to his wife, and executrix, to be disposed of among their children in such manner as she should think fit; it was held that if she make an inequality, the court will not enter into the motives of it unless it be illusory, and if she give a mere trifle to one of them; and even in that case if the child's misbehaviour has been very gross, it shall not be varied. And it seems now settled, that in cases where an executor has such a discretionary power, he may give a larger share to one of the objects than to another, provided the share of both be substantial, and not illusory or merely nominal. () Where a legacy was given to A., but if the executors after named should think it more for his advantage to have it placed out and to pay him the interest for life, as they in their discretion should think fit, and directing that after his decease the said sum should be divided among his children, and for default of children over: one of the executors being dead, and the other having renounced, the legacy was held to be absolute in the legatee. (m) A testator expressed his will and desire, that one-third of the principal of his estate and effects should be left entirely to the disposal of his wife, among such of her relations as she might think proper, after the death of his sisters. The wife died without making any disposition, and it was held a trust for her next of kin at the time of her death. (n) If a legacy be given to a married woman, it must be paid to the husband. So where a legacy was given to a married woman living separate from her husband with no maintenance, and the executor paid it to the wife, and took her receipt for it, yet on a suit instituted by the husband against the executor, he was decreed to pay it over again with in (7) Maddison v. Andrews, 1 Ves. 57. Vide also Alexander v. Alexander, 2 Ves. 640. Swift v. Gregson, 1 Term Rep. 432. Nisbett v. Murray, 5 Ves. jun. 149. Longmore v. Broom, 7 Ves. jun. 124, and Butcher v. Butcher, 9 Ves. jun. 382. (m) Keates v. Burton, 14 Ves. jun. 434. (n) Birch v. Wade, Ves. & Bea. 198. terest. (o) It hath also been adjudged, that if the husband and wife are divorced à mensá et thoro, and the legacy is left [321] to her, the husband alone may release it; (p) and, consequently, to him alone it is payable. But the executor, in cases where the husband has made no provision for the wife, may decline paying such legacy, if it amounts to the sum of two hundred pounds, unless he will make an adequate settlement on her. (g) Nor will the Court of Chancery interpose in his favour, but on the same terms; (r) unless the wife appear in court and consent to his receiving it. (s) And if a woman, who is or has been married, is entitled to a legacy, the court expects a positive affidavit, that the legacy has not been in any manner settled, before it will direct payment to her. (t) Nor does the court confine its interposition in favour of the wife, and compel a provision for her against those persons only, who are seeking to obtain her property by the assistance of the court; but in extension of the principle of those cases, in which equity restrains the husband from proceeding in the ecclesiastical court because that jurisdiction cannot enforce a settlement for the wife, will entertain a bill by a married woman against an executor or administrator, and the husband praying for a provision out of a legacy bequeathed to her, or out of a share of an intestate's estate, to whom she is next of kin. (u) (0) Palmer v. Trevor, 1 Vern, 261. 4 Burn. Eccl. L. 332. L. of Test. 265. (p) 4 Bac. Abr. 433. 1 Roll. Abr. 343. 2 Roll. Abr. 301. S. C. Moore, 665. Rye v. Fuljambe, 683. Stephens v. Totty, Cro. Eliz. 908. Stephens v. Totty, Noy, 45. Motam v. Motam, 1 Roll. Rep. 426. S. C. 5 Buls. 264. Chamberlain v. Hewson, Salk. 115, pl. 4. S. C. Ld. Raym. 73. S. C. 5 Mod. 69, and 12 Mod. 89. (9) Lady Elibank v. Montolieu, 5 Ves. jun. 742, in note. (r) Milner v. Colmar, 2 P.Wms. 639. Adams v. Peirce, 3 P. Wms. 11. Brown v. Elton, ib. 202. (s) Willats v. Cay, 2 Atk. 67. Milner v. Colmar, 2 P. Wms. 641. Parsons v. Dunne. 2 Ves. 60. Sed vide ex parte Higham, 2 Ves. 579. (t) Hough v. Ryley, 2 Cox's Rep. 157. (u) Lady Elibank v. Montolieu, 5 Ves. jun. 737. See Wright v. Rutter, 2 Ves. jun. 276. Meales v. Meales, 5 Ves. jun. 517, in note, and Carr v. Taylor, 10 Ves. jun. 578, and infra, 490. If a legacy be left to the senior six clerk, to be divided between himself and the other six clerks, it seems that it ought to be paid to the senior, and that it would not be incumbent on the executor to make any inquiry respecting the others. (w) A legacy bequeathed to a charity established out of England, must be paid to the persons whom the testator has selected as the instruments of his benevolence. (ww) Commissioners of bankrupt may assign a legacy left to a bankrupt before his bankruptcy; (x) and although it be left after his certificate has been signed by the creditors and commissioners, if before its allowance by the Lord Chancellor; (y) consequently, in such case the legacy must be paid to the assignees. Although, as it has been already stated, payment by an executor of a debt by simple contract, before the breach of the condition of a bond, is good, and shall not be impeached by its happening afterwards, (2) yet payment of a legacy under the same circumstances shall not be allowed. It was, [322] indeed, formerly held, that such bond should not hinder the payment of a legacy, because it was uncertain whether the bond would be ever forfeited, but that the executor should pay the legacy conditionally, and take security of the legatee to refund in the event of a forfeiture of the obligation. (a) And in all cases, where a suit was instituted in the spiritual court to compel an executor to pay a legacy without a security from the legatee to refund in case of a deficiency of assets, the Court of Chancery would grant a prohibition; (b) yet that practice no longer exists. Equity will (w) Per M. R. arguendo, Cooper v. Thornton, 3 Bro. Ch. Rep. 99. (ww) Emery v. Hill, 1 Russ. 112, and cases there cited. Com. (x) Cooke's B. L. 371. Dig. Bankrupt (D. 16). Toulson v. Grout, 2 Vern. 433. (y) Tredway v. Bourn, 2 Burr. (z) Supra, 282. (a) 3 Bac. Abr. 84. 1 Roll. Abr. 928. 4 Burn. Eccl. L. 332. Noel v. Robinson, 2 Ventr. 358. (b) 4 Burn. Eccl. L. 332, 333. Grove v. Banson, 1 Chan. Ca. 149. Noel v. Robinson, 2 Ventr. 358. S. C. 1 Vern. 93. not now interfere, (c) but will compel a legatee to refund where the estate proves insufficient, whether security has been given for such a purpose or not. (d) A legacy must be paid in the currency of the country, in which the testator was resident at the time of making the will. Thus it has been decided, that where a party living in Ireland, or in the West Indies, give legacies by his will generally, they are payable according to the currency of those respective countries. (e) Nor is the case varied by the legatee's residing in England; (f) nor by the testator's having [323] left effects partly here and partly abroad, unless he shall have separated the funds, and charged the legacies on his English property. (g) If he has given some legacies described as sterling, and others without such description, the former are payable in sterling money, the latter in the currency of the country where the testator resided. (h) In like manner, if a testator living in England bequeath a legacy, whether of a single sum of money, or of an annuity charged on lands in another country it shall be paid in England, and in English money, and without any deduction for the expenses of its remittance. (i) In regard to the payment of interest on a legacy, it was formerly held, that in case of a vested legacy charged on lands yielding immediate profits, and no time of payment mentioned in the will, interest should, in respect of such profits, be made payable from the death of the testator; (k) or that a legacy given out of a personal estate consisting of (e) Anon. 1 Atk. 491. Hawkins v. Day, Ambl. 160. (d) Noel v. Robinson, 1 Vern. 93, 94. Hawkins v. Day, Ambl. 162. (e) Holditch v. Mist, 1 P. Wms. 696, note 2. 2 P. Wms 88, 89, note 1. Saunders v. Drake, 2 Atk. 465. Pearson v. Garnet, 2 Bro. Ch. Rep. 38. Malcolm v. Martin, 3 Bro. Ch. Rep. 50. Cockerell v. Barber, 16 Ves. jun. 461. (f) Saunders v. Drake, 2 Atk. 466. (g) Ibid. Pearson v. Garnet, 2 Bro. Ch. Rep. 47. (h) Saunders v. Drake, 2 Atk. 465. Pearson v. Garnet, 2 Bro. Ch. Rep. 38. Malcolm v. Martin, 3 Bro. Ch. Rep. 50. (i) Wallis v. Brightwell, 2 P. Wms. 88. Holditch v. Mist, 1 P. Wms. 696. (k) 4 Bac. Abr. 439. Maxwell v. Wettenhall, 2 P. Wms. 26. 2 Bl. Com. 513. mortgages bearing interest, or of money in the public funds, the dividends of which are paid half-yearly, should for the same reason carry interest from the same period; (7) or that interest on a specific legacy, where it produces interest, should be computed from the time of the testator's death: it being severed from the rest of his estate, and specifically appropriated for the benefit of the legatee, it should therefore carry [324] interest immediately. (k) But if a legacy were given generally out of the personal estate, and no time specified by the testator, such legacy should carry interest only from the expiration of the year next after his decease, on the principle that the executor might be reasonably allowed that time for the collecting of the effects. (1) So it was held, that if a legacy were given, charged on a dry reversion, it should carry interest from a year next after the death of the testator: inasmuch as a year was a competent time for a sale. (m) But the rule that the payment of interest should dependon the funds being productive or barren, is now exploded: and, generally speaking, interest for a legacy is payable only from a year after the death of the testator: Although he should have left stock only, and no other property, yet now no interest would be given, upon legacies bequeathed by him till the end of a year next after his death. (n) Simple contract debts of another person charged by the will of a testator upon his real estates, are legacies, and carry interest from the death of the testator at four per cent. (0) If an annuity be given by the will, it shall commence immediately from the testator's death, and, consequently, the Lloyd v. (7) Maxwell v. Wettenhall, 2 P. Wms. 26, and note 2. Williams, 2 Atk. 108. v. Tobin, 1 Ves. 308. Saunders, Bunb. 240. v. Evelyn, 3 P. Wms. 253. (k) Lawson v. Stitch, 1 Atk. 508. Sleech v. Thorington, 2 Ves. 563. (1) Maxwell v. Wettenhall, 2 P. Wms. 26, 27. Lloyd v. Williams, 2 Atk. 108. (m) Maxwell v. Wettenhall, 2 P. Wms. 26. (n) Gibson v. Bott, 7 Ves. jun. 96, 97. (0) Shirt v. Westby, 16 Ves. jun. 393. |