Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

sumed, the legatee is entitled to possession, subject to the right of the remainderman. So too, where the legatee is given the income from a certain fund, with the right to use the principal if need be, he is entitled to receive the fund and is accountable for only so much thereof as he has not expended. But beyond these instances an executor should not surrender the property of the estate to one who has only a life interest therein, without exacting security for the benefit of those who will eventually be entitled to it.

Lastly, we have to consider the status of a legacy to the executor himself, not as an individual, but in his official capacity. Such a legacy is conditional upon his assuming office. If he renounces it, or for any reason neglects to qualify, the gift fails. Where it is given as compensation for his services, and he accepts it, he is entitled to no commission or other emolument from the estate.

While a legacy to an executor as such will vest in him as an individual, nevertheless, if the recipient has knowledge of the testator's purpose, secret or otherwise, in making the gift, its acceptance will be construed as an implied promise to apply the funds to that purpose, and a trust will supervene.

110. Same; ademption, satisfaction, abatement and lapse.

Ademption occurs where a specific thing which has been bequeathed by the testator is not in existence or in his possession at the time of his death. In such case the legacy is said to adeem, whether the testator intended that result or not. For instance, if he bequeathed to one a certain bond, and thereafter such bond was paid or sold, there would be an ademption and the legacy fail. So, too, where the gift was of a savings bank account, which the decedent withdrew in his lifetime. But ademption does not occur where there is simply a failure of the purpose for which the gift is made. Thus, a legacy to a religious institution for the purpose of paying off a particular debt is not adeemed because the debt was discharged by other means.

Whether the doctrine applies to demonstrative legacies (ante § 7) depends largely upon the testator's intention. If it be his purpose that the legatee shall certainly receive the gift, that purpose will not be defeated by the failure of the fund out of which it is directed to be paid.

Satisfaction of a legacy takes place when a legatee receives from the testator in his lifetime property in lieu of that bequeathed. The doctrine also applies to devises of land. So, too,

an advancement to a child or grandchild by way of portion is regarded as a satisfaction of a general legacy; but one given to enable the legatee to engage in business carries no such presumption, for it is not a portion.

Legacies are said to abate when there is not sufficient property with which to pay them all in full. Specific legacies (ante § 7) are not subject to this rule except for the payment of debts, funeral expenses and expenses of administration. While general legacies must abate, preference is given to some kinds over others. Thus, a bequest made in consideration of some obligation existing in favor of the legatee, or in lieu of dower, or one given for maintenance and support of a dependent, are preferred and do not abate except among themselves. The same rule also applies to a gift to the executor as compensation for his services. A residuary legacy is the first to abate and cannot be paid until all others have been satisfied. Of course, the will may indicate, expressly or by implication, the order in which the legacies are to be paid, and these directions must be followed. For example, if the purpose for which a gift is stated to be made, cannot be accomplished with less, the implication is that the gift is not to be subject to abatement. It is hardly necessary to add that on a deficiency

of assets a legatee, who has been paid more than his share, must refund so as to produce equality among all legatees of the same class.

A legacy lapses, that is, becomes extinguished, when the legatee dies during the lifetime of the testator. But when such legatee is a child or other descendant, or a brother or sister of the decedent, and leaves issue the lapse does not take place, and the legacy goes to the issue in the same way as though the legatee had survived the testator and then died intestate. Another exception to the general rule is the case of a legacy to a debtor or creditor, the effect of which we have already noticed (ante § 109).

If a legatee dies after the testator, the legacy is payable to his executor or administrator, because it becomes his property at the testator's death. But there are two exceptions to this rule. If the right of the legatee is dependent upon a future condition, or is subject to defeat upon the happening of an event, his death after the testator but before the occurrence of the condition or event will cause a lapse. So, too, a legacy charged on land lapses by death of the legatee before payment, though after the death of the testator.

A gift to several persons jointly, i. e., to a class of persons unnamed and uncertain in number, does not lapse by the death of one but is paid in

full to the survivors equally. A gift to a class is a gift of an aggregate sum to a body of persons, uncertain in number at the time of the gift but to be ascertained at a future time, who are all to take in equal shares or in some other definite proportions; the share of each being dependent for its amount upon the ultimate number. Thus, where the testator bequeaths a life estate to A, and upon his death the principal of the trust is to go to his "heirs," the gift to the heirs is to a class, whose number cannot be determined until A's death. If any of the class die, there is no lapse, the deceased member being treated as though he had never existed.

But a gift is not to a class when, at the time it is made, the number and the share of each is known. Hence a legacy to one and her children, designated by name, to be divided equally among them, goes to the several persons as tenants in common and not as a class, and the death of any one of them before the testator causes a lapse for the benefit of the next of kin.

Where a will bequeaths the income of a fund to one for life with the remainder, upon his death, to another, the death of the life-tenant before the testator does not affect the remainder, which is accelerated, so to speak, and becomes operative at

once.

« ΠροηγούμενηΣυνέχεια »