And, sixthly, bonds or covenants voluntarily given without consideration: and, lastly, other voluntary debts. [* 656] The effect of the new act seems to reduce those here* described as fourthly and fifthly payable (which constitute the great bulk of debts) to the same degree. Retainer by executor or administrator. Among debts of equal degree, the executor or administrator is allowed to pay himself first, by retaining in his hands so much as his debt amounts to (x). But an executor of his own wrong is not allowed to retain: for that would tend to encourage creditors to strive who should first take possession of the goods of the deceased; and would besides be taking advantage of his own wrong, which is contrary to the rule of law (y). Also, if no suit is commenced against him, the executor may pay any one creditor in equal degree his whole debt, though he has nothing left for the rest: for, without a suit commenced, the executor has no legal notice of the debt (z). The new act seems much to enlarge the executor's power in this respect. 6. When the debts are all discharged, the legacies claim the next regard: which are to be paid by the executor so far as his assets will extend; but he may not give himself the preference herein, as in the case of debts (a). (425) To pay legacies. Lord St. Leonards' Act. It often occurred that executors or administrators, after paying all the debts of which he had knowledge, had some difficulty in dividing the surplus among the beneficiaries under the will, or the next of kin, from fear of being called upon to pay other debts of which they had no knowledge. In order to relieve them from this difficulty, a recent act (b) has declared that, if they give such notices as are usually given in administration suits, they may safely divide the estate amongst those entitled to it. But the act reserves the claims of any outstanding creditor to follow the assets. A legacy is a gift or bequest of property by will; it confers an inchoate right to the legatee, which becomes * perfect upon the executor assenting [*657] to the bequest, which, of course, until he is satisfied as to the sufficiency of assets, he is not bound to do. In case of a deficiency of assets (c) to pay all the debts, no legatee can receive anything. In case there is, however, merely a deficiency of assets to pay the legacies in full, then they take priority between themselves in the following order: first, specific legacies, that is to say, bequests of specific parts of the property; and among these may be included what are called demonstrative legacies, that is, legacies to be paid out of a particular specified fund (d): secondly, general pecuniary legacies, or gifts of sums of money without special mention of the fund out of which they are to be paid. As between legacies constituting these classes there must be, in case of insufficiency of property, an abatement in proportion to their value. Legacies are considered as payable one year after the testator's death, and if no deficiency of assets exists, interest is allowed from that date. (425) As to remedies for the recovery of legacies, see 3 Redf. on Wills (3d ed.), 271, 296, If a legatee die before the testator, then the legacy is lost or lapsed, except he was a child or other issue of the testator, and left issue, in which case, as we have seen (e), the legacy takes effect as if the legatee had died immediately after the testator. We may here add, that it is the business of the executor or administrator to pay the duty upon legacies and successions to personalty, which varies according to the relationship of the legatee or next-of-kin to the testaLegacy duty. tor or intestate (ƒ). * Besides, these formal legacies, contained in a man's will and testa[* 658] ment, there is also permitted another deathbed disposition of property; which is called a donation causâ mortis. (426) And that causâ mortis. is, when a person in his last sickness, apprehending his dissolution near, delivers or causes to be delivered to another the possession of any Of donations (e) Ante, p. 567. (f) 36 Geo. 3, c. 5. The duties under this act, which govern all estates where the testator or intestate died after the 5th April. 1805, are as follows:- For gifts or shares of residue to lineal ancestors or descendants, 1 per cent.; a brother or sister, or their descend. ants, 3 per cent.; uncles or aunts, or their descendants, 5 per cent.; great uncles or great aunts, or their descendants, 6 per cent.; all others 10 per cent., except husband or wife, who pay no duty. (426) If the donor's estate is not sufficient for the payment of his debts, the gift will fail, for the rights of creditors will be preferred, and the property given will be applied to the payment of their demands. Mitchell v. Pease, 7 Cush. (Mass.) 350; Chase v. Redding, 13 Gray (Mass.), 418, 420; Gaunt v. Tucker, 18 Ala. 27. It is essential that the gift be made in the donor's last illness, or in contemplation and expectation of death; but the apprehension of death may arise from infirmity or old age, or from external and anticipated danger. Nicholas v. Adams, 2 Whart. (Penn.) 17, 22; Michener v. Dale, 23 Penn. St. 59, 63; Smith v. Kittridge, 21 Vt. 238, 245; Raymond v. Sellick, 10 Conn. 480, 484; Knott v. Hogan, 4 Metc. (Ky.) 99, 101; Goss v. Simpson, 4 Coldw. (Ky.) 288, 299. The gift is revocable during the life of the donor. Ib.; Merchant v. Merchant, 2 Bradf. Surr. 432, 445. To render such a gift finally effectual it must not only be made in apprehension of present peril of death, but death must ensue, without any complete remission of the apprehended peril. Ib.; First National Bank of New Haven v. Balcom, 35 Conn. 351, 358; Parish v. Stone, 14 Pick. 198, 203, 204; Grattan v. Appleton, 3 Story, 755; Dale v. Lincoln, 31 Me. 422 ; Kenney v. Public Admr., 2 Bradf. Surr. 319. To constitute a valid gift donatio mortis causa, there must be an actual delivery of the chattel to the donee, so as to transfer the possession of it to him, during the life-time of the donor. Miller v. Jeffress, 4 Gratt. 472, 479; Cutting v. Gilman, 41 N. H. 147; Sims v. Walker, 8 Humph. (Tenn.) 503; Michener v. Dale, 23 Penn. St. 59; McDowell v. Murdock, 1 Nott & McCord, 237; Huntington v. Gilmore, 14 Barb. 243; Case v. Dennison, 9 R. I. 88. An after-acquired possession of the donee is nothing; and a previous and continuing possession, though by the authority of the donor, is no better. Ib. The law not only requires that the delivery shall be actual and complete, such as deprives the donor of all further control and dominion, but it requires the donee to take and retain the possession until the donor's death; and, although the delivery may have been at one time complete, yet this will not be sufficient unless the possession be constantly maintained by the donee. Hatch v. Atkinson, 56 Me. 324, 327. A delivery of the chattel to a third person by the donor, for the benefit of the donee, is sufficient where the donor parts with all control over the subject of the gift. Coutant v. Schuyler, 1 Paige, 316; Grymes v. Hone, 49 N. Y. (4 Sick.) 17, 22; 10 Am. Rep. 313; Sessions v. Moseley, 4 Cush. (Mass.) 84; Michener v. Dale, 23 Penn. St. 59; Southerland v. Southerland, 5 Bush (Ky.), 591. Bank bills and negotiable securities, executed by parties other than the donor, are proper subjects of a donatio mortis causa. Tillinghast v. Wheaton, 8 R. I. 536, 541; 5 Am. Rep. 621; VOL. I. 107 personal goods (under which have been included bonds, and bills drawn by the deceased upon his banker), to keep in case of his decease. This gift, if the donor dies, needs not the assent of his executor: yet it shall not prevail against creditors; and is accompanied with this implied trust, that, if the donor lives, the property thereof shall revert to himself, being only given in contemplation of death, or mortis causá (g). This method of donation might have subsisted in a state of nature, being always accompanied with delivery of actual possession (h); and so far differs from a testamentary disposition: but seems to have been handed to us from the civil lawyers (i). When all expenses, debts, duties, and legacies have been paid by an executor, and when all expenses, debts, and duties, have been paid by an administrator, the clear surplus is to be divided among the residuary legatees, or, as the case may be, the persons entitled under the statute of distribution. When this has been done, the duties of the executor or administrator are at an end. Formerly when a testator failed, either partially or wholly, to dispose of the residue of his personalty, the executor was entitled to retain for his own benefit the property so undisposed of (k). This privilege has been taken away by an act of 1830 (7); and now any such undisposed of residue must be applied in accordance with the statutes of distribution. If, however, there is no person entitled under the statute, the privilege remains. (g) Prec. Chanc. 269; 1 P. Wms. 406, 441; 3 P. Wms. 357. (h) Law of Forfeit. 16. (i) Inst. 2, 7, 1; Dig. 1, 39, t. 6. (k) Will. Exs. pt. iii. bk. iii. c. v. s. 2. () 11 Geo. 4 & 1 Will. 4, c. 40, taking effect apon the estates of all testators who have died since 1st September, 1830. Westerlo v. De Witt, 36 N. Y. (9 Tiff.) 340; Brown v. Brown, 18 Conn. 410; Parish v. Stone, 14 Pick. 198; Waring v. Edmonds, 11 Md. 424; Turpin v. Thompson, 2 Metc. (Ky.) 420; Lee v. Boak, 11 Gratt. (Va.) 182; Caldwell v. Renfrew, 33 Vt. 213; Boneman v. Sidlinger, 21 Me. 185. But the donor's own promissory note for the payment of money to the donee is not the subject of a valid gift donatio mortis causa. Copp v. Sawyer, 6 N. H. 386; Holley v. Adams, 16 Vt. 206; Parish v. Stone, 14 Pick. 198; Michener v. Dale, 23 Penn. St. 59; Chase v. Redding, 13 Gray, 418; Raymond v. Sellick, 10 Conn. 480. So of a gift of the donor's unaccepted draft or his check payable to the donee. Harris v. Clark, 3 N. Y. (3 Comst.) 93; Second National Bank of Detroit v. Williams, 13 Mich. 282. APPENDIX. No. I. No. I. VETUS CARTA FEOFFAMENTI. Tenendum. CJANE presentes et futuri, quod ego Willielmus filius Premises. Willielmí de Segenho, dedi, concessi, et hac presenti cartâ meâ confirmavi, Johanni quondam filio Johannis de Saleford, pro quâdam summâ pecunie quam mihi dedit pre manibus, unam acram terre mee arabilis, jacentum in campo de Saleford, juxta terram quondam Richardi de la Mere: Habendam et Habendum, et Tenendam totam predictam acram terre, cum omnibus ejus pertinentiis, prefato Johanni, et heredibus suis, et suis assignatis, Reddendum. de capitalibus dominis feodi: Reddendo et faciendo annuatim eisdem dominis capitalibus servitia inde debita et consueta; Et Warranty. ego predictus Willielmus, et heredes mei, et mei assignati, totam predictam acram terre, cum omnibus suis pertinentiis, predicto Johanni de Saleford, et heredibus, et suis assignatis, contra omnes gentes warrantizabimus in perpetuum. In cujus rei testimonium Conclusion. huic presenti carte sigillum meum apposui; iis testibus, Nigello de Saleford, Johanne de Seybroke, Radulpho clerico de Saleford, Johanne molendario de eâdem villâ, et aliis. Data apud Saleford die Veneris proximo ante festum sancte Margarete virginis, anno regni regis EDWARDI filii regis EDWARDI sexto. [ L. S. ] Memorandum, quod die et anno infrascriptis plena et pacifica seisina acre infraspecificate, cum pertinentiis, data et deliberata fuit per infranominatum Willielmum de Segenho infranominato Johanni de Saleford, in propriis personis suis, secundum tenorem et effectum carte infrascripte, in presentia Nigelli de Saleford, Johannis de Seybroke, et aliorum. No. II. Recitals. Testatum. No. II. A MODERN CONVEYANCE BY GRANT, THE WIFE OF one thousand eight hundred and sixty-nine between John Brown of Sutton in the county of York farmer and Mary his wife of the one part and Thomas Smith of the city of York esquire of the other part Whereas Matthew Brown formerly of Sutton aforesaid farmer duly made and executed his will dated the ninth day of March one thousand eight hundred and fortynine whereby he devised his messuage and farm known as Hazeldean Farm and then in his own occupation to his son the said John Brown and appointed his said son sole executor of his said will And whereas the said Matthew Brown died on the eleventh day of June one thousand eight hundred and fifty eight without having revoked or altered his said will which was duly proved in the York district registry of Her Majesty's Court of Probate by the said John Brown And whereas the said John Brown hath contracted with the said Thomas Smith for the sale to him of the messuage and hereditaments hereinafter described and intended to be hereby assured being the said Hazeldean Farm devised by the said herein before recited will of the said Matthew Brown deceased free from incumbrances at the price of one thousand pounds Now THIS INDENTURE WITNESSETH that in consideration of the sum of one thousand pounds upon the execution of these presents, paid by the said Thomas Smith to the said John Brown for the purchase of the fee simple of the hereditaments hereinafter described and intended to be hereby granted, with the appurtenances (the receipt of which sum of one thousand pounds the said John Brown doth hereby acknowledge and from the same doth hereby release the said Thomas Smith his heirs executors administrators and assigns) He the said John Brown doth hereby grant and the said Mary Brown with the concurrence of the said John Brown testified by his being party to and exeouting these presents and for the purpose of extinguishing her right of dower doth by these presents which are intended to be acknowledged by her pursuant to the provisions of the Fines and Recoveries Abolition Act release and confirm unto the said Thomas Smith his heirs and assigns all that messuage or farm house and farm with the several cottages closes and parcels of land belonging thereto known as Hazeldean Farm situate in the parish of Sutton aforesaid and formerly in the occupation of the said Matthew Brown deceased and now or lately in the occupation of the said John Brown and which are more particularly described in the schedule hereunder written and delineated with the abuttals thereof in the map drawn in the margin of these presents and therein coloured red (such schedule and map being respectively extracts from the apportionment of the tithe comGeneral words. mutation rent-charge for the said parish and from the map therein referred to) Together with all buildings erections fix Operative words. Parcels. |