that which a testator owned at the time of its execution. Of course, as every parcel of land has in it the element of locality, it could be labelled. And if the owner gave a particular lot to A., and another to B., and the "residue" to C., that which was devised to the last, though in general residuary words, was as specific as the lots which, by special mention, were devised to A. and B. Modern legislation, both in England and in this country, has enabled a testator, by appropriate words, to make a devise include all the land which he owns at the time of his death. At once a great judicial controversy arose in England, whether a residuary devise was any longer specific. There are many contradictory decisions; but it is now settled by the appellate court that a residuary devise is still specific. The practical result is, that in case of a deficiency of the general personal estate, specific legacies, specific devises of land, and residuary devises contribute ratably.2 In England it is held that the rule of contribution applies as between a pecuniary legatee (not specific) and a residuary devisee, on the general ground that "every will ought to be read as in effect embodying a declaration by the testator, that the payment of his debts shall be, as far as possible, so arranged as not to disappoint any of the gifts made by it, unless the instrument discloses a different intention." 3 In the absence of statutes, the probate court does not have the power to take the land of a testator for the payment of debts. This is a power vested in courts of equity, as engaged in the administration of trusts. In this country, probate courts have statutory powers to order the sale of land to pay debts. This extension of power to the probate courts does not deprive the equity courts of their jurisdiction, without words in the statute to that effect. Moreover, if sufficient power were given to executors in the will, they might sell the land without resort to a court, and avoid the delay and expense of a proceeding under the statute. The New York statute is found in the Code of Civil Procedure. The proceedings may be had at any time within three years after letters granted, on the petition of an executor or administrator, or a creditor. The proceedings cannot be resorted to after three years. Other methods must be adopted. Nor are they to be used in case of an express charge of debts upon land, as the jurisdic1 Hensman v. Fryer, L. R. 3 Ch. App. 26 Beav. 465; Bethell v. Green, 34 Id. 420; Lancefield v. Iggulden, L. R. 10 Ch. 302. App. 136. 2 Id., see also Gervis v. Gervis, 14 Sim. 654; Eddels v. Johnson, 1 Giff. 22; Opposing cases are Rotheram v. Rotheram, 8 Tombs v. Roch, 2 Colly. 490, 502, adopted in Hensman v. Fryer, L. R. 3 Ch. App. 420, 426. tion of courts of equity is ample.1 (a) The result of this legislation is, that the debts of a testator are a statutory lien upon the land for three years; on the expiration of that period the lien ceases. As this is a special statutory proceeding, great care must be taken to observe all the requirements essential to the jurisdiction of the court, as otherwise the proceeding may be a nullity. The mode of proceeding after three years is an action to make heirs and devisees liable to the extent of estates or interests descended or devised to them. The action is to be brought jointly against all the heirs or devisees.2 The amount which each is to pay is apportioned amongst the various heirs or devisees, according to the value of the real property descended or devised to them.8 (3) Payment of legacies. This is a matter that is only applicable to an executor, or to an administrator with the will annexed, although questions of a similar nature may be brought before an administrator in respect to distributive shares in the intestate's estate. It is a general rule that a legacy is not payable until one year after the testator's death. (b) It can, however, be made payable earlier by the direction of the testator, as well as at a period more remote. If a legacy be payable when the legatee shall be twentyone, and the legacy be with interest before that time, it is payable at once to his executor, upon his death; otherwise, payment must be deferred until the legatee would have attained twenty-one, had he lived. A different rule prevails when the legacy is given to B. in case A. dies before the prescribed time. Upon A.'s death the legacy is at once payable to B. If an absolute vested bequest be given to A., payable at twenty-five, the direction to postpone payment is inconsistent with ownership, and will be disregarded.8 The currency in which a legacy is payable, where the will is silent, is usually that of the country where the testator resided, though the legatee reside in a foreign country. If payable in produce,e. g., sugar, and the executor does not pay, the value must be awarded.10 Specific bequests should be delivered in their existing form, and 1 Code of Civ. Pro. §§ 2749-2801. 2 Id. §§ 1843-1860. 8 Id. § 1847. Hill v. Chapman, 1 Ves. 405, 407. • Crickett v. Dolby, 3 Ves. 10, 13. (a) See Matter of Gantert, 136 N. Y. 106; Matter of Hesdra, 2 Connolly, 514. (b) In New York the time is one year Rocke v. Rocke, 9 Beav. 66; In re Jacob's Will, 29 Id. 402. 9 Saunders v. Drake, 2 Atk. 465. See also Pierson v. Garnet, 2 Bro. C. C. 38; Cockerell v. Barber, 16 Ves. 461. 10 Symes v. Vernon, 2 Vern. 553. from the grant of letters. Code of Civ. Pro. § 2721. not sold, unless a sale is necessary for the payment of debts.' If the thing described is not owned by the testator, the executor should obtain it at the expense of the general estate. The executor should not deliver the things bequeathed to the legatee until debts are paid, for he may be personally answerable to creditors for their value, should there be a deficiency, though he acted in good faith, and the deficiency was occasioned by later events which he had no reason to anticipate.? Where several articles from a mass are bequeathed, such as six horses out of twenty, the legatee will have a right of selection; but having once selected, his interest is fixed, and he cannot cancel his choice and choose anew.4 3 In order to avoid some of the questions above referred to, the executor, on paying a legacy, may take security from the legatee to refund, if that should become necessary in order to pay debts.5 Payment of a legacy, etc., to an infant, is especially provided for in New York, by § 2746 of the Code of Civil Procedure. Interest on legacies. This is a subject of much practical importance. As a rule, interest will not begin to run until a year after the testator's death, according to the rules under which interest is regularly allowed, as there is no delay until that time. Interest will, however, be payable in special cases before that time, so that it will only be necessary to consider the special cases. In some instances it is not material that the will is silent on the subject of interest. In these instances, all the circumstances are taken into account, in order to arrive at a just conclusion.8 The payment of interest may be implied under the following circumstances: (A) When the legacy is charged upon land. Thus it has been held that if a testator give a legacy charged upon land which yields rents and profits, and no time of payment be mentioned, the legacy shall carry interest from the testator's death. A legacy charged on land, though payable by express words at a future day (say the death of X.) may still draw interest before it is due, as being in the nature of a burden or lien upon the land.9 In some cases the interest, though allowed, will not be raised until the future day arrives, e. g., the death of a life tenant.10 (a) The 507. 1 Clarke v. Earl of Ormonde, Jacob, 108. 2 Spode v. Smith, 3 Russ. 511. 8 Jacques v. Chambers, 2 Colly. 435. Littledale v. Bickersteth, 24 W. R. 5 Cases in which security has been required by the court are, Dowley v. Winfield, 14 Sim. 277; Moffat v. Burnie, 16 Beav. 298; Cuthbert v. Purrier, 2 Ph. 199. 217. 6 Donovan v. Needham, 9 Beav. 164. 8 Askew v. Thompson, 4 Kay & J. 620. Earl of Milltown v. Trench, 4 Cl. & F. 276. 10 Pennefather v. Bury, 9 Ir. Eq. 586. (a) In re Waters, L. R. 42 Ch. D. 517. general rule is, that where a vested legacy is charged on land, interest will run from the time the legacy is "raisable" out of the land, unless there is some express provision concerning interest. If the bequest be contingent, interest does not attach until the contingency happens, unless there be express words allowing it.1 (B) When given by a parent, or one standing in the place of a parent. A legacy of this sort bears interest from the death of the testator, on the supposition that it is intended for maintenance.2 (a) This rule applies to one who puts himself in the place of a parent. It is not extended to adults. (b) It will be applied to infants, even though the legacy be payable at a future day, e. g. at twenty-one,- if there be no provision for maintenance.5 The same rule is applied to bequests if children or grandchildren, etc., attain twenty-one, with gifts to others in case they die under that age. On the other hand, if there be an express provision for maintenance, a legacy payable at a future day will not bear interest until the time of payment. The true theory of the whole subject is, that there is a presumption that a parent would not leave a child without support, but that this presumption may be rebutted by evidence to the contrary.8 (c) The rule of maintenance has not been extended in the English cases to illegitimate children, unless the father has apparently assumed an obligation towards them by placing himself in loco parentis. In that case, interest for maintenance is allowed.10 The decisions on this point seem to rest on too narrow a basis, since, as a father of an illegitimate child is under a natural duty 1 Gillman v. Gillman, 16 Ir. Chan. 461. See Spurway v. Glynn, 9 Ves. 483. 2 Becleford v. Tobin, 1 Ves. Sr. 308; Crickett v. Dolby, 3 Ves. 10. 8 In re Rouse's Estate, 9 Hare, 649. Perry v. Whitehead, 6 Ves. 544. 10 Russell v. Dickson, 2 Dr. & War. 133; Rogers v. Soutten, 2 Keen, 598. 8 Wilson v. Maddison, 2 Y. & Colly. In Russell v. Dickson, supra, the court Ch. C. 372. laid great stress upon the fact that the 4 Raven v. Waite, 1 Swanst. 553; Wall testator had, in his will, called the legatee v. Wall, 15 Sim. 513. 6 Heath v. Perry, 3 Atk. 101. 6 In re Bowden, 6 L. J. N. s. Ch. 146; Mills v. Robarts, 1 Russ. & M. 555; Leslie v. Leslie, Lloyd & Goold, 1. 7 Wynch v. Wynch, 1 Cox Eq. 433. (a) See Brown v. Knapp, 79 N. Y. 136; Lyon v. Industrial School Association, 127 N. Y. 402; Stout v. Stout, 44 N. J. Eq. 479; Davison v. Rake, Id. 508. (b) Thorn v. Garner, 113 N. Y. 198. (c) When, by statute, legacies are made payable at a certain time,-e. g. one year his natural daughter Mary Sheehan, while in the codicil he called her his daughter Mary Dickson. This showed an intent to stand in loco parentis, and to elevate her to his own rank in society. This was sufficient to justify interest for maintenance. after the granting of letters testamentary, or of administration, interest does not begin to run until one year from the granting of letters. Matter of Accounting of McGowan, 124 N. Y. 526; Wheeler v. Hatheway, 54 Mich. 547. to support him, it may fairly be presumed that he intends to do so, when he recognizes that duty so far as to give him a legacy. There is no interest on a sum paid into court, unless the amount paid in yields interest, in which case the legatee will have the interest which is earned.1 (a) Interest on an annuity commences from the testator's death.2 (b) A legacy to a wife (not being given as a jointure) does not bear interest until a year after the testator's death.3 By another Duty on legacies and successions. It has long been the policy in England to impose a duty upon legacies, and in later years a duty or tax on "successions" has also been levied. The statute on this subject also affects the duties on legacies. enactment, power is given to representatives in certain cases to commute legacy or succession duties presumptively payable. These statutes have been very fruitful in litigation, and there is a large number of decisions upon the subject. The legislature of New York has recently adopted this policy and established both legacy and succession duties in a single statute. (c) Reference to the English decisions will probably be found useful in discussing questions that may coine before the courts in construing similar laws elsewhere.6 (4) Distribution of the estate. Where there is no will, the distribution of the estate among the next of kin requires but brief mention, as the principles governing the payment of legacies largely apply. Distribution is usually ordered on the final accounting among the parties entitled under the Statute of Distributions, already considered. It is sometimes directed before the time for creditors to present their claims has expired, where the debts of the decedent can be secured by refunding bonds given by the distributees. The details of this procedure must be sought for in local statutes. In case a distributee is an infant, it is necessary in many States to appoint a special guardian or guardian ad litem to represent him on the accounting and distribution. In some States his share is paid to his general guardian, or paid into court until he arrives 26. 1 Maxwell v. Wettenhall, 2 P. Wms. Duty Act," 1853. See also 44 & 45 Vict. c. 12; 51 & 52 Id. c. 3; 52 & 53 Id. c. 7. 5 43 Vict. c. 14, § 11. 2 Gibson v. Bott, 7 Ves. 89, 96. 8 In re Whittaker, L. R. 21 Ch. D. 657; In re Percy, 24 Id. 616. 292. 16 & 17 Vict. c. 51, "Succession a Johnson v. Moon, 82 Ga. 247. See Shelford: Succession, Probate, and Legacy Duties (1861); and Trevor : Taxes on Succession (1881). (c) Laws of 1892, ch. 399, repealing (b) See Matter of Stanfield, 135 N. Y. the former statutes and constituting the present law upon the subject. |