nistrator. (h) And the executor of an executor is entitled to retain, out of the balances of the produce of the original testator's West India estates received by him as consignee appointed by the court, debts due from the testator to him, either in his own right, or as executor of the deceased executor. (hh) In short, wherever an executor might have been sued, or might have paid a debt, he has authority to retain. (¿) And he may also retain, notwithstanding a decree has been made in a suit by other creditors for the administration of the assets, and notwithstanding the assets out of which he seeks to retain his debt came to his hands after the decree. (ii) And by payment of money into court under an order, his right of retainer is not prejudiced. (k) But where A. and B. were joint obligors in a bond, the former as principal, the latter as surety, A. died, B. took out administration to him, and on forfeiture of the bond, dis[298] charged the debt, it was held that he could not retain, for, by joining in the bond, the debt became his own. (kk) Yet, in such case, it seems, he might retain for the money paid as constituting a simple contract debt. Where the heir of the obligor in a bond, being one of two surviving executors, in a suit instituted by creditors, accounted for the produce of the real estate in the Master's office, and he and his co-executor proved the bond debt under the decree, and the heir did not claim a right of retainer until the cause came on upon further directions, he was held not entitled to retain in that stage of the proceedings. (1) A retainer for a debt may either be given in evidence on the plea of plene administravit, or it may be pleaded specially. (l) (h) 11 Vin. Abr. 265. Blackborough v. Davis, 1 Salk. 38. (hh) Thomson v. Grant, 1 Russ. 540. (i) Com. Dig. Admon. C. 2. Plumer v. Marchant, 3 Burr. 1384. (ii) Nunn v. Barlow, 1 Sim. & Stu. 588. (k) Langton v. Higgs, 5 Sim. 228. Chissum v. Dewes, 5 Russ. 29. (kk) 11 Vin. Abr. 362. Godb. 149. (1) Player v. Foxhall, 1 Russ. 538. (U) Loane v. Casey, Bl. Rep. 965. Plumer v. Marchant, 3 Burr. 1383. 11 Vin. Abr. 266. 1 Brownl. 75. An executor may, as we have seen, (m) retain both at law and in equity for his whole debt, as against other creditors of the same degree: (n) but equity will interpose to restrain him from perverting this privilege to the purposes of fraud. (0) Nor will a mere nomination of a creditor to the executorship, if he refuse to act, extinguish his legal remedy for the recovery of his debt. (p) Hence if a creditor be appointed executor with others, he may sue them, especially if he hath not administered. (q) If there be not personal assets, he may sue the heir, where the heir is bound. (r) [299] CHAP. IV. OF THE PAYMENT OF LEGACIES. SECT. I. Legacy what who may be legatees-who not-legacies general, and specific-lapsed, and vested. HAVING thus discussed the duty of an executor in regard to the payment of debts according to the order described by law, the payment of legacies, in the next place, demands his attention. A legacy is a bequest, or gift of personal property by will. (m) Supra, 295. (n) 11 Vin. Abr, 265, in note. Waring v. Danvers, 1 P. Wms. 295. Musson v. May, 3 Ves. & Bea. 194. (0) 3 Bac. Abr. 83, in note. Cock v. Goodfellow, 10 Mod. 496. (p) Rawlinson v. Shaw, 3 Term Rep. 557. (q) 3 Bac. Abr. 10, in note. Off. Ex. 33. (r) Harg. Co. Litt. 264 b. note 1. Wankford v. Wankford, Salk. 304. Off. Ex. 33, 34. All persons are capable of being legatees, with some special exceptions by common law, and by statute. (a) To this disability all traitors are subject. (b) By stats. 25 Car. 2, c. 2, and 1 Geo. 1, stat. 2, c. 13, persons required to [300] take the oaths, and otherwise qualify themselves for offices, and omitting to do so, shall be incapable of a legacy. By stat. 9 & 10 Wm. 3, c. 32, persons denying the Trinity, or asserting that there are more gods than one, or denying the Christian religion to be true, or the holy scriptures to be of divine authority, shall for the second offence be also incapable of any legacy. Likewise, by stat. 5 Geo. 3, c. 27, if artificers going out of the realm to exercise or teach their trades abroad, or exercising their trades in foreign parts, shall not return within six months next after due warning given them, they shall be subject to the same disqualification. And by stat. 25 Geo. 2, c. 6, all legacies given by will or codicil to witnesses of the same are declared void. (c) And Sir William Grant held, that the statute extended to wills disposing of personal property only; (d) but in subsequent cases it has been held otherwise, and that a legacy to a person who is an attesting witness to such a will, is not void. (dd) But now a devise or legacy to an attesting witness to a will of real or personal estate, is declared void by 1 Vict. c. 26, s. 15. Legacies to superstitious uses are void, either by virtue of the statute of 1 Edw. 6, c. 14, or as against the policy of the law. Legacies, therefore, to priests and chapels, to perform masses for the repose of the soul of the deceased, are void. (e) But the statute of 2 & 3 Wm. 4, having enacted that persons professing the Roman Catholic religion in respect to their schools, places for religious worship, education, and cha (a) Bl. Com. 512. 4 Burn. Eccl. jun. 508. L. 313. 4 Bac. Abr. 337. (b) 2 Bl. Com. 512. (c) Vide Bl. Com. 377, and 4 Burn. Eccl. L. 78. (d) Lees v. Summersgill, 17 Ves. (dd) Brett v. Brett, 3 Addams, 210. Emanuel v. Constable, 3 Russ. 436. Foster v. Banbury, 3 Sim. 40. (e) West v. Shuttleworth, 2 Myl. & Keen, 684. ritable purposes in Great Britain, and the property held therewith, and the persons employed in or about the same, shall in respect thereof be subject to the same laws as the Protestant Dissenters are subject to in England, in respect to their schools and places for religious worship, education and charitable purposes, legacies to Catholic schools, and to promote the knowledge of the Catholic religion are good. (ƒ) Although a man cannot make a grant to his wife, nor enter into a covenant with her, (for such grant would be to suppose her separate existence, and to covenant with her would be to covenant with himself,) yet he may bequeath any thing to her by will, since that cannot take effect till the coverture is determined by death. (g) A bequest by a husband to his "beloved wife," not mentioning her by name, applies exclusively to the individual who answers the description at the date of the will, and is not to be extended to an after taken wife. (gg) An infant in ventre sa mere may, as we have seen, be appointed an executor. He is also capable of being a legatee. () And a bequest of 20007. each "to all the children of my sister I. G. whether now born or hereafter to be born," has been held to include all children born after the testator's death, and an inquiry was directed, what would be a proper sum to be set apart to answer the legacies to future children. (hh) And a bequest in trust for all the children of the testatrix's nephew R., born in the lifetime of the testatrix, was held to include a child, of which the wife of R. was enceinte at the time of the testatrix's death, although not born until several months afterwards. (i) Bradshaw v. Tasker, 2 Myl. & Keen, 221. West v. Shuttleworth, ib. 684. (g) 1 Bl. Com. 442. Harg. Co. Litt. 112. (gg) Garratt v. Niblock, 1 Russ. & Myl. 629. (h) Northey v. Strange, 1 P. Wms. 342. Vide Ellison v. Airey, 1 Ves. 114. Clarke v. Blake, 2 Bro. Ch. Rep. 320, and 1 Cox's Rep. 248. (hh) Defflis v.Goldschmidt, 1 Mer. Rep. 417. S. C. 19 Ves. 566. (i) Trower v. Butts, 1 Sim. & Stu. 181. If a legatee is sufficiently described in a will, so that he can be identified, a mistake of his christian name will not make the legacy void: as, where a testator gave a legacy unto my namesake Thomas, the second son of my brother John, John had no son of the name of Thomas, but his second son's name was William, and he was held entitled. (h) And where legacies were given "to the three children of A. the sum of 6007. each," and there were four children all born before the date of thewill; the four were held entitled to 6007. each, for that it was a mere slip in expression, the meaning being, all children; and the court conceiving the intention to be to give to each child so much, struck out the specified number. (i) Under a bequest by an unmarried man "to my children," parol evidence was allowed to shew whom the testator considered in the character of children: and his illegitimate children, having obtained a name by reputation, were admitted to take, though not named in the will. (k) But a bequest "to such child or children if more than one as A. may happen to be enceint of by me, "a natural child of which she was then pregnant, cannot take. (?) And wherever the general description of children in a will would include legitimate children, it cannot also be extended to illegitimate children. (W) But where a testatrix gave a share of her residuary estate to the children of M. G. deceased, and M. G. left two children, one legitimate and the other illegitimate, evidence was admitted to prove that the illegitimate child had acquired the reputation of being the child of M. G., that the testatrix well knew that fact, and that M. G. left only those two chil (h) Stockdale v. Bushby, Coop. Rep. 229, and 19 Ves. 381, S. C. and see Careless v. Careless, 1 Mer. Rep. 384, same principle decided, and 19 Ves. 601. (i) Garvey v. Hebbert, 19 Ves. 125. Harrison v. Harrison, 1 Russ. & Myl. 72. (k) Beachcroft v. Beachcroft, 1 Madd. Rep. 430, and see Lord () Earle v. Wilson, 17 Ves. 528, and see Arnold v. Preston, 18 Ves. 288. (u) Bagley v. Mollard, 1 Russ, & Myl. 581. |