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CHAPTER THE THIRD.

OF THE TITLE OF AN EXECUTOR OR ADMINISTRATOR TO THE

EXECUTORY AND CONTINGENT INTERESTS OF THE TESTATOR

OR INTESTATE.

CONTINGENT and executory interests, whether in real or personal estate, are transmissible to the representative of a party dying before the contingency, upon which they depend, takes effect (a).

Thus in Pinbury v. Elkin (b), the testator, in case his wife should die without issue by him, then, after her decease, gave 801. to his brother; after the testator's death, the brother died in the lifetime of the widow, who afterwards died without leaving any issue: The Court (Lord Macclesfield) held that this possibility devolved to the executors of the brother, though he died before the contingency happened; and decreed the legacy accordingly, with interest from the widow's death.

So in King v. Withers (c), the testator devised land to his son B.; but if he should die without issue male of his body, then living, or which might be afterwards born, that then his daughter should receive at her age of twenty-one, or day of marriage, which should first happen, the sum of 3,5001. (over and above a portion bequeathed to her); but in case the contingency of the said son's dying should not happen before his daughter's said age, or day of marriage, that then she should receive that sum whenever such contingency might happen; and charged the said legacy or portion on

(a) Fearne, Conting. Rem. 554. 2 Saund. 388, n. note to Purefoy v. Rogers. See also stat. 1 Vict. c. 26, (the new Statute of Wills), s. 3.

(6) 1 P. Wms. 564.

(c) Cas. temp. Talb. 117. S. C. 3 P. Wms. 414. Prec. Chanc, 348. 3 Bro. P. C. 135, 2d edit.

the real estate: The daughter married, having attained her age of twenty-one, and died in the lifetime of her brother B., who afterwards died without issue male : Lord Talbot decreed, that the legacy should be raised, for the benefit of the administrator (the husband) of the daughter: and he held, that though it did not absolutely vest, because it might never arise, yet it so far vested as to be transmissible to the representative. This decree was afterwards affirmed in the House of Lords.

In Chauncey v. Graydon (d), legacies were devised to children, to be transferred to them at their respective ages of twenty-one, or days of marriage; and in case any of them should die under that age, or marry without consent, &c., his or her share should go to the others at their ages of twenty-one: Lord Hardwicke held, that a share accruing by the forfeiture of a child's marrying without consent, rested in another who attained twenty-one but died before such forfeiture, so as to entitle the personal representative of such deceased child, to an equal share thereof, with the other surviving children; for (said he) where either real or personal estate is given upon a contingency, and that contingency does not take effect in the lifetime of the devisee, yet if real, his heir, and if personal, his executor, will be entitled to it: for though in law a possibility is not assignable, yet in equity, where it is done for a valuable consideration, it has been held to be assignable, and is transmissible to the representative of the devisee.

So in Peck v. Parrot (e), B., in consideration of natural love and affection for her niece, and to secure to her separate use her personal estate after her own decease, granted all her personal estate to trustees in trust for herself during her natural life, and after her decease, and payment of her debts and funeral expenses, in trust for the sole and separate use of her niece alone, and not for her husband, or for such person as she should appoint; the niece died in the lifetime of B.;

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and after B.'s death, her (B.'s) executor and residuary legatee filed his bill against the personal representative of the niece, for this personal estate: Lord Hardwicke said, that, under a trust, a contingent interest might go to the executor or administrator, though not vested in the person during his life; and that in the same manner the contingent interest here would go to the representative of the niece; and accordingly dismissed the bill.

These cases, and others referred to in the note below (f), establish the principle, that contingent and executory interests, though they do not vest in possession, may vest in right so as to be transmissible to executors or administrators. But it is obvious that where the contingency, upon which the interest depends, is, the endurance of the life of the party entitled to it till a particular period, the interest itself will be extinguished by the death of the party before the period arrives, and will not be transmissible to his executors or administrators.

This consideration leads directly to that portion of the doctrine of Lapsed Legacies, which has reference to lapse occasioned by the death of the legatee before the death of the testator, or before any other period, upon the arrival of which in the lifetime of the legatee, the right to the legacy depends. But it will be convenient to postpone the investigation of this doctrine, and to consider it hereafter, together with the subject of Legacies generally. It may be observed in this place, that the executor or The executor

of the object administrator of the object of a power cannot be an appointee of a power under it: Thus where a husband gives his wife a power of cannot be an

appointee. appointment of a fund in favour of his children, and a child dies without any appointment having been made to him, no part can be appointed to his executor or administrator (g).

(f) Barnes v. Allen, 1 Bro. C. C. Meriv. 130. 181. 3 Ves. 208. Perry v. Woods, (9) Maddison v. Andrew, 1 Ves. 3 Ves. 234. Massey v. Hudson, 2 Sen. 59.

11. Bk. 11

CHAPTER THE FOURTH.

WHAT SUITS COMMENCED BY THE TESTATOR OR INTESTATE MAY

1

1

BE CONTINUED BY THE EXECUTOR OR ADMINISTRATOR: AND

HEREWITH OF SCIRE FACIAS, ERROR, AND CERTIORARI.

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vivor.

Suits in equity: WITH respect to the continuance by the executor or

administrator of suits in equity commenced by the deceased: order of re- Wherever a suit abates by death, and the interest of the per

son whose death has caused the abatement is transmitted to
that representative which the law gives or ascertains, as an
heir-at-law, executor or administrator, so that the title cannot
be disputed, at least in the Court of Chancery, but the person
in whom the title is vested is alone to be ascertained, the suit
may be continued by an Order to revive merely (a).

Suits at law. As to the continuance of suits at law commenced by the

deceased, it will be convenient to investigate the subject,
1st, In cases where the testator or intestate died before
final judgment: 2dly, In cases where he died after final

judgment.
1. Where tes- 1. Where the testator or intestate died before final judg-
tator dies be-
fore final judg. ment. At common law the death of a sole plaintiff or

ment:

(a) Mitf. Pl. 69, 4th edit. Since the stat. 15 & 16 Vict., c. 86, s. 52, an order to revive may be obtained without any bill of revivor. By the 63rd Order of May, 1845, “In cases where a suit abates by the death of a sole plaintiff, the Court, upon motion of any defendant, made on notice served on the legal personal representative of the deceased plaintiff, may order that

such legal representative do revive
the suit within a limited time, or
that the bill be dismissed.” Da-
niell's Pract. 785, 2d edit. Where,
instead of reviving the suit, the
executor files an original bill in
respect of the same matters, the
Court will stay proceedings in the
latter suit until the costs of the
former be paid : Altree v. Hordern,
5 Beay. 623.

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defendant, at any time before final judgment, would have
abated the suit (b).
But now, by stat. 15 & 16 Vict. c. 76 (Common Law Pro. Common Law

Procedure Act,
cedure Act, 1852), s. 135, the death of a plaintiff or defendant 1852 :
shall not cause the action to abate, but it may be continued
as thereinafter mentioned.
And by s. 137, “ in case of the death of a sole plaintiff, proceeding in

case of death
or sole surviving plaintiff, the legal representative of such of sole, or sole
plaintiff may, by leave of the Court or a Judge, enter a surviving

plaintiff.
suggestion of the death, and that he is such legal repre-
sentative, and the action shall thereupon proceed; and if
such suggestion be made before the trial, the truth of
the suggestion shall be tried thereat, together with the
title of deceased plaintiff, and such judgment shall follow
upon the verdict in favour of or against the person making
such suggestion, as if such person were originally the
plaintiff (c).”
By sect. 139, “ the death of either party between the ver- Death between

verdict and
dict and the judgment shall not hereafter be alleged for

judgment:
error, so as such judgment be entered within two terms
after such verdict.” This appears to be merely a re-enact-
ment, (confined, it should seem, by the effect of s. 227, to
actions personal brought by writ of summons,) of the stat.
17 Car. II. c. 8, s. 1, by which it is enacted, that "in all
actions, personal, real or mixed, the death of either party,
between the verdict and the judgment, shall not hereafter be
alleged for error, so as such judgment be entered within two
terms after such verdict.” It has been holden in the con-
struction of the latter Act, that the death of either party
before the assizes is not remedied; but if the party die after

(6) 2 Saund. 72, n, 6th edition, order; and in default of such proceed-
note to Underhill v, Devereux. ing, the defendant shall be entitled

(c) By stat. 17 & 18 Vict., c. 125 to enter a suggestion of such default, (C. L. Procedure Act, 1854), s. 92, and of the representative character the defendant may apply by sum- of the executor or administrator, mons to compel the executor or and to have judgment for the costs administrator to proceed according of the action and suggestion, to be to the provisions of the Act of 1852 levied of the goods of the testator within such time as a judge shall or intestate.

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