Rate of interest. General rule currency of ciled. English Courts can only order payment in English currency. Mode of ascertaining amount in English currency. interest, or where the accumulation of arrears has been occasioned by the misconduct of the party bound to pay (0). It makes no difference whether the annuity is charged on corpus or merely on income (p). Where a legacy has not been paid at the proper time, then, as between the legatee and the person entitled to the residue, it has been the rule of the Court ever since Sitwell v. Bernard (g) to allow the legatee interest at the rate of 4 per cent. only (in the absence of special circumstances), even although the residue may have produced interest at a higher rate (r). By Ord. 55, r. 64, where a judgment or order is made. directing an account of legacies, interest shall be computed thereon at 4 per cent. from the end of one year after the testator's death, unless otherwise ordered, or unless any other time of payment or rate is directed by the Will, and in that case according to the Will. SECT. 6.—Of Currency in which Legacies are to be Paid and Cost of Remittance. The general rule, apart from the context, is that if a testator domiciled abroad gives a sum of money by Will it shall be paid to the legatee in current money of the country where the testator was domiciled. It is immaterial that the legatee resides elsewhere, or that the assets of the testator are partly in the place of his domicil and partly elsewhere (s). Speaking generally, the Courts of this country have no jurisdiction to order payment of money except in the currency of this country. The sum ordered to be paid must be expressed in English money, or such order cannot be enforced by the ordinary writs of execution. Therefore, in such cases it becomes necessary to consider how much money in English currency the defendant ought to pay the plaintiff. The (v) Torre v. Browne, (1855) 5 H. L. C. 555, 577, per Ld. Cranworth. (P) Wheatley v. Davies, (1876) 35 L. T. 306. (q) (1801) 6 Ves. 520. (r) Re Campbell, [1893] 3 Ch. 468 472, per Stirling, J. (8) Saunders v. Drake, (1742) 2 Atk. 465. amount in English currency must be arrived at by taking the real value in English currency of the foreign currency at the place where payable as a purchaseable commodity, i.e., in practice, according to the rate of exchange existing at the particular time between the currencies (t). If the legatee requires payment to be made to him at a Cost of place elsewhere than where the assets are being administered, remittance. he must pay the cost of remittance (u), that is the cost of purchasing for and sending to the legatee a draft on the place of remittance in favour of the legatee for the equivalent. And in all cases where land alone is subjected by Will with the payment of a sum of money, in the absence of any contrary intention to be inferred from the context or circumstances, there is no obligation to pay the money at any place except upon the land, and therefore the cost of remittance to any other place must be paid by the legatee (x). (t) Manners r. Pearson & Son, [1898] 1 Ch. 581. (u) Cockerell v. Barber, (1810) 16 Ves. 461; Campbell v. Graham, (1830) 1 R. & M. 453. (x) Lansdowne v. Lansdowne, (1820) 2 Bligh, 60. CHAPTER XXXVII. OF ABATEMENT. IF the estate is insufficient to pay all the legacies in full, the general legacies must abate in equal proportions. Where there are general pecuniary legacies and general legacies of stock, such as a general legacy of £10,000 consols, the value of the stock must be estimated according to the price at the end of a year next after the testator's death, when the legatees would have been entitled to have the amount of their legacies purchased and transferred into their names (a). All simple gifts of annuities are held to be pecuniary legacies (b). Where a Will contains a general gift of an annuity, general gifts of legacies, and a gift of the residue, and the entire estate is insufficient to pay the annuity and the pecuniary legacies, the annuity ought to be valued and the annuitant is entitled at once to the amount of the valuation, subject to an abatement in proportion to the abatement of the pecuniary legacies; and although the annuitant should die before the payment of the annuity in full would have equalled the abated amount of the valuation, the other legatees will have no claim to the surplus of that amount (c). Where the annuity payable out of a deficient estate has been valued, the whole amount less the abatement will be directed to be paid to the annuitant, notwithstanding it was payable to him for life or until he should do or suffer some act whereby the annuity or any part thereof, if belonging to him absolutely, would become vested in some other person (d). (a) Anther v. Anther, (1843) 13 Sim. 422, 440. (b) Creed r. Creed, (1845) 11 Cl. & F. 491, 508. (c) Wroughten v. Colquhoun, (1847) 1 De G. & Sm. 357. (d) Re Sinclair, [1897] 1 Ch. 921, Kekewich, J., not following Carr v. Ingleby, (1831) 1 De G. & Sm. 362. woman from In Re Ross (e) the value of an annuity, less abatement, Married bequeathed to a married woman without power to anticipate, annuitant was ordered to be laid out in the purchase of an annuity for restrained her, but the married woman having died before this was done, anticipation. the capital sum was ordered to be paid to her legal personal representative. manner of In the case of several annuitants, if all the annuitants be Time and living at the period of the division, the values must be ascer- valuing tained as at the death of the testator; if they be all dead, the annuities. values must be taken to be the respective amounts of arrears; but if some be dead and others living, the values as to the former will be taken at the amount of the arrears, and as to the latter, at the amount of the arrears added to the calculated value of the future payments (ƒ). There is no difference in principle where the annuity has been given in expectancy on the death of another person (g). In Re Metcalf (h), in settling the proportions of abatement, the question was raised whether sums received by immediate annuitants during the first five years ought to be brought into hotchpot, and it was held, on principle, that as the income of the testator's estate, during the first five years after the testator's death, could never have been applicable in payment of the reversionary annuities, the annuitants in possession were not bound to bring into hotchpot sums received out of income. In Re Wilkins (i), Pearson, J. held where an annuity was Legacies and given free of duty and there was a deficiency, that the legacy given free duty payable on the sum apportioned to the annuitant should of duty. be deducted from the whole fund and the balance then divided proportionably. But it would seem the better view is that the legacy duty should be treated as an additional legacy and be added to the legacy for the purposes of abatement (k). The general rule is, that if there be a clear gift of a life interest and of a reversion, and the estate proves insufficient, (e) [1900] 1 Ch. 162. (ƒ) Todd r. Bielby, (1859) 27 Beav. 353. (g) Potts r. Smith, (1869) L. R. 8 Eq. 683. (h) [1903] 2 Ch. 424. (i) (1884) 27 C. D. 703. (k) Re Turnbull, [1905] 1 Ch. 726. annuities Abatement tenant for as between life and reversioner. As between annuitant and residue. As between out of and residue of a specific fund. each party, the tenant for life and the reversioner, must bear the loss in proportion to his interest; but that if there is a gift of an annuity and a residuary gift, the annuity takes precedence, and the whole loss falls on the residuary legatee (1). Where a specific fund is given upon trust for sale, and sums payable thereout to pay £600 to A. and £700 to B., and the legacy of £700 fails by B.'s death in the testator's lifetime, if the specific fund proves deficient to pay both sums of £600 and £700, there will be no abatement of the £600 legacy in favour of the residuary legatee, but it will be considered a first charge on the proceeds of sale (m). No precedence from moral obligation to provide for legatee: nor by direction to pay legacy immediately or by a certain time nor by saying "out of the first money or "in the first place." But where a testator, in disposing of a specific fund, after he has given certain portions, comprises the remainder under the term "residue," if, on the construction, he intended the word "residue" to mean a fractional part of the whole, in that case, if the fund proves deficient, the loss will fall on all the persons interested in proportion to their shares, although the last portion was called the residue (n). Near relationship, or that a man is morally bound to provide for his widow and children, does not of itself give to such a legatee priority over mere strangers, if the estate is insufficient to pay all legacies in full (0). Moreover, a mere direction to pay a legacy immediately, or within one month, or within three months after a testator's decease, is no evidence of any intention on the part of the testator to give priority to that particular legacy in case of a deficiency in the estate, because it is to be presumed that the testator intended all the legacies to be paid in full when he gave them (p). So also saying "out of the first money belonging to me," or "imprimis," or "in the first place," is treated, apart from any contrary context, as only consequential to the direction that the legacy should be paid immediately, and such expressions (7) Croly r. Weld, (1853) 3 De G. (m) Re Tunno, (1890) 45 C. D. 66. (1874) L. R. 17 Eq. 440. (0) Re Schweder's Estate, [1891] 3 Ch. 44. (P) Ibid. |