeathed the residue ance of the joint of her property "to my executors, hereinafter named, to enable them to pay my debts, legacies, funeral, and testamentary charges, and also to recompense them for their trouble, equally between them. I do nominate, constitute, and appoint my said trustees, James Kemp, James Kemp the younger, and John Prior Ward, to be executors of this my Will : " James Kemp the elder died in the lifetime of the testatrix ; and it was held, that as the gift was to the three, as a class, in their official character, the whole residue vested in the two survivors (d): James Kemp the younger and Ward proved the will, and took on them the office of executors : Some years afterward, but before any severance of the residuary property had been made, a letter was written and delivered by Kemp to Ward, who at the time was confined to his bed by sickness, engaging to secure to his family, in any way he might desire by his will, a moiety of the property bequeathed to them by the will of their testatrix : And it was held by Sir John Leach, M. R., and afterward by *Lord Brougham, on appeal, that this letter amounted to a severance of the joint tenancy.
Again, where leasehold property was given by will to two sisters as joint tenants and they mutually agreed to bequeath it in trust for each other for life and for their nieces after the death of the survivor, and, one sister having died, the survivor made a will giving the property in a different manner, it was held that the agreement between the sisters, carried out by the making of the will, severed the joint tenancy and that the property must be administered on the footing of a tenancy in common (e).
The several receipts by joint-tenants of a portion of the trust fund
467, Lord Hardwicke laid it down as a rule, that if two tenants in common put out money as joint executors, it shall not survive, but shall go respectively to those persons who are the proper representatives of each.
(6) 12 Ves. 298.
(e) Re Wilford's Estate, 11 C. D. 267.
does not destroy the joint tenancy as to the remainder of the fund (J). Nor does the employment by them of the estates
What is not bequeathed in their partnership trade (g). Nor is the severance of the
joint tenancy. marriage of one of them being a daughter a severance, unless the marriage divests the property from the wife and vests it in the husband (h).
(f) Leak v. McDowall, 32 Beav. 28. the chattels personal in possession of
(9) Brown v. Oakshott, 24 Beav. 254. the wife, not with regard to chattels See further as to what amounts to a real, or choses in action. See also Re severance of joint tenancy, Williams v. Barton's Will, 10 Hare, 12, and ArmHensman, 1 Johns. & H. 546. Cald- strong v. Armstrong, L. R. 7 Eq. 518. well 0. Fellowes, L. R. 9 Eq. 410. But since the passing of the Married Baillie v. Treharne, 17 C, D, 388.
Women's Property Act, 1882, marriage, (h) Re Butler, 38 C. D. 286 (overrul- it would seem, no longer operates as a ing on this point Baillie v. Trebarne, severance of the wife's interest as joint 17 C. D. 388). From which case it ap- tenant except in case of property of a pears that by the common law marriage married woman not affected by that effects a severance only with regard to act.
Residuary bequest-Vesting. As in the case of general legacies (p. 677, note 13, ubi supra), a residuary bequest vests in the executor, subject to distribution, and not immediately in the legatee. Gundry v. Henry, 65 Wis. 559; Melms o. Pfister, 59 Wis. 186. If the bequest is to several as tenants in common, the share of one who dies be. fore distribution will fall to his personal representatives. Marsh v. Wheeler, 2 Edw. Ch. 156. Where the legatees are ascertained, the legacy will vest at lestator's death, although the shares are to be paid as they arrive at the age of twenty-one, Emerson v. Cutler, 14 Pick. 108; even though the legatee dies before that time, Putnam v. Putnam, 4 Bradf. 308; or where the residuary gift is to take effect after a life estate. Williams v. Freeman, 98 N. Y. 577. So, a general residuary bequest to ascertained persons will vest at testator's death, although it may take effect as to certain property only on the happening of a contingency (which occurred after the
residuary legatee's death). Clapp v. Stoughton, 10 Pick. 462; Matter of Mapes, 20 N. Y. Supp. 69; Vandewalker v. Rollins, 63 N. H. 460 ; Wil. liams o. Kibler, 10 S. C. 414. But if the bequest is to a class to be ascer. tained by survivorship or otherwise at a future time, it will not vest until that time, Matter of Denton, 137 N. Y. 428; Tillman v. Sullivan, 63 How. Pr. 355 ; or will vest at testator's death, subject to be divested on the contingency provided for, Bowditch v. Ayrault, 138 N. Y. 222; and the income, if not otherwise disposed of, must be invested and accumulate until then. Hurford o. Haines, 67 Md. 240.
Joint tenants-Surrivorship. A residuary bequest to several jointly does not lapse by the death of any of them before the testator, but the survivors take the whole. See p. 507, note, ubi supra ; Smith v. Curtis, 5 Dutch. 345 ; Robinson v. Martin, 2 Yeates 525 ; Estate of Gross, 10 Pa. St. 360. So, if the residue is to be divided equally between two classes, each class will take the effect of these statutes, see Burgits own share, if any of the class sur- hart v. Turner, 12 Pick. 534 ; Elliot vive the testator, Markells v. Markells, v. Carter, Id. 436 ; Gilman v. Morrill, 32 Gratt. 544; Holbrook v. Harrington, 8 Vt. 77 ; Den v. Van Riper, 1 Harr. 16. Gray 102; whether members of the (N. J.) 7; Boston Franklinite Co. v. class drop out by lapse or by ademp- Condit, 4 C. E. Gr. (N. J.) 394. But tion (the testator paying them off and they seem not to apply to personal taking their release). Gray v. Bailey, property given to two or more without 42 Ind. 349. But after actual convey. words of severance. Gilbert v. Richance to them of the land devised, they ards, 7 Vt. 203 ; 2 Kent. (5th ed.) 351 ; will hold as tenants in common. How Yard's Appeal, 86 Pa. St. 125. 0. Waldron, 98 Mass. 281. On the The following words have been held other hand, shares bequeathed to several to create a tenancy in common: “To be by name go to them as tenants in com. equally divided between them,” Grismon, and not as joint tenants, and are wold v. Johnson, 5 Conn. 363; Briscoe subject to lapse. Hand v. Marcy, 1 0. McGee, 2 J. J. Marsh. 370 ; PartStew. (N. J.) 59 ; Ward v. Dodd, 14 ridge v. Colgate, 3 Harr. & McH, 339 ; Id. 414; Langstroth v. Golding, Id. 49 ; Whiting v. Cook, 8 Allen 63; Walker Garthwaite o. Lewis, 10 C. E. Gr. 351 ; v. Dewing, 8 Pick. 520; Emerson v. unless the intention of the testator is Cutler, 14 Pick. 244 ; Bender's Appeal, plainly to give to them as a class, e. g., 3 Grant Cas. 210; Evans v. Brittain, 3 in a devise to two nephews (by name) of Serg. & R. 135 ; Allison v. Kurtz, 2 one share of the residue, “to be paid Watts 185 ; Drayton 0. Drayton, 1 them when they come of age.” Put- Desaus. 329; “in equal shares," Dunn nam v. Putnam, 4 Bradf. 308. See too, V. Bryan, 38 Ga. 154; Roberts v. Loring v. Coolidge, 99 Mass. 191. Brinker, 4 Dana 573 ; Gilpin v. Hol
By statute, in many states, a devise to lingsworth, 3 Md. 190 ; Westcott v. two or more persons, unless otherwise Cady, 5 Johns. Ch. 334 ; "share and expressed creates a tenancy in com- share alike,” Irwin v. Dunwoody, 17
Illinois (1891 R. S. c. 30, $ 5), Serg. & R. 61; Bunch v. Hurst, 3 Iowa (1888 Code, $ 1939), Maine (1883 Desaus. 288 ; “ as a common stock,” R. S. c. 73, § 7), Maryland (1888 P. G. Dickson v. Dickson, 70 N. C. 487 ; "as L. Art. 51, § 13), Massachusetts (1882 joint stock, to be equally divided,” P. S. c. 126, § 5), Michigan (1882 An. Weir v. Humphries, 4 Ired. Eq. 264 ; Stats. $ 5560), Minnesota (1891 Stats. “to share alike," Witmer v. Ebersole, $ 3958), Mississippi (1892 An. Code, S 5 Pa. St. 458; “to A., B., and C., her 2441), Nero Hampshire (1891 P. S. c. part to her children,” Martin o. Smith, 137, § 14), New Jersey (1877 Rev. p. 5 Binn. 16; to several by name and 167), New York (1 R. S. 727, § 44), their heirs forever," Harrison v. Botts, Rhode Island (1882 P. S. c. 96, § 2). 4 Bibb. 420 ; McPherson v. McPherson, Other states have abolished the right of Addison 327; or to several “their heirs survivorship between joint tenants. and assigns,” Sacket v. Mallory, 1 Met. Indiana (1894 Rev. $ 3341), Kentucky 355 ; Dott v. Willson, 1 Bay (S. C.) (1887 c. 63, § 13), North Carolina (1883 457 ; or
“ to become the joint propCode, 1326), Pennsylvania (1833 Purd. erty of A. and B. . not to be disDig. 939), South Carolina (1882 G. S. posed of, but pass to their heirs," Bond $ 1851), Tennessee (1884 Code, S 2817), v. McNiff, 38 N. Y. Super. Ct. 83 ; or Virginia (1887 Code, $ 2430), West Vir. “equally to A. and his heirs and to ginia (1891 Code, c. 71, § 18). As to B. and his heirs, jointly to be enjoyed
by them, their heirs and assigns for
Burke v. Stiles, 65 N. H. 163. ever.” Evans v. Brittain, 3 Serg. & R. So, a provision for the legatee's “ main135; or to “ A. and B. jointly, their tenance out of the estate." Izard 0. heirs and assigns forever.” Davis o. Izard, 2 Desaus. 308. So, the executor Smith, 4 Harring. 68. But where the should take from the residuary legatee testator directs a division of his prop- a refunding bond to secure an annuity, erty between six children in equal parts, although he has reserve funds for the A.'s share to be invested and the in- purpose. Nutter v. Vickery, 64 Me. come paid her for life, and on her death 490. So, the general legacies take prethe principal paid to her children, A. cedence of a particular residuary gift, does not become a tenant in common such as a life estate in all of the propwith the others, and cannot maintain a erty, Lepard v. Skinner, 58 Conn. suit for partition. Mead v. Jennings, 329 ; or of the residuary legatee's right 46 Mo. 91.
to lapsed and void legacies. Wetmore On the other hand, cases are numer- 0. St. Luke's Hospital, 56 Hun 313. ous in which the residuary legatees The residue may, however, be paid are held to take as a class. In these over before particular legacies, if the cases there is no lapse by the death of estate is ample and the intention of the one or more members of the class, but testator is clear, Vanderpool 0. Davensurvivors take the entire residue. port, 2 Gr. Ch. 120; e. g., where the Warner's Appeal, 39 Conn. 253 ; Bolles residue is clearly ascertained, and the 0. Smith, Id. 217; West v. West, 89 time for payment of the particular Ind. 529; Holbrook v. McCleary, 79 legacies is postponed by the will, Ind. 167. So, even a gift by name to Thyng v. Moses, 65 N. H. 106 ; King v. testator's brother and sister, Loring v. King, 14 R. I. 143 ; and the residuary Coolidge, 99 Mass. 191 ; or to a sister- shares may be payable at different in-law and her husband and child, times, e. g., as the several beneficiaries Mann v. Hyde, 71 Mich. 278 ; and there arrive at a certain age. Alsop o. Rusmay be an express limitation over to the sell, 38 Conn. 99. But until the residue survivors. Dunn v. Bryan, 38 Ga. 154. has been safely ascertained it seems See, too, p. 507, ubi supra.
that the court cannot make an allowResidue-After debts and legacies. On ance to the wife and children out of the its face the term “residue "imports the residuary income bequeathed in trust right of the debts and legacies to be first for their support. Jasper v. Jasper, 17 paid. It is the executor's duty to re- Or. 590. serve sufficient funds for the payment In general, the residue is ascertained of debts before making any payment to upon the settlement of the final account, the residuary legatee. Lewis v. Carson, and is not afterward chargeable with 93 Mo. 587. And the debts must be accruing interest on debts that are left paid, at the expense of the residue, out unpaid. Leahy v. Cardwell, 14 Or. of the property disposed of by the will 171. The residuary legatee may bring rather than out of property (after-ac- suit on the executor's bond. Williams quired land) as to which the testator 0. Cushing, 34 Me. 370 ; and may sue died intestate. Hayes v. Jackson, 6 the executor even before settlement of Mass. 148.
the estate on proof of assets in hand and So, particular legacies must be paid payments made to other residuary legabefore the residuary bequest, although tees. Smith v. Lambert, 30 Me. 137. they follow it in order of statement in The residuary property may be turned the will. Phelps v. Robbins, 40 Conn. over by the executor to the residuary
devisee on his giving sufficient security for the payment of the general legacies. Chandler v. Batchelder, 61 N. H. 370. See Vol. I., p. 26, ubi supra.
On the other hand, the residuary legatee is not entitled to the possession of the property, where it is subject to a prior life estate, Matter of Aymer, 5 Dem. 428 ; or to a subsequent right in remainder, Estate of Hamilton, 13 Phila. 200; except on proper security.
Residuary clause-Restrictive words. “No particular form of words is necessary to constitute a residuary legatee ; any expression is sufficient from which the testator's intention is discernible that the person designated should take the surplus." Woerner on Admn. $ 462. The word “residue” may itself be construed to refer to the general surplus, Varden v. Hawkins, 59 Miss. 406 ; or to the surplus of a particular fund mentioned in the will. Stannard v. Barnum, 51 Md. 440 ; Fisher 0. Wister, 154 Pa. St. 65. So, the gift of “other property not herein otherwise disposed of” may be confined by the context to personal property. Newell v. Toles, 17 Hun 76; Peay v. Barber, 1 Hill (S. C.) 97. " The residuary clause" referred to in other parts of the will is, strictly speaking, the general residuary clause only, Frame v. Willets, 4 Dem. 368 ; so, a provision for gifts falling into “the general fund." Smith v. Edwards, 88 N. Y. 92. A gift of “all testator's property” is a residuary bequest, Harrison v. Jewell, 2 Dem. 37; Matter of Drowne, 1 Counoly 163; or “the surplus," Lamb v. Forsyth, 43 N. Y. S. R. 112; Delehanty v. St. Vin. cent's Orph. Asylum, 56 Hun 55; or all of his “ money,” Decker v. Decker, 121 Ill. 341 ; Estate of Miller, 48 Cal. 165 ; or certain “proportions” of his “worldly estate.” Wilbar v. Smith, 5 Allen 194. But “money” has been held not to include land in Stannard v. Barnum, 51 Md. 440. And “all ” of
some particular kind of property will be strictly construed. Dunlap 0. Ingram, 4 Jones Eq. 178. So, “money will not convey slaves. Dicken v. Cotton, 2 Dev. & B. Eq. 277. On the other hand, a gift to a residuary legatee” of “the property bequeathed to me by my brother,
and any other property that may come into my possession,” will cover everything. Laing v. Barbour, 119 Mass. 523. So, a clause is residuary which provides that if the estate is more than enough to pay the legacies, the excess should be paid proportionally to them. Prescott v. Prescott, 7 Met. 141 ; Bartlett v. Houdlette, 147 Mass. 25. A general residuary clause in à codicil will supersede that in the will. Seabrook 0. Seabrook, 1 McMullen 201. If, however, a codicil provides only that a fund in remainder, after a life estate, “ be disposed of in conformity with my said Will,” it will not create a residuary bequest where there is none in the will, but will leave the property undisposed of. Matter of Rosa, 60 Hun 420.
A residuary bequest may be confined by its terms to particular property only. So, it may expressly exclude particular persons that would otherwise be covered by its general terms, Dickison v. Dickison, 138 1. 541 ; or particular property, DeWitt v. Cooper, 18 Hun 67; and a fortiori, property otherwise specifically devised. Carter 0. Alexander, 71 Mo. 585. As to the effect of an enumeration of kinds of property, see Perry v. High, 3 Head 349 ; Jarnagin v. Conway, 2 Humph. 50 ; Godard v. Wagner, 2 Strobh. Eq. 1; Peaslee 0. Fletcher, 60 Vt. 188 ; Given v. Hilton, 95 U. S. 591 ; Lovering v. Lovering, 129 Mass. 97. So, particular legacies that fail, and would therefore fall into the residue, may
be excluded by express words, Hughes 0. Allen, 31 Ga. 483 ; or by such words
after fully carrying out the pro