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 (t), 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 dur, 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

(t) 5 Beav. 164.

(u) Welcden v. Elkington, Dyer, 358, b. 359.

(x) Paramour v. Yardley, Plowd. 539. See also Young v. Holmes, 1 Stra. 710.

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.

Executor taking

In Richards v. Brown (b), a testator bequeathed to a Miss Wade, whom he appointed executrix, his household furniture for her life, and after her death to Sarah Chapple: possession The testator, at the time of his decease, which took place in the year 1825, was indebted in 1007. on a

(y) 3 B. & Adol. 675.

(2) See also Fenton v. Clegg, 9 Exch. 680.

chattels

of be

queathed to him

for life.

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.

Executor's assent

If an executor legatee renounce probate, his assent to his own legacy will be ineffectual; and if he take the thing bequeathed to his own legacy without the permission of the administrator cum testaafter renouncing. 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 Assent of one of legacy will vest the complete title in him (a): And if 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).

SECTION IV.

At what time legacies are to be paid: and herewith of bequests for life, with remainder over.

Legacies gener

On the same principle that the assent of an executor to a legacy is necessary, he cannot, before a competent time has ally payable at elapsed, be compelled to pay it. The period fixed by from testator's the civil law for that purpose, which our courts have also prescribed, and which is analogous to the Statute

the end of a year

death.

(c) Broker v. Charter, Cro. Eliz. 92. And by reason of stat. 20 & 21 Vict. c. 77, s. 79 (ante, p. *233), the law is now the same, where the legatee, being one of several executors, renounces, and the others prove the will.

(d) 1 Roll. Abr. 618, Devise, (B.) pl. 2, 3. Townson v. Tickell, 3 B. & A. 31, 40. Ante, pp. *819, *1231. (e) Ibid.

of Distributions (as will hereafter be seen), is a year from the testator's death,19 during which it is presumed that the executor may fully inform himself of the state of the property (f). But within *that period he cannot be compelled to pay 20 a legacy, even in a case where the testator directs it to be discharged within six months after his death (g).

This allowance, however, to executors is merely for convenience, in order that the debts of the testator may be ascertained, and the executors made acquainted with the amount of assets, so as to be able

to make a proper distribution of them (h); Therefore, if the state of the testator's circumstances be such as to enable the executors to discharge legacies at an earlier period, they have authority to do so (¿).21