SECT. II. Of the executor's assent to a legacy—on what principle necessary-what shall amount to such assent-Assent express or implied-absolute or conditional-has relation to the testator's death-when once made, irrevocable-when incapable of being made. BUT the bequest of a legacy, whether it be general or specific, transfers only an inchoate property to the legatee. To render it complete and perfect, the assent of the executor is requisite. (a) On him all the testator's personal property is devolved, to be applied in the first place, to the payment of debts; and, therefore, before he can pay any legacies with safety, he is bound to see whether, independently of them, a fund has been left sufficient for the demands of creditors. In case the assets prove inadequate, the legacies must abate or fail altogether, according to the extent of the deficiency. [307] If, on a failure of assets, he pay legacies, he makes himself personally responsible for the debts to the amount of such legacies. Hence, as a protection to the executor, the law imposes the necessity of his assent to a legacy before it can be absolutely vested; and such assent when once given, is considered as evidence of assets, and an admission on the part of the executor that the fund is competent. (b) If without the assent of the executor, the legatee take possession of the thing bequeathed, the executor may maintain an action of trespass against him. (c) Nor even in case of a specific legacy, whether a chattel real or personal be in the (a. 3 Bac. Abr. 84. 2 Bl. Com. 512. Harg. Co. Litt. 111. Aleyn. 39. Abney v. Miller, 2 Atk. 598. Mead v. Lord Orrery, 3 Atk. 240. Farrington v. Knightly, 1 P. Wms. 554. Bennet v. Whitehead, 2 P. Wms. 645: (b) Off. Ex. 27, 28. (c) Off. Ex. 27, 223. 3 Bac. Abr. 84. 4 Bac. Abr. 444. Dyer, 254. Keilw. 128. custody or possession of the legatee, and the assets be fully adequate to the payment of debts, has he a right to retain it in opposition to the executor, by whom in such case an action will lie to recover it. (d) Nor, has such legatee authority to take possession of the legacy without the executor's assent, although the testator by his will expressly direct that he shall do so; for, if this were permitted, a testator might appoint all his effects to be thus taken in fraud of his creditors. (e) And where stock in the public funds is bequeathed specifically, the Bank cannot refuse to permit the executor to transfer it, he not having assented to the legacy. (ee) Yet previously to the assent of the executor a legatee has such an interest in the thing bequeathed, as that, in case of his death before it be paid or delivered, it shall go to his re[308] presentative, (f) or, in case of the outlawry of the legatee, shall be subject to the forfeiture. (g) If A. release by will a debt due to him from B., it is the better opinion that the assent of the executor is necessary to give effect to the testator's intention; for although on the one hand it may be alleged that the party to whom the debt is bequeathed must necessarily have it by way of retainer, and that such a clause operates rather as an extinguishment than as a donation, and therefore that it needs no such assent as where there is to be a transfer of the property: yet on the other hand, a debt so released is regarded, with great reason, in the light of a legacy, and, like other legacies, not to be sanctioned by the executor, in case the estate be insufficient for the payment of debts. But as soon as the executor assents, and not before, it shall be effectually discharged. (h) With respect to what shall constitute such assent on the part of the executor, the law has for this purpose prescribed no specific form; a very slight assent is held sufficient. (i) It may be either express or implied, absolute or conditional. The executor may not only in direct terms authorize the legatee to take possession of the legacy, but his concurrence [309] may be inferred either from indirect expressions or particular acts. And such constructive permission shall be equally available. Thus, for instance, if the executor congratulate the legatee on his legacy; or if a horse is bequeathed to A., and the executor requests him to dispose of it; or if B. proposes to purchase the horse of the executor, and he directs B. to buy it of A.; or if the executor himself purchase the horse of A., or merely offer him money for it; this in either case amounts to an assent by implication to the legacy. (k) So where A., the devisee of a term, granted it to the executor, his acceptance of the grant from A. was held to be an implied permission that the term should be A.'s to grant. (1) So where J. S. seised in fee of a foreign plantation, devised it to A., and the executor granted a lease of it for years, reserving rent in trust for A., this was adjudged a sufficient assent. (m) If a term be devised to A. for life, remainder to B. the assent of the executor to the devise to A. shall operate as an assent of the devise over to B., and vests an interest in him accordingly. (n) So an assent to such estate in remainder is an assent to the present estate: (0) For the particular estate and the remainder constitute but one estate. (p) But if a lessee for years bequeath a rent to A., and the land to B., the [310] executor's assent that A. should have the rent, is (i) Noel v. Robinson, 1 Vern. 94. S. C. 460. S. C. 2 Ventr. 358. 4 Bac. Abr. 445. (k) 4 Bac. Abr. 445. Off. Ex. 226. Com. Dig. Admon. C. 6. Shep. Touchs. 456. (1) Off. Ex. 226. (m) Noel v. Robinson, 2 Ventr. 358. (n) Com. Dig. Admon. C. 6. 10 Co. 47 b. 1 Roll. Abr. 620. Plowd. 545, in note. Adams v. Price, 3 P. Wms. 12. (0) Com. Dig. Admon. C. 6. no assent that B. should have the land, because the rent and the land are distinct legacies; but, under special circumstances, an executor's assent to one legacy may enure to another, as if the case last-mentioned be reversed: The executor's assent that B. should have the land seems to imply his assent that A. should have the rent; for the necessity of the executor's assent is established with a view to creditors; now to them the land is equally unproductive, whether it passes to B. charged with the rent, or not; and also, as it was the testator's intention that B. should hold the land subject to the rent to A., the executor's assent to B.'s having the land shall, in conformity to the will, be construed an assent to the legacy to A. (q) So an assent to a devise of a lease for years is an assent to a condition or contingency annexed to it: As, if there be a devise of a term to the testator's widow, so long as she continues unmarried; and if she marry, then of a rent payable out of the land; the executor's assent to the devise of the term is an assent to that of the rent in case of the devisee's marriage. (r) An assent may also be absolute or conditional. If it be of the latter description, the condition must be precedent: As, where the executor assents to the devise of a term, if the devisee will pay the rent in arrear at the testator's death. In that case, if the condition be not performed, there is no assent; but if the assent be on a conditon subsequent, as [311] provided the legatee will pay the executor a certain sum annually such condition is void, and a failure in performing it shall not divest the legatee of his legacy. (s) The state of the fund may require the executor to impose a condition precedent to his payment of the legacy; but if he once part with it, he has no right to clog it with future stipulations, and make that legacy conditional which the testator, gave absolutely. (t) : (9) Off. Ex. 237. (r) Com. Dig. Admon. C. 6. 1 Roll. Abr. 620. (s) Com. Dig. Admon. C. 8. Off. Ex. 238. 4 Bac. Abr. 445. Leon. 130, 131. (t) Off. Ex. 238. The assent of an executor shall have relation to the time of the testator's death. Hence, if A. devise to B. his term of years in tithes, in an advowson, or in a house or land, and after the testator's death, and before the executor's assent, tithes are set out, the church becomes void, or rent from the under tenant becomes payable, the assent by relation shall perfect the legatee's title to these several interests. (u) So such assent shall by relation confirm an intermediate grant by the legatee of his legacy. (v) If an executor once assent to a legacy, he can never afterwards retract, and, notwithstanding a subsequent dissent, a specific legatee has a right to take the legacy, (w) and has a lien on the assets for that specific part, and may follow them. And an action at law lies against an executor to recover a specific chattel bequeathed, after his assent to the bequest. (x) If a term is devised to A., and the executor, before he [312] assents to the devise, take a new lease of the same land to himself for a larger term in possession, or to commence immediately, the term devised is merged, so that it cannot pass to A., although the executor should afterwards assent. (y) An assent to a void legacy is also void. (≈) Such is the nature of an executor's assent to a legacy. We have already seen that he is competent to give it before probate. (a) But if he has not attained the age of twentyone years, he is incapable by the above-mentioned statute 38 Geo. 3, c. 87, (b) of the functions of an executor, and therefore his assent is of no validity. (c) (u) Off. Ex. 249. (v) Ibid. 250. (w) Ibid. 227. 4 Bac. Abr. 445. Mead v. Lord Orrery, 3 Atk. 238. (*) Doe v. Guy, 3 East, 120. (y) Off. Ex. 228. (z) Plowd. 526. (a) Vide supra, 46. (b) Supra, 31. (c) Vide Com. Dig. Admon. E. Off. Ex. 224. |