8

Legacies Free of Duty.

let them, if possible, be written upon the same paper as the will, and then the beginning will be brief and simple, and may be commenced thus: "This is a codicil to the foregoing will of me, John Brown." But if it be made upon a separate paper, it should refer to the date of the will, in this manner : "This is a codicil to the will of me, John Brown, of the city of Bath, grocer, and which will bears date, &c. I give unto my son Thomas Brown, the sum of one hundred pounds, in addition to the legacy bequeathed to him by my will. I revoke the legacy of fifty pounds given to Thomas Smith by my said will. In all other respects I ratify and confirm my will, and declare that this shall be taken as part and parcel thereof." The remainder will be similar to the will, except that the attestation clause will begin after this manner: "Signed by the testator as a codicil to his will."

The testator should always consider whether he would desire to have any of the bequests paid free of duty; and if so, he has merely to add after the legacy the words "free of duty," or any other expression of like purport. Thus: "I bequeath to Sarah Hart the sum of five hundred pounds, free of legacy duty." The result of this is, that the duty is paid by the residuary legatee, instead of by the person to whom the legacy is given. Such duty may, however, be deducted in the residuary account, just in the same way as the legacy itself; that is, in the present instance (the legatee being a stranger in blood), five hundred and fifty pounds would be deducted, instead of the five hundred.

Suppose the residuary legatee be likewise a stranger in blood, the result of giving the legacy free of duty is this, that the legatee is saved fifty pounds-the Board lose five poundsand the residuary legatee pays forty-five. We are desirous to be understood on this point, lest any may suppose that, by giving a legacy free of duty, the bequest escapes the payment of duty altogether. This, it will be seen, is not the case; the burden is merely shifted from one person to another, or rather to two others.

An executor is not an incompetent witness, but it is always preferable that he should not be one, unless it be a matter of emergency. But if he, or any other person, be a legatee, and attest the will, it does not affect its validity; but it has the effect of depriving the attesting witness of his legacy, therefore it will be well for both testators and legatees to keep this point in remembrance.

Another piece of advice we think worth imparting in this chapter is the following,-That it would oftentimes be advisable to give the residuary legatee a legacy equivalent to almost the sum the testator supposes the residue of his estate will amount to; and then, in the event of depreciation of assets, such legacy would abate rateably with the others, instead of having to bear the whole diminution.

Let us make our meaning clear by supposing a case. The testator, then, we must assume, believes his estate will be worth about six thousand five hundred pounds after all liabilities are discharged. He gives to four persons a thousand pounds each, and to the fifth, for whom he may have a stronger regard, he bequeaths the residue. Now, let us suppose that, by reason of decrease in the value of his investments, or by increase of liabilities after making his will, or from some other cause, the distributable assets are reduced to four thousand pounds, the effect will be that the four legatees will receive a thousand pounds each, whilst the fifth, or residuary legatee, will have nothing. Had a thousand pounds been given to the last person, as well as the residue, then each of the five would proportionally bear the loss-each being entitled to the sum of eight hundred pounds only, instead of four getting a thousand pounds each and the fifth nothing.

A bequest to a charitable institution must be made with some degree of caution, otherwise it will be void, as coming within what are usually known as the Statutes of Mortmain. These are a variety of Acts of Parliament, made at different times, commencing as far back as seven hundred years ago, or thereabouts, and altered, amended, and strengthened from that period down to almost the present time by numerous supplemental Acts, the object of which has been to fetter, and, with few exceptions, to prohibit, the disposal of lands and tenements by will in favour of religious establishments or charitable institutions. A legacy to even an hospital would be void if directed to be paid out of the proceeds of a sale of real estate, or lands or tenements of any kind; hence it must be borne in mind that special caution is necessary in giving a legacy for a charitable or religious purpose.

In the reports of charitable societies, it is not unusual to find a printed form of bequest as special instructions tc intended donors. The following we take from a printed report now before us; but, not wishing to be invidious, we omit the name of the institution :

ΙΟ

Alienation in Mortmain.

"I bequeath to the treasurer for the time being of the Society, Bath, in aid of that institution, the sum of one hundred pounds; for which the receipt of such treasurer shall be a sufficient discharge; such legacy to be paid out of such part of my personal estate as the law permits to be appropriated by will to charitable purposes."

A legal commentator says, alienation in mortmain (in mortua manu) is an alienation of lands or tenements to any corporation, sole or aggregate, ecclesiastical or temporal. But these purchases having been chiefly made by religious houses, in consequence whereof the lands became perpetually inherent in one dead hand, this has occasioned the general appellation of mortmain to be applied to such alienations, and religious houses themselves to be principally considered in forming the Statutes of Mortmain; in deducing the history of which statutes, it will be matter of curiosity to observe the great address and subtle contrivance of the ecclesiastics in eluding from time to time the laws in being, and the zeal with which successive Parliaments have pursued them through all their finesses; how new remedies were still the parents of new evasions, till the Legislature at last, though with difficulty, has obtained a decisive victory.

As a final remark on the Statutes of Mortmain, we will observe that money, or even land, may be given to charitable institutions during the life of the donor; but under these limitations :—If it be a gift or conveyance of land, it must be done by deed indented, executed in the presence of two witnesses, twelve calendar months before the death of the donor, and enrolled in the Court of Chancery within six months after its execution; and such gift must be made to take effect immediately, and be without power of revocation. But stocks in the public funds may be transferred within six months previous to the donor's death. All other gifts are by statute declared to be void, except only as regards the two universities, their colleges, and the scholars upon the foundation of the colleges of Eton, Winchester, and Westminster.

In the forms of will which will be found hereafter, the attestation clause, and the signatures of the testator and two witnesses, will appear in the relative positions they usually occupy in the real will. These forms are not inserted simply as precedents, but they serve as the basis upon which the various illustrations of the working out of the different accounts will be demonstrated.

The way in which a will may be revoked is described in the Wills Act, 7 Will. IV., as follows:

"Sec. 18. And be it further enacted, that every will made by a man or woman shall be revoked by his or her marriage (except a will made in exercise of a power of appointment, when the real or personal estate thereby appointed would not, in default of such appointment, pass to his or her heir, customary heir, executor, or administrator, or the person entitled as his or her next of kin under the Statute of Distributions).

“Sec. 19. And be it further enacted, that no will shall be revoked by any presumption of an intention on the ground of an alteration in circumstances.

"Sec. 20. And be it further enacted, that no will or codicil, or any part thereof, shall be revoked otherwise than as aforesaid, or by another will or codicil, executed in manner hereinbefore required, or by some writing declaring an intention to revoke the same, and executed in the manner in which a will is hereinbefore required to be executed, or by the burning, tearing, or otherwise destroying the same by the testator, or by some person in his presence, and by his direction, with the intention of revoking the same."

CHAPTER III.

THE ONEROUS NATURE OF THE DUTIES OF AN EXECUTOR, AND THE PERSONAL AND PECUNIARY RESPONSIBILITIES INCIDENT TO THE OFFICE.

THE duties of an executor and trustee are both onerous and responsible, and generally unremunerative. It therefore behoves a person, before he take upon himself such a burthen, to consider well whether he should discharge the obligations imposed upon him, or renounce. The course last indicated he is at perfect liberty to adopt ; but before coming to such a decision, he should thoughtfully consider whether, with a complete knowledge of his responsibility, he gave a special promise, or even allowed the testator to infer, that he would act as the executor and trustee of his will. If his conscience answer in the affirmative, then, notwithstanding any amount of trouble, or any degree of responsibility, which may be incident to the discharge of the trusts reposed in him, it is clearly morally incumbent upon him to prove the will and to accept its responsibilities and obligations. For it must be conceded that the

12

An Executor of an Executor.

obligation to fulfil a promise is not lessened by the circumstance that the person to whom it was made has ceased to exist.

as

We shall use the words "executors" and "trustees" synonymous; for although there is a clearly defined legal distinction between the one and the other, still we do not anticipate any confusion from employing the word executor to imply also trustee; especially when we consider that, as a general rule, the trustees are also the executors of a will, though the executors are not so frequently the trustees. The reason for this is apparent, when we bear in mind how often property is left to the widow for life, and then to her children. In such a case, the widow is usually, and, as we think, very properly, made an executrix jointly with the executors; but to constitute her a trustee would present the anomaly of a person being trustee for herself.

And, beyond this, there is sometimes a weighty objection to making a widow a trustee. Suppose she be appointed jointly with two others, and these should die, leaving her surviving, the whole trust fund would become vested in her by survivorship; and, if so disposed, she might then convert the trust fund to her own use, and possibly spend it extravagantly, instead of living on the interest and keeping the capital intact, to be divided amongst the children in pursuance of the directions in the father's will.

It may occasionally occur that a person may be quite willing, and even desirous, to undertake the responsibilities of an executor, yet a preliminary inquiry may disclose the fact that the testator was the sole, or it may be the surviving, executor of another person, who was also the sole, or the surviving, executor of a previous executor. With such a combination as this, the executorship of the testator would bring with it, unless great care were exercised, also the trouble and responsibility of several other executorships, of which, it may be, the executor of the last testator was ignorant at the time of his nomination. The acceptance of such an office would render imperative the investigation of, possibly, long and intricate accounts of previous estates, and may also involve questions of breaches of trust committed by previous executors, for whose acts the last would to some extent be liable: if not personally and pecuniarily, he certainly would be accountable to the length of assets which may come into his hands as the executor of an

executor or executors.