over to other children of the marriage should the child marry would be void for remoteness, as the class is not necessarily ascertainable within twenty-one years after the death of the survivor of the appointors (2). repugnant Again a condition is void which is inconsistent with and Condition repugnant to the gift, as for instance restraining its aliena- to absolute tion (a), and the law is the same both as to real and personal estate. gift. restraining But although a condition restraining alienation is void, Condition yet property may be given to a man for his life, with a con- alienation. dition so expressed as to amount to a limitation determining the life estate in the event of alienation, and in that case neither the donee nor his assignees can have it beyond the period limited (b). Where a life interest is given subject to forfeiture if the tenant for life should charge or incumber the property, and there is a gift over, for instance in favour of children, on such forfeiture, a forfeiture will be produced by a charge or incumbrance, notwithstanding that, in the event which happens of there being no children, there is no person to take under the gift over (c). the event of Where the words of the proviso for forfeiture on bank- Forfeiture in ruptcy are words of futurity, the forfeiture does not take bankruptcy. place if the bankruptcy has been annulled before the first payment becomes due, or in other words before any right to receive the income in question has accrued to the trustee in the bankruptcy (d). A forfeiture clause in a Will, providing that in the event of alienation or bankruptcy the interest of the legatee under the Will shall cease and go over, applies to a bankruptcy either before or after the date of the Will and existing at the () Re Gage, [1898] 1 Ch. 498. (a) Bradley v. Peixoto, (1797) Ves. 325; Re Rosher, (1884) 26 C. D. 801; Re Dugdale, (1888) 38 C. D. 176, 180. (b) Brandon v. Robinson, (1811) 18 Ves. 429, 433; Re Machu, (1882) 21 C. D. 838, 842. (c) Hurst v. Hurst, (1882) 21 C. D. 278. (d) Re Parnham's Trusts, (1876) 46 L. J. Ch. (N. S.) 80, 413; Robertson v. Richardson, (1885) 30 C. D. 623, 628; Re Loftus-Otway, [1895] 2 Ch. 235. Absolute interest may be given over before time of possession. Gift over if donee dies without dis posing of the property is void. Effect of want of gift over. Conditions not importing testator's death (e). But this rule ought not to be applied to any but those particular acts of forfeiture, and ought not, in the absence of express words, to be extended to other acts of forfeiture, as for instance a marriage of a kind forbidden by the testator (f). An absolute interest in personalty, whether vested or contingent, may be given over upon alienation before the time of possession (g). If there is an absolute bequest of property, with a proviso that if the legatee dies without having disposed of it by Will, or otherwise, his interest in it shall cease and it shall go over to another, the gift over is void and the legacy absolute, since it is an attempt to alter the course of devolution at the moment of devolution and at no other time (h), and there is no distinction between realty and personalty in this respect (i). Except in the case of a condition rei non licitæ, as a condition in restraint of marriage, or not to dispute the Will, or not to aliene, there is no rule of law that a condition subsequent shall operate merely in terrorem unless the legacy is given over to another on breach of the condition. Therefore, where there was a condition subsequent in a Will, revoking a bequest to the testator's daughter in case she became a nun, Lord Cranworth held that the condition was a lawful one, and that her interest ceased upon a breach of it, though there was no gift over (k). (5) Conditions in Restraint of Marriage. With regard to conditions in restraint of marriage, it is absolute celi- settled that conditions which do not directly or indirectly import an absolute injunction to celibacy are valid (1). Thus bacy valid. (e) Metcalfe v. Metcalfe, [1891] 3 Ch. 1, 4. (f) Re Chapman, [1904] 1 Ch. 431; [1905] A. C. 106. (g) Theobald on Wills (7th ed.), p. 631; Churchill r. Marks, (1844) 1 Coll. 441; Re Porter, [1892] 3 Ch. 481. (h) Shaw r. Ford, (1877) 7 C. D. 669; and see Re Percy, (1883) 24 C. D. 616; Re Parry and Daggs, (1885) 31 C. D. 130. (i) Shaw r. Ford, ubi sup. (k) Re Dickson's Trust, (1850) 1 Sim. N. S. 37. (1) Scott v. Taylor, (1788) 2 Dick. 712, 721. conditions restraining marriage under twenty-one, or other reasonable age, without consent (m), or requiring or prohibiting marriage with particular persons (n), are valid. Even a restraint upon a woman's freedom of marriage to be continued during the whole of her life unless her marriage were with the consent of a married person is valid (o). So also a condition or gift over on the marriage of a widow (p) or a widower (q) is valid in respect of personal estate, which is regulated by the civil law, and also to devises of land, which are regulated by the common law (r). until mar over on mar A gift to a legatee for life if she shall so long remain Limitation unmarried is valid (s). Limitations until marriage may be riage. good where limitations defeasible on marriage would be bad (t). Further, even with respect to conditions in restraint of Limitation marriage generally, if there be a direction that the legacy, in riage. the event of a breach, shall go over to another legatee, the condition is obligatory, for the Court is bound to protect the interest of the party in whose favour the ulterior limitation is made (u). (6) Legacy to a Person in the Character of Executor. as to legacy to executor. A legacy to a person in the character of executor is con- Presumption sidered to be given upon the implied condition that he clothe himself with that character. may be The presumption is that a legacy to a person appointed Presumption executor is given to him in that character, and it is on him to rebutted. show something in the nature of the legacy, or other circumstances arising on the Will, to repel that presumption (x). (m) Beaumont r. Squire, (1852) 17 Q. B. 905. As to what is sufficient consent see cases cited in Williams (10th ed.) 1023 et seq. (n) Hodgson v. Halford, (1879) 11 C. D. 959; Jenner r. Turner, (1880) 16 C. D. 188, and other instances given in Williams (10th ed.) 1021. (0) Re Whiting's Settlement, [1905] 1 Ch. 96. (p) Newton v. Marsden, (1862) 2 J. & H. 356. (4) Allen v. Jackson, (1875) 1 C. D. 399. (r) Jones r. Jones, (1876) 1 Q. B. D. 279. (*) Heath v. Lewis, (1853) 3 De G. M. & G. 954. (t) See Evans v. Rosser, (1864) 2 (u) Williams (10th ed.) 1023. Parol evi dence admissible. What sufficient indica tion of inten tion to rebut presumption. Executor need not prove Will provided he manifests intention to act. Request that executor should have handsome gratuity void: Parol evidence is admissible to rebut this as well as any other presumption (y). If the presumption is rebutted the legatee will be entitled to receive the legacy whether he accepts the office or not. The fact of a legacy being payable to a legatee (who is named as one of the executors) after the death of a tenant for life rebuts the presumption that the legacy was given to him. in his character of executor (z). So where the gift is expressed to be in respect of the testator's relationship, or as a mark of respect or friendship, the presumption is rebutted by the context (a). The mere fact, however, that the gift of the legacy precedes the appointment of the legatee as executor, or that the legacies to several persons appointed executors differ either in their amount or subject-matter, is not enough by itself to rebut the presumption (b). It is not absolutely necessary to prove the Will in order to entitle a person to a legacy as executor. It will be a sufficient assumption of his character of executor if the legatee unequivocally manifests an intention to act in the executorship, although prevented by death from proving the Will (c). A request by a testator that a handsome gratuity should be given to each of his executors is void for uncertainty (d). But a gift of reasonable remuneration to an executor for his trouble is effectual, and the Court will ascertain the remuneration. amount (e). secus, reasonable (y) Re Appleton, ubi sup. () Re Reeve's Trusts, (1877) 4 C. D. 841. (a) See Williams (10th ed.) 1029 et seq. (b) Re Appleton, ubi sup. (c) Williams (10th ed.) 1030; Lewis r. Matthews, (1869) L. R. 8 Eq. 277. (d) Jubber v. Jubber, (1839) 9 Sim. 503. (e) Jackson v. Hamilton, (1846) 3 J. & L. 702. CHAPTER XXXVI. OF THE EXECUTOR'S ASSENT AND OF THE PAYMENT OF LEGACIES AND DISTRIBUTION. SECT. 1.-Protection after issuing Advertisements. AFTER issuing advertisements, and taking the steps pointed out by the Act 22 & 23 Vict. c. 35, s. 29 (a), an executor or administrator will have the same protection against debts or claims, of which he has no notice, as if he had administered the estate under a decree of the Court (b); and after satisfying all claims of which he has notice the executor, or administrator with the Will annexed, may safely assent to the specific legacies, and pay the pecuniary legacies, and distribute the residue; and in the case of an intestacy the administrator may, in like manner, distribute the estate among the next-of-kin. Sect. 29 of 22 & 23 Vict. c. 35 is not confined to claims of creditors, but applies also to persons having claims as next-ofkin. It also affords protection to the sureties in an administration bond, where the administrator before distributing the assets of the intestate has pursued the course pointed out by that section (c). SECT. 2. Of the Executor's Assent. Inasmuch as the executor is responsible to the creditors for the satisfaction of their claims to the extent of the whole of the assets, as a protection to the executor the law imposes the necessity that every legatee, whether general or specific, and whether of chattels real or personal, must obtain the executor's assent to the legacy before his title as legatee can be complete and perfect (d). (a) See ante, p. 349. (b) Clegg v. Rowland, (1866) L. R. 3 Eq. 368. (c) Newton v. Sherry, (1876) 1 C. P. D. 246. (d) Williams (10th ed.) 1101. Effect of 22 & 23 Vict. c. 35, s. 29. Assent necessary to complete legatee's title. |