if any person attests a will or codicil, to whom, or to whose wife or husband, any beneficial bequest or devise is given by the will, such devise or bequest shall be void as regards those persons, their wife or husband, or those claiming under them; but the witness shall be capable of being called to prove the will. The section does not apply to a charge or direction for the payment of debts. In order that the section may operate the witness must have attested the instrument which gives to him the benefit. Thus, if he attest a will in which he is given a legacy, and the will is afterwards confirmed by a codicil, to which he is not a witness, he can take under the will as republished by and incorporated in the codicil1.

1 Anderson v. Anderson, L. R. 13 Eq. 381.

V.

LEGACIES AND DONATIONES MORTIS CAUSA.

A LEGACY may be defined as some particular thing or things given or left by a testator in his will, to be paid or performed by his executor or administrator 1.

All legatees or devisees of every kind of property which devolves on the executor or administrator must get the executor or administrator's consent to the legacy or devise. This is necessary even when the executor or administrator is himself a legatee or devisee. Before such consent, no legatee or devisee has a legal right to the property if he takes possession of the property the executor or administrator has a legal right to recover it. No testator can dispense with the necessity for such consent: 'for if this were permitted a testator might appoint all his effects to be thus taken in fraud of his creditors'.' The legatee or devisee has merely an inchoate right to have the property if the executor consents. This right is transmissible by his will or on his death intestate.

After such consent has been given, the legatee or devisee has a legal right to the property as from the death3. He can therefore bring actions at law to recover it. The executor or administrator becomes personally liable to convey the property to him: for the consent amounts to an admission

1 Williams, Exors., p. 897. The term legacy is usually given to gifts of personal property; the term devise to gifts of real property. Both now pass through the executor or administrator; 60, 61 Vict. c. 65, § 1.

2 Williams, Exors., p. 1225.

3 Doe d. Lord Saye and Sele v. Guy, 3 East. 120.

of assets 1 to the extent of the legacy. The consent once given cannot as a rule be retracted 2. There is no necessity for the consent to take any particular form. But it must be clear and unambiguous. It may be either expressed or implied, e. g. an offer to buy the legacy of the legatee. In some cases the consent may be presumed on the principle that the representative must be taken to have acted in conformity to his duty, e. g. if the representative dies after the debts but before the legacies have been paid. The same rules apply to a consent by the executor to a legacy left to him. In this case, if an implied consent is relied upon, it must clearly appear that it was referable to the executor's character as legatee, and not merely to his character as executor: e.g. if he merely said that he would have a legacy according to the will, it would not be clear in which character he would have it *. There are two chief kinds of legacies :

(i) General. A legacy is general when it is so given as not to amount to a bequest of a particular thing or money of the testator, distinguished from all others of the same kind':' e. g. the gift of a gold watch.

(ii) Specific. A specific legacy is 'something which a testator, identifying it by a sufficient description and manifesting an intention that it should be enjoyed in the state and condition indicated by that description, separates in favour of a particular legatee from the general mass of his personal estate . E.g. a gift of the gold watch given to me by A.B. A gift of real estate is always specific. The reason for this is historical. When a will of real estate only passed the land belonging to the testator at the date of the will, any devise must have been a gift of the whole or part of the specific land owned by the testator at the time of making the will. Section 24 of the Wills Act enacted that 'every will shall be construed with reference to the real estate and personal

1 Infra, p. 221.

16 M. and W. 517.

2 For some exceptions see Williams, Exors., p. 1232.

Williams, Exors., p. 1019.

4 Traill v. Bull, 1 Coll. 352.

• Robertson v. Broadbent, L. R. 8 A. C. 812.

estate comprised in it to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will.' It has been held in a series of cases that this did not assimilate the effect of a general devise of realty to a general legacy of personalty. The effect of that is, as Lord Westbury on one occasion expressed it, that the legislature attributed to the will a continuing operation, as if the devise were repeated every moment until the testator's death: so that as to all the property it must be taken as if he made it the moment before his death 1.'

There is a third sort of legacy which partakes partly of the nature of a specific, partly of the nature of a general legacy. If a testator leaves a legacy of £50 simply, it is a general legacy: if a testator leaves a legacy of £50 out of the money now standing to his credit at his bank, it is what is called a demonstrative legacy: because the testator demonstrates or points out the particular fund from which the legacy is to be paid. So long as the specific fund lasts from which the legacy is to be paid, such a legacy is treated as a specific legacy. But if that fund has been exhausted it becomes wholly or partially a general legacy, according as it is necessary to resort wholly or partially to the general estate.

The differences between specific and general legacies are three:

(a) As to abatement. Where the estate cannot pay the testator's debts, and satisfy all the legacies, general legacies abate before specific legacies.

(b) Consequently specific legatees are entitled to be paid their legacies from the specific fund in priority to general legacies. The principle of these rules is clearly explained by Selborne, L.C., in Robertson v. Broadbent. The principle of the exemption of personal estate specifically bequeathed

1 Lancefield v. Iggulden, L. R. 10 Ch. 136, 143. Hensman v. Fryer, L. R. 3 Ch. 420.

2 L. R. 8 A. C. 812, 815.

is that it is necessary to give effect to the intention apparent by the gift. If the bequest is of a particular chattel, such as a horse or a ship, it is manifest that the testator intended the thing itself to pass unconditionally and in statu quo to the legatee which could not be if it were subject to the payment of funeral and testamentary expenses, debts and pecuniary legacies. As against creditors the testator cannot wholly release it from liability for his debts: but as against all persons taking benefits under his will he may. The same principle applies to everything which a testator, identifying it by a sufficient description, and manifesting an intention that it should be enjoyed or taken in the state or condition indicated by that description, separates in favour of a particular legatee from the general mass of his personal estate—the fund out of which pecuniary legacies are in the ordinary course payable.'

(c) Ademption. If the specific thing perishes or ceases to belong to the testator, the specific legatee cannot claim its value. He loses his legacy which is said to be adeemed.

Legacies are either vested or contingent.

If a legacy is vested in interest, the death of the legatee before the legacy falls into possession will not affect his right to the legacy. It will pass under his will, or to those entitled to succeed him ab intestato.

It will be otherwise if the legacy is contingent. As a rule all legacies are contingent on the legatee surviving the testator. If the legatee dies first, the legacy lapses. It goes to the residuary legatee or devisee, if the will contains a residuary bequest or devise: otherwise it goes to those entitled ab intestato.

So strong is this presumption, that even if a legacy is given to a man and his executors, administrators, and assigns, it will lapse if the legatee dies first. 'It has been decided that the mere addition of these words does not prevent the lapse of the legacy by the death of the legatee in the life time of the testator, being considered as only descriptive of the interest bequeathed, and because those who take by representation