is imposed by Act of Congress as a part of the War Revenue law, and must be paid at the end of one year from decedent's death. The fixing of the amount of this tax is a mere formality, as the federal authorities usually accept the figures used in determining the state inheritance tax.

109. Legacies and their payment.

Having now reduced the estate to cash and paid the debts and taxes, the executor should promptly pay over to those whom the testator has given it, the residue of the estate. In doing so the will is, of course, his main guide, but not the only one, for many perplexing problems frequently arise, due to events which have occurred since the date of the will.

As in case of paying debts, the personal estate is the primary fund out of which legacies are to be paid, but sometimes they are made a charge on the real estate by the will while at the same time the lands are devised to others. In such case the lands pass to the devisees who become personally liable for the payment of the legacies, provided they accept the devise. Where the legacies are not expressly so charged it often becomes difficult to determine whether such was the testator's intention or not. In settling the question the court will consider, in aid of the

legatees, the presence of a power of sale in the will and a blending in the residuary clause of real and personal property, and the fact that the general legacies greatly exceed the value of the personal estate. The courts are more ready to charge legacies upon lands where the legatees are of the blood of the testator so as to be presumed to be the natural objects of his bounty, but the tendency is less strong where the legatees are strangers in blood.

Some legacies are vested and some contingent. They are vested when the gift is immediate, even though the right of possession is postponed; but if dependent upon the occurrence of some event which may or may not happen, they are contingent. Thus, a gift to one payable when he becomes of age is an absolute vested legacy, the time of payment alone being postponed; but a bequest to one if he lives until he is of age is contingent, because the legatee may not live to be twentyone, and if he does not the legacy fails.

There is another rule respecting the vesting of legacies which should not be omitted, namely, that where in a will the only gift is to be found in the direction to distribute or pay over at a future time, the legacies are contingent, not vested, and survivorship at the time of distribution is an essential condition to the acquisition of an interest

in the subject of the gift. But this rule is not a favorite with the courts and will yield to any other reasonable construction.

Sometimes gifts are made upon one condition or another, and the executor should, if possible, see to it that all such conditions are complied with. An example of this is seen in the case of a legacy to one on condition that the executor is satisfied that the legatee has reformed from dissipation, or has paid his debts, or married a certain woman of the testator's choice. Each of these is an instance of a condition precedent, or one which must be performed before the legatee may receive the bequest. Other conditions, on the other hand, may be subsequent. If these be not performed, the performance may be enforced by action, with the risk of the legacy being forfeited. Of this class an example would be the case of a legacy to the testator's son, provided he continue to engage in some specified business. If the condition, whether precedent or subsequent, be refused, the legacy will lapse (see post § 110) unless the testator has provided against such a contingency.

Occasionally a will is found to contain two legacies of the same amount to the same person, and the question must be determined whether both gifts are to be paid, or only one. The pre

sumption is that only one was intended, but it is otherwise if the legacies are contained in different instruments. In any case the question is to be controlled by whatever intention the circumstances disclose.

It is not at all uncommon for a testator to declare, in substance, that a legacy he has given his wife shall be accepted by her in lieu of dower or other interest in the estate. In such case, the widow is required to make her choice, whether she will accept the legacy coupled with the condition attached, or will take her dower and renounce the legacy, for she is not entitled to both. Sometimes the intention of the testator is not declared in express terms, and it becomes a doubtful question whether she is put to her election. Generally speaking she is not, unless the taking of her dower would be so inconsistent with the provisions of the will as to disturb their performance. If the widow be insane, she cannot of course exercise her election, nor can her committee or guardian; but a court of equity has power to authorize the committee to elect on her behalf, as her interest may appear. If the legacy be accepted, it becomes a debt of the estate and must be paid in preference to other legacies, in the event that the personal property is insufficient to pay all in full.

So also a creditor may be put to an election between a legacy and his debt. While the general rule is that such a legacy discharges the debt, there are so many exceptions as practically to render the rule itself inoperative. Thus, no satisfaction takes place (1) when the debt was contracted after the date of the will, (2) where the will directs payment of the testator's debts, (3) when the motive for the legacy is expressed, (4) when the legacy is conditional and payable at a future time, (5) when the legacy is less than the debt, (6) when the debt is unliquidated, (7) when the legacy and debt are of a different nature, and (8) where the legacy is specific.

On the other hand, a legacy by a creditor to his debtor of the amount of the debt is a forgiveness of the debt. As against the testator's creditors such a legacy is not valid. It is construed as a specific bequest only, and the debt must be included in the representative's inventory. In such case a legacy does not release a debt contracted after the date of the will.

Where a legacy is given to one for life, and after his death to another, questions frequently arise as to the duty of the executor. If the gift is of specific articles which will necessarily be consumed by their use, the legatee takes them absolutely. But where they will not be so con