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A legacy may be defined as a gift of personal property contained in a will. Of these there are many kinds. A legacy is said to be specific when its subject is a particular thing distinct from all others of the same kind, and which may be satisfied by the delivery of that thing and no other. Thus, the bequest of a designated bond, or certificate of stock, or policy of insurance is specific. A money legacy may also be specific if the will sufficiently describes it so that the very money given may be handed to the legatee in specie. So too, a bequest of the proceeds of a particular plot of land directed to be sold is a specific legacy, because it cannot be paid with anything except the proceeds of that property. If, however, the gift had been of a stated sum of money, to be paid out of the proceeds of the land, it would have been what is known as a demonstrative legacy, which is a bequest of money or other personal property, accompanied by a designation of the particular fund or property from which it is to be paid or taken. In the case of a specific legacy, if the subject matter of the gift is not in existence at the testator's death the gift itself fails, but not so if the legacy is demonstrative. If the fund or property fail, satisfaction may be had out of the general estate.
Every legacy which is neither specific nor demonstrative is general, and this term embraces residuary legacies, which are gifts of all the testator's estate remaining after the payment of debts and the satisfaction and discharge of all other bequests contained in the will.
With respect to enjoyment legacies are said to be absolute or conditional, vested or contingent. These will be explained later.
An annuity is a species of general legacy and is defined as a bequest of certain specified sums periodically. Hence, the gift of the interest on a certain sum, payable annually, is not an annuity. None of the elements of a trust pertain to this kind of benefaction.
In its most general sense, a trust contained in a will consists in a gift to one, called the trustee, of property, real or personal, coupled with a direction, or even the expression of a wish, that it be devoted by the recipient to the benefit of a third person, called the beneficiary. Except in certain cases of public or charitable trusts, to be discussed hereafter, there are three necessary elements of every valid trust, namely, a designated trustee other than the beneficiary (for no one can be a trustee for his own benefit), a definite and lawful purpose, and a beneficiary who can be identified and who is capable of enforcing the trust.
No particular form of language is necessary to create a trust, so long as it sufficiently appears that the one to whom the bequest is made is to have only the possession and management of the fund, while the benefits therefrom are to go to another. Thus, a trust is created by a gift to one "for the use, benefit and support of his children," or "to be divided equally among" designated persons. So, too, where a testator in conveying personal property to his executors, as such, imposes on them the continuous active duty of investing the same and paying the income over to specified beneficiaries for life, with remainders over on the death of the beneficiaries respectively, an express trust is created, although not so termed by the testator.
But the mere declaration of a purpose for which a legacy is to be used does not always import an intention to create a trust. If that purpose be the benefit of the legatee himself, no trust results, for the courts will not compel that to be done which the legatee may the next moment undo. This principle is exemplified in the case of a bequest to a corporation for use in furthering some one of its corporate objects, which has always been construed as an absolute gift without condition.
From what has been said, the distinction between a trust and a bequest will be readily discerned. A bequest, unless made conditional by the will, carries with it the immediate ownership and control of the subject matter of the gift; while in the case of a trust the ownership and power of disposition by the ultimate beneficiary is suspended until the happening of some certain event. Meanwhile, he may be allowed the beneficial use, i. e., the income, of the trust fund, or it may be given to another. The function of the trustee is to receive the fund, invest it for the benefit of the one to whom the income is directed to be paid, and preserve the principal against the day when he will be called upon to turn it over to its ultimate owner.
It has often been remarked that a man may do as he likes in the matter of disposing of his property by will, and to a very great extent this is true. But it has been deemed contrary to the policy of the law to permit one to leave his property in such a way as that the possession and control of it by his beneficiaries is too long suspended, or to leave so much to charities as will prejudice the rights of the natural objects of his bounty; or to direct the income of his estate to accumulate for too long a time, and the like. Hence, both in England and in America, laws have been passed greatly restricting the power of testators in the matter of creating trusts. Great ingenuity has been displayed by testators in attempts to evade these statutes, and by the courts in defeating them. Wrecks of many fine schemes are scattered through the law reports of the country.
10. The right to make a will.
The origin of wills as an institution is lost in obscurity; but it is clear that they were in use by the early Hebrews, Greeks, and Romans. By the latter they were not at first employed for the transmission of property, but only for the handing down of the leadership of the family to a new head. The property of the deceased chief descended to his heirs, of course, but it was not so much by virtue of the will as because the devolution of the leadership carried with it the power of disposing of the family goods. Later on, wills became the means of distributing property, and the Roman law upon the subject became about as highly developed as our own.
In England, says Mr. Blackstone in his celebrated commentaries, the power of bequeathing personal property is