Analogy of statute 21

Jac. I. c. 16 inapplicable to breach of trust.

Effect of

Trustee Act, 1888, s. 8.

set up wrongful payments by way of devastavit as a defence in order to claim the benefit of the Statute of Limitations. For instance, executors having distributed the personal estate among simple contract creditors and beneficiaries, with knowledge of a mortgage debt unsatisfied, the mortgaged property subsequently becoming insufficient, and interest falling into arrear, the executors are liable to account to the mortgagees for the personal estate misapplied (y).

The analogy of the statute of 21 Jac. I. c. 16 does not apply to a liability for a breach of trust. The trustee himself cannot set up the statute, and his personal representative or heir or devisee is in no better position (2).

The Trustee Act, 1888 (51 & 52 Vict. c. 59), s. 8, provides as follows: (1) "In any action or other proceeding against a trustee or any person claiming through him, except where the claim is founded on any fraud or fraudulent breach of trust to which the trustee was party or privy, or is to recover trust property, or the proceeds thereof still retained by the trustee, or previously received by the trustee and converted to his use, the following provisions shall apply :—

(a) "All rights and privileges conferred by any Statute of Limitations shall be enjoyed in the like manner and to the like extent as they would have been enjoyed in such action or other proceeding if the trustee or person claiming through him had not been a trustee or person claiming through him.

(b) "If the action or other proceeding is brought to recover money or other property, and is one to which no existing Statute of Limitations applies, the trustee or person claiming through him shall be entitled to the benefit of and be at liberty to plead the lapse of time as a bar to such action or other proceeding in the like manner and to the like extent as if the claim had been against him in an action of debt for money had and received, but so nevertheless that the statute shall

(y) Re Marsden, (1884) 26 C. D. 783; Re Hyatt, (1888) 38 C. D. 609, and see Lacons v. Warmoll, ubi sup. at p. 367, per Buckley, L.J.

(2) Brittlebank r. Goodman, (1868) L. R. 5 Eq. 545, 553; Woodhouse v. Woodhouse, (1869) L. R. 8 Eq. 514.

run against a married woman entitled in possession for her separate use whether with or without a restraint upon anticipation; but shall not begin to run against any beneficiary unless and until the interest of such beneficiary shall be an interest in possession."

(3) "This section shall not deprive any executor or administrator of any right or defence to which he is entitled under any existing Statute of Limitations."

By s. 1 (3) for the purposes of this Act the expression "trustee" shall be deemed to include an executor or administrator (a).

(a) See post, p. 581, as to the effect of this Act.

CHAPTER XXXII.

OF LEGACIES.

Definition of

"legacy."

Formerly
"legacy" and
"devise'
sometimes

used synony.
mously.

Now "legacy" used as applying to personal estate.

Forgiveness of debt.

Direction to charge for services.

SECT. 1.-What is a Legacy.

A LEGACY is a bequest or gift of goods and chattels by Will or testament; the person to whom it is given is styled the legatee; and if the gift is of the residue of an estate after payment of debts and legacies he is then styled the residuary legatee (a).

In some old reports and text-books the terms legacy and devise are used as synonymous. The definitions given in Termes de la Ley (1721) are as follows:-"Legacy (Legatum) is a term of the Civil Law, and it is that which we in our law call a devise, viz., lands or goods given unto any man by the Will or testament of another." "Devise is, where a man in his testament gives or bequeaths his goods or lands to another after his decease."

But at the present day, although words used by a testator may be construed as referring to real estate, yet independently of context "legacy" or "legatee" or "residuary legatee" cannot be understood as applying to anything but personal estate (b).

Words of remission or forgiveness of a debt amount to a specific legacy which is subject to payment of duty as such (c), and to the usual rules of administration which affect all legacies (d).

A direction in a Will authorising a professional man to charge for services for which otherwise he would have no right

(a) Tomlins' Law Dictionary (4th

ed.) (1835) "Legacy."

(b) Windus v. Windus, (1856) 6 De G. M. & G. 549.

(c) Att.-Gen. e. Holbrook, (1829) 12 Price, 407.

(d) Re Wedmore, [1907] 2 Ch. 277.

to charge operates by way of bounty or legacy (e), and it would seem liable to legacy duty (ƒ).

duty on a

But a direction for payment of duty chargeable upon any Direction for legacy, so that the legacy shall be free of duty, notwithstand- payment of ing the same may be deemed a legacy is not chargeable with legacy. duty as a legacy (g).

other than

There may be a valid trust legacy, or direction to executors Trust legacies to apply a sum of money for a particular purpose without for persons. there being any person capable, as against the executor, of enforcing it; as, for instance, a legacy to be applied in erecting a monument to the memory of the testator on consecrated or unconsecrated ground, or for the repair of such a monument; or as a provision for the testator's horses and dogs. Such a legacy is not a charity, and provided it is to come to an end within the limits fixed by the rule against perpetuities, it is perfectly valid (h).

In the absence of any other direction contained in the Will, pecuniary legacies are payable solely out of the personal estate. Where a testator bequeaths legacies and then bequeaths the residue of his real and personal estate, the legacies are charged upon the real estate or its proceeds; but they are primarily payable out of the personalty. Where, however, there is a direction to pay legacies out of a mixed fund- -as where real and personal estate is given upon trust for sale, and the legacies are directed to be paid out of the proceeds, or without a direction for an absolute conversion, an intention is shown of creating a mixed fund for their payment-the legacies are payable pro rata out of the real and personal estate in the event of the ultimate residue being undisposed of (i).

(e) Re White, [1898] 1 Ch. 297; [1898] 2 Ch. 217.

(f) Cf. Re Thorley, [1891] 2 Ch. 613, and see per Kekewich, J., in Re White, ubi sup., at p. 299.

(g) 36 Geo. III. c. 52, s. 21. As to what shall be deemed a legacy within the intent of the Act, see s. 7, and

Williams (10th ed.) 1770.

(h) Re Dean, (1889) 41 C D. 552, 557.

(i) Allan r. Gott, (1872) L. R. 7 Ch. 439; Re Boards, [1895] 1 Ch. 499; Re Spencer Cooper, [1908] 1 Ch. 130.

Legacies paypersonal directed to be paid out of

able out of

estate unless

mixed fund,

then pro rata.

General legacy.

Specific legacy.

Effect of s. 24 of Wills Act.

SECT. 2.-Distinction between General, Specific, Demonstrative, and Pecuniary Legacies.

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. A legacy is specific" when it is a bequest of a specified part of the testator's personal estate which is so distinguished. Thus, for example, "I give a diamond ring" is a general legacy which may be fulfilled by the delivery of any ring of that kind; while "I give the diamond ring presented to me by A." is a specific legacy, which can only be satisfied by the delivery of the identical subject (k). A specific bequest was defined by Jessel, M.R., in Bothamley v. Sherson (l), as being part of the testator's property itself and a part as distinguished from the whole of the residue. A bequest of all the testator's goods and chattels in a particular place or country, he having property elsewhere, is specific (m). So it has been held that a testator may, as between the beneficiaries claiming under his Will, specifically devise his share in freeholds which form part of partnership assets by giving it in a different direction to his general share in the business, and in giving effect to the testator's intention, the business being solvent, the liability to contribute to the partnership debts will be thrown on the testator's general share so as to free the specific legacy (n).

Sect. 24 of the Wills Act in effect provides that descriptions of real or personal property the subject of gift, primâ facie refer to and comprise the property answering to the description at the death of the testator. The application of this principle of construction to specific bequests is often attended with considerable difficulty. If, however, according to the true construction of the Will, the subject-matter of the bequest is not a specific sum, security, or investment, but is described in such a manner as to be generic-that is, to provide a genus, or class of objects-it may from its very nature be

(k) Williams (10th ed.) 911, 912.
(1) (1875) L. R. 20 Eq. 304.

(m) See Williams (10th ed.) 92.
(n) Re Holland, [1907] 2 Ch. 88.