« ՆախորդըՇարունակել »
tors and trustees above-named 1001. each, as a small To his exceutors acknowledgment for the trouble they will have in the for their trouble. execution of this my will. And I desire my exe- Advance of cutors to give mourning and one year's wages, (over wages to serand above what may be due for wages) to all such my servants as they in their discretion may think proper. And I give to my said nephew J. A. --. to be paid to him at his age of 21; to D. C. -1.; to my nephew L. -.; to my niece E. F.-1. at and when she shall arrive at her age of 21, or be married ; to my nephew T. D.-I. at his age of 21, with
239. 7 Vez. juo. 421. It can hardly be neces
cessary to observe that the year given to executors does not prevent the vesting; 10 Vez. jun. 13. To prevent a lapse of a legacy, a will should be specially penned; 3 Atk. 572, 582. Thus, where testatrix forgave a debt, and desired her executors to deliver up the bond to the debtor, it was held it did not lapse by his death before testatrix; 1 Vez. 219. IP. Wms. 83. And if testator expressly directs that his legacies shall not lapse by the deaths of the legatees in his life-time, and then gives a legacy to B. his executors, and administrators, the legacy
will not lapse though B. die in testator's life; 3 Atk. 572. 3 Bro. C. C. 224. And where a legacy is given in consideration of paying an annuity, and the legatee dies in the testator's life-time, the annuity shall be a charge on the residuum, though the legacy lapsed; 1 Vez. 141. Oke v. Heath. If a legacy be given to several persons jointly, and one die in the testator's life-time, his legacy will go to the survivor : 2 Vern. 611. Ledsome v. Hickman. But wherever the words • equally to be divided,' or share and share alike' are introduced, the legatees take as tenants in common, and the share of one dying in the life of testator lapses, and of one dying after his death, goes to his representatives ; 3 Bro. C. C. 25, 324. i Vez. 542. 2 Atk. 221. Ambl. 136. 2 Bro. C. C. 220. 3 Bro. C. C. 455. 3 P. Wms. 115. 2 P. Wms. 347. id. 529.
With respect to the abatement of legacies, it may be useful to observe that in case of a deficiency, charity legacies must abate in proportion, and so must legacies given to executors for their trouble ; but small gifts to the poor of a parish have been considered as doles, and part of the funeral, and therefore exempt from this liability; but legacies to servants abate. Specific legacies do not abate with the pecuniary legacies, but abate inter se. If one makes a will and then a codicil, and gives legacies by both, on a deficiency they shall all come into average, but if one gives legacies, and apprehending there will be a surplus, gives further legacies out of the surplus, by his will or codicíl, the legacies first given shall have the preference ; 2 P. Wms. 23. Attorney General v, Robins.
interest in the mean time; to R. S. and J. F. -1. each, at their several ages of 21; and unto each of my nieces A. J. and J.S. -1.; unto E. and A. H. l.; unto J.B. H. B. and C. B. children of my niece D. N.-. each ; all the said legacies to be paid to the respective legatees within 12 months after my decease, (save and except those given to my said wife, my said trustees and executors, and my servants,
which are to be paid immediately after my death). Legacy settled. And I give unto the said Sarah S. the daughter of
the sum of -l. on the day of her marriage; and I give after her decease the said sum of -1.unto such child or children of her the said S. S. as shall attain the age of 21 years, to be divided among them (if more than one) in equal shares, and if but one, the whole to go to such one child as shall attain the said age. The portion or portions of such of them as may attain the said age, in the life-time of the said S. S., to be a vested interest or vested interests, though not payable till after her death, and the interest of the presumptive portions of such of her children as may be under the said age at the time of her death, or so much thereof as shall be thought necessary, to be ap. plied for or towards the maintenance and education of such infant child or children, until he, she, or they shall attain the said age; and the surplus dividends, or interest which may not be applied for that purpose to accumulate and go along with the original share or shares; or in case there shall be no such children who shall attain the said age, such accumulations to fall together with the principal my residuary personal estate.
And I give unto J. W. daughter of my said nephew the same not to be vested in or paid to her till she shall attain the age of 21 years, and not to bear interest in the mean time; I give unto J. R. daughter of
5001. but the same not to be vested in or paid to her till the age of 21 years, and not to bear interest in the mean time; I give unto J. B. eldest son of the said E. whom I have hitherto brought
up and taken under my protection, -1. over and above what he may participate in the-I. hereinbefore given among the children of the said e.
but the same not to be vested (5) in or paid to him till
(5) If a legacy be made payable on a certain day, and nothing is of interest upon expressed about interest, it is a general rule that the interest shall legacies. commence only from the time it is payable, though the legacy may vest from the death of the testator, so as to be transmissible to the legatee's representatives, in case he dies before it is payable; 2 P. Wms. 481, notes, 3 Vez. jun. 10. 4 Vez. jun. 1. But if the legatee die before the time of payment, as if it be made payable to the legatee at 21, and he die before 21, his representative must wait till he would have attained 21 if he had lived, unless it were directed by the will to be paid with interest ; 4 Vez. jun. 345. Where no time is appointed for the payment of a legacy, it is not necessarily payable till the expiration of a year after the testator's death, that being the time allowed the executor for getting in the effects, and therefore in such a case interest does not begin to be payable till the year is ex. pired ; 2 P. Wms. 26, 27. The old doctrine that the payment of interest should depend upon the funds' being productive or barren, is exploded ; and now, although the testator's property consists of stock producing a certain and regular interest, yet if the will is silent about interest none will arise upon a legacy given by him till the end of the year after his death; 7 Vez. jun. 96. But though this is the general rule, it does not apply where the legatee is the child of the testator, for in such a case the Court will order interest to commence immediately, since a parent is bound by the law of nature to provide a present maintenance for his own child; 3 Vez. jun. 13. 3 Atk. 60, 102; and it seems it was Alvanley's opinion, when Master of the Rolls, that illegitimate children were to be admitted to the same benefit ; 3 Vez. jun. 12; though Lord Hardwicke held a contrary opinion, on the principle of law, which recognizes no relationship in such a child; I Vez. 310. And Lord Eldon seemed to think that there ought to be something to shew that the testator means to put himself in loco parentis, 6 Vez. jun. Perry v. Whitehead, and see 4 Vez. jun. De Mazar v. Pybus. Lord Alvanley was also of opinion that a grandchild was to be comprized within the exception out of the above-mentioned general rule, and was to be put upon the same footing with a child in this respect; 3 Vez. jun. 12.
12. And the Court of Chancery has. in subsequent cases confirmed that opinion ; 5 Vez. jun. 194. But this favour does not extend to a nephew ; 3 Vez. jun. 12. Where a legacy is left to an infant, payable at 21, and bequeathed over on his dying before that age, and his death happens before his arriving at that age, the accumulated interest shall go to the representative of the deceased, and not to the remainder man'; 2 P. Wms. 421, note 1. 1 Bro. C. R. 82, 335. 3 Atk. 59. Where a father is living and able to maihtain his child to whom a legacy is bequeathed,
age of 21 years, and not to bear interest in the mean time; and unto such child or children of my
it has been held that the interest of the legacy shall not be applied to his maintenance during his nonage ; 3 Atk. 60, 399. But where the father is incompetent to maintain his child, he shall be main. tained out of the interest of his legacy, whether it be vested or contingent, and although the legacy be bequeathed over on the infant's dying before 21 ; 3 Atk. 60. 2 P. Wms. 21. Where a father provides any maintenance for a child, however small
, and however large the legacy, the inference in favour of interest is repelled. See Cas. temp. Lord Redesdale, Ellis v. Ellis, and note. Where the occasion is very pressing, the Court will sometimes break in upon the principal, but this is seldom and cautiously done; 4 Bac. Abr. 433. 3 Bro. C. R. 178. 2 P. Wms. 21. I Vern. 255. and it seems this can on no account be done if the legacy be devised over on the infant's dying before he comes of age ; 4 Bac. Abr. 4:42. Whether legacies are charged on real or personal estate, it is become the established practice of the Court to allow only 4 per cent. where no interest is directed by the will; 4 Bac. Abr. 440.2 Bro. C. R. 47. 3 Bro. C. R. 53.
If an annuity be given by a will without specification as to the times of payment, it shall commence in computation from the testator's death, and consequently the first payment shall be made at the expiration of the year after that event; but if a sum be directed to be placed out to produce an annuity, whether that is to be considered as a legacy payable at the end of the year, and to begin in computation only from that time, or as an annuity commencing from the testator's death, seems not to be fully settled , 7 Vez. jun. 96.
An executor used often to be embarrassed how to dispose of s legacy bequeathed to a minor. He runs a risk in paying it to the father, or any other relation of the infant, without the sanction of a Court of Equity; 4 Bac. Abr. 429. 1 Equ. C. Abr. 300. 3 Bro. C. R. 96, 186. 4 Burn. Eccl. C. 321. But by the Act of 36 Geo. 3. c. 52. s. 32. it is enacted, that where by reason of the iofancy of any legatee, the executor cannot pay the legacy, it shall be lawful for him to pay such legacy, after deducting the duty payable thereon, into the Bank of England, with the privity of the Accountant General of the Court of Chancery, to be placed to the account of the legatee, for payment of which the Accountant General shall give his certificate, on the production of the certificate of the Com. missioners of Stamps, that the duty thereon has been duly paid ; and such payment into the Bank shall be a sufficient discharge for such legacy; and when paid it shall be laid out by the Accountant General in the purchase of 3 per cent. consolidated annuities ; which with the dividends thereon shall be transferred or paid to the person entitled thereto, or otherwise applied for his benefit, on application to the Court of Chancery by petition, or motion in a summary way. But the executor is not bound to pay the legacy into the Bank till has expiration of a year after the testator's death.
said nephew I. J., (born in his life-time or after his death) as shall attain the age of 21 years, the sum of -l. to be divided between or among them, if more than one, share and share alike, and if but one then the whole to such one child as shall attain such
age, and not to bear interest in the mean-time. And after the decease of my said neice I. M., I give unto such child or children of her, now in being or hereafter to be born, as shall live to attain the said age of 21 years, the sum of -1. the same to be divided between or among them (if more than one), share and share alike, and if but one then the whole to such one child as shall attain the said age, and not to bear interest in the mean-time, but the portions of such of them as shall attain the age of 21 years in his lifetime, shall be vested interests, though not payable until after her death, and after the decease of my said niece I. M.. I give the sum of -. to such child or children of her now in being, or hereafter to be born, as shall attain the age of 21 years, the same to be divided between or among them if more than one, share and share alike; and if but one, the whole to such one child as shall attain the said age, and not to bear interest in the mean-time; but the portions of such of them as shall attain the said age in her lifetime, shall be vested interests, though not payable till after her death. And I give after the decease of the said E., unto such child or children of him the said E., born in his life-time, or after his decease as shall attain the age of 21 years, -l. the same to be divided among them, if more than one, in equal shares, and if but one, the whole to go to such one child as shall attain the said age, and not to bear interest; save that in case of the death of the said E., having a child or children under the
years, my will is that my said trustees or trustee for the time being shall and may pay and apply any sum not exceeding the sum of 501. per annum, by equal quarterly payments, for and towards the maintenance and education of such infant child or children, until
age of 21