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[As regards a contingent legacy, if a legacy be left to anyone, when he shall attain, or if he attain, the age of twenty-one, and he die before that time, it is a lapsed legacy, even though he survive the testator (p); but a legacy to one “ to be paid ” when he attains the age of twenty-one years, is a vested legacy,--an interest, that is to say, which, as to title, commences in presenti, although it be solvendum in futuro. And if the legatee in such a case die under age, his representatives shall in general receive it out of the testator's personal estate (9); but if the legacy is charged upon real estate, it shall lapse for the benefit of the heir, unless there be something further in the will, sufficient to show a contrary intention (r). And note, that if a legacy, due immediately, be charged on land, interest (at the rate of 41. per cent. per annum) will be payable thereon from the testator's death (s). But if not so charged, it will only carry interest from the end of the year after the death of the testator ; for that is the time generally allowed by law for the payment of legacies (t). On the other hand, a specific legacy of an income-bearing fund (say, of stock) carries with it the dividends or income as from the death (u).]
There is another species of contingent legacy; as where personal estate is bequeathed to A., and upon his dying without issue, then over to B. This expression was formerly considered as importing an indefinite failure of issue ; and the bequest over, as being too remote and tending to a perpetuity, was consequently held to be void (2). But a contrary rule was established by the Wills Act, 1837, s. 29, as more fully explained in the chapter on Devises (y) ;
(p) Dyer, 59; 1 Eq. Cas. Ab. 295 ; 2 Bl. Com. 513.
(9) 1 Eq. Cas. Ab. 295.
(1) Duke of Chandos v. Talbot (1731), 2 P. Wms. 601 ; Co. Litt. by Butl. 237 a, note (1).
(8) 2 Bl. Com. p. 513.
(1) Maxwell v. Wettenhall (1722), 2 P. Wms. 26, 27.
(u) Kirby v. Potter (1799), 4 Ves. 751; Barrington v. Tristram (1801), 6 Ves. 349.
(x) Fearne, Cont. Rem. 485 (9th edit.).
(y) Vide supra, vol. 1. p. 373.
for by that rule, this expression is now to be construed (unless a contrary intention appear on the face of the will) as importing a failure of issue in the lifetime or at the death of A. And such a bequest over as that just mentioned will, consequently, now be good.
7. (When all the debts and legacies are discharged and paid, and the duties on the legacies are also paid, and the residuary accounts have been duly passed by the executors, then the surplus, or residue (if any), must be paid to the residuary legatee, appointed by the will; or if there be none, then to the next of kin of the deceased. For although it was long a settled notion, that such surplus devolved to the executor's own use, by virtue of his executorship (2), that doctrine was always understood as subject to this restriction, that wherever there was sufficient, on the face of the will, to show that the executor was not intended to have the residue, it should go to the next of kin (a). And it has now been provided generally, by the Executors Act, 1830 (6), that unless it shall positively appear by the will that the executor was intended to have the residue, he shall be deemed to be a trustee of it for such persons (if any) as would have been entitled (had the testator died intestate) to claim it as his next of kin ; so that now the executor (or administrator) is entitled to such residue or surplus, only in the absence of any next of kin (c).
8. The Statute of Distribution (d) was passed with reference to the case of an intestacy, and to provide for the residue of the estate which remained after payment of the dead man's debts ; for here, too, it was formerly much doubted whether the administrator could be compelled to make any distribution of the surplus (e). By that Act,
(z) Perkins, 525.
(a) 11 Geo. 4 & 1 Will. 4 (1830), c. 40.
(6) 11 Geo. 4 and 1 Will. 4, c. 40.
(c) Camp v. Coe (1886),31 Ch. D. 460.
(d) 22 & 23 Car. 2 (1670), c. 10. (e) Godolph. pt. 2, ch. 32.
[as explained by the Statute of Frauds, it was provided, that the surplusage of intestates' estates,—except in the case of femes covert, the administration and enjoyment of whose estates belonged, by the principles of the common law, to their husbands,--should, after the expiration of one full year from the death of the intestate, be distributed in the following manner, that is to say :-one-third should go to the widow of the intestate, and the residue in equal proportions to his children, or, if they were dead, to their representatives, that is their lineal descendants ; if there were no children or legal representatives of such children subsisting, then a moiety was to go to the widow, and a moiety to the next of kindred in equal degree, and their representatives ; and if no widow, the whole was to go to the children ; if neither widow nor children, the whole was to be distributed among the next of kin in equal degree, and their representatives : but, among collaterals, no representatives (as such) were to be admitted, farther than the children of the intestate's brothers and sisters (). The next of kindred here referred to are to be ascertained by the same rules of consanguinity, as those which indicate who are entitled to letters of administration, of which we have already sufficiently spoken (g) ; and, therefore, according to the Statute of Distribution, the father, or if he were dead, the mother, succeeded to all the personal effects of their children who died intestate and without wife or issue, to the exclusion of the other sons and daughters, the brothers and sisters of the deceased. And so the law still remains with respect to the father ; but by the stat. 1 Jac. II. (1685) c. 17, if a man die intestate and without issue, leaving no father, but leaving a mother and brothers or sisters, the mother, and each of the brothers and sisters, or their representatives, shall divide bis effects in equal portions ; subject of course, to the rights of his widow, if any.
(f) Raym. 496 ; Pett's Case (9) Vide supra, p. 240. (1700), 1 P. Wms. 25.
[By another provision of the Statute of Distribution, it is enacted that no children of the intestate (except his heirat-law) on whom he may have settled in his lifetime any estate in lands or pecuniary portion, equal to the distributive shares of the other children, shall have any part of the surplusage with their brothers and sisters ; but that if the estate so given them by way of advancement shall not be equivalent to the other shares, the children so advanced shall have so much as will make them equal,-a just and equitable provision said to be derived from the collatio bonorum of the Roman law, which it certainly resembles in some points, though it differs widely from it in others (h). And it may not be amiss to here observe, that this doctrine of advancement, with regard to goods and chattels, was part of the antient custom of London (i), of the province of York, and of the kingdom of Scotland (k).
It must be particularly observed also, with regard to the Statute of Distribution, that personal estate is sometimes divided per capita, and sometimes per stirpes ; that is to say, personal estate is divided per capita,—to every man an equal share,—when all the next of kin claim in their own rights, as in equal degree of kindred, and not jure repræsentationis, as in the right of another person. Thus, if the next of kin be the intestate's three brothers, A., B., and C.; here his effects are divided into three equal portions, and distributed per capita, one to each. But if one of these brothers, A., had been dead, leaving three children, and another, B., leaving two ; then the distribution must have been per stirpes, viz., one-third to A.'s three children, another third to B.'s two children, and the remaining third to C., the surviving brother. But if C., in the case supposed, had also been dead, without issue, then A.'s and B.'s children, being all in equal degree to the (h) Dig. 37, 6, 1.
(h) Ersk. Inst. b. 3, tr. 9, (i) Kemps v. Kelsey (1722), ss. 24. Prec. Ch. 596.
[intestate, would have taken in their own rights per capita ; viz., being five in all, each of them one-fifth part (1).] However, as regards the descendants of the intestate, the distribution is in all cases per stirpes, and not per capita ; e.g., if A. dies intestate leaving three grandchildren by his son B., and one grandchild by his daughter C., the one moiety of the estate goes to the three children of B., and the other moiety to the one child of C. (m).
By the Statute of Distribution, the customs of the city of London, of the province of York, and of all other places having peculiar customs of distributing intestates' effects, were expressly excepted and reserved ; so that, though in those places the restraint of devising had been long removed, their antient customs, with respect to the estates of intestates, still remained in full force (n). Any special customs, however, concerning the distribution of estates in these or other places have now been wholly abolished, save only with respect to the estates of those who may have died on or before the 31st December, 1856. For, by the 19 & 20 Vict. (1856) c. 94, the distribution of the personal estate of all persons dying intestate on or after the 1st January, 1857, is directed to take place as if the rules for the distribution of the personal estates of intestates, generally prevalent in the province of Canterbury, prevailed throughout the whole of England and Wales ; any law, custom, or statute to the contrary notwithstanding.
And here it is necessary to mention that, by the Intestates' Estates Act, 1890 (0), in the case of a husband who dies intestate after the 1st September, 1890, and who leaves no issue, the whole estate (real and personal) of the deceased now passes to his widow, if it be under a total
(1) Prec. Chan. 54.
(m) In re Vatt, Walker v Gammage (1888), 37 Ch.D. 517, fol. lowing Lockyer v. Vale (1741), Barn. Ch. 444.
(1) Matthers v. Verby (1682),