the assets, he need not realize the assets, but may retain them in Chap. XX. specie. There is, however, no right of retainer out of "equitable assets. The Land Transfer Act, 1897, does not give the personal representative a right of retainer out of real assets. "2 It being the duty of the executor to apply all the property Assent to legacy. devolving on him in payment of the testator's debts, no legatee acquires a perfect title to his legacy until the executor assents to it; but before the assent is given the legatee has an inchoate right which is transmissible to his personal representatives on his death before payment. The assent may be express or implied, and whether it has been given is generally a question of fact. It may, for instance, be implied if the legatee obtains possession of the thing bequeathed to him and retains it for some time without any complaint by the executor.7 The executor is not bound to pay a legacy till the expiration of one Executor's year from the testator's death, even if an earlier payment is directed year. by the will; and an administrator has a like period of delay. An executor may appropriate a specific portion of the assets to Appropriation a legatee in satisfaction of his legacy". Legacies are either specific, general, or demonstrative.10 of specific assets to A specific legacy is a gift of a definite thing or part of the Legacies: testator's estate which the testator has clearly distinguished and specific; separated from the rest of his estate at the time of his death,11 and which is to be handed over in specie to the legatee; for instance, a gift of a specific chattel belonging to the testator, as "the diamond ring given to me on my marriage," or of money in a bag,12 or of a debt or part of a debt due to the testator is specific. 13 A specific legacy, if it be of a thing belonging to the testator at the date of his will, is liable to be adeemed by the testator parting with it in his lifetime, and the legatee will lose all benefit; 1 Re Gilbert, [1898] 1 Q. B. 282. 2 Thompson v. Bennett, 6 Ch. D. 739. Ante, p. 376. 3 Holder v. Williams, (1904) 1 Ch. 52. + Co. Litt. 111 a; Y. B. 11 H. 41, 84. 5 Went. Off. Ex. 69. Elliott v. Elliott, 9 M. & W. 27; 60 R. R. 653; Thorne v. Thorne, [1893] 3 Ch. 196. 7 Cole v. Miles, 10 Ha. 179; Williams on Executors, 1225-1239. 8 Wood v. Penoyre, 13 Ves. 333; 9 11 Per Lord Langdale, M.R., Stephen- App. Cas. 812. 12 Lawson v. Stitch, 1 Atk. 507. 13 Heath v. Perry, 3 Atk. 101. specific, ademption of; Chap. XX. if it be something which at the date of the will does not belong to the testator, but which he contemplates acquiring, the gift will fail if he never acquires the thing. -general; -demonstra tive. Income of specific legacy, or of legacy set apart. Bearing in mind that the will speaks from the testator's death,2 it might be thought that where a testator, having made a specific bequest of a thing, parts with that thing, and subsequently acquires another thing which at his death answers the description of the thing bequeathed, the thing subsequently acquired would pass; but this appears not to be the case. 66 A general legacy is a gift of something which has to be provided at the cost of the testator's estate, as a diamond ring," or 100l. sterling, or 100l. Consols, or an annuity. It is a legacy "which must be satisfied out of the testator's assets without reference to the nature of the property which he had at the date of his will or at the time of his death." 5 A demonstrative legacy is one which is in its nature a general legacy, but is directed by the testator to be paid out of a particular fund; for example, "1,000l. out of my 3 per cent. Consols."7 It has an advantage over a general legacy, as in case of deficiency of the estate for payment of all the legacies in full, it must nevertheless be paid in full out of the fund if the fund exists; but, on the other hand, if the fund does not exist, the legacy has to be paid out of the general assets. A vested specific legacy is regarded as separated from the testator's estate and appropriated to the legatee as from the time of the testator's death; and therefore dividends or interest accruing in respect of it before it is actually paid belong to the legatee. So a general legacy directed to be set aside at once on the testator's death carries interest at the rate of 41. per cent. 1 See Stephenson v. Dowson, 3 Beav. 342; 52 R. R. 149; Queen's Coll. v. Sutton, 12 Sim. 521. See further as to ademption, Theobald on Wills, 139 et seq. 2 Wills Act (1 Vict. c. 26), s. 24; ante, p. 365. 3 See Re Portal, 30 Ch. D. 50. 4 As to an annuity, see Heath v. Weston, 3 De G. M. & G. 601, 606; Cunningham v. Foot, 3 App. Cas. 974, 989; Hawkins on Wills, 298. Per Fry, J., Re Ovey, 20 Ch. D. 679. See per Ld. Thurlow, C., Ashburner v. Macguire, 1 W. & T. L. C. 780. 7 Kirby v. Potter, 4 Ves. 748; 4 R. R. 342. But if it had been "1,000%. Consols out of my 3 per cent. Consols," or "1,000l. part of my 3 per cent. Consols," it would be specific; ibid., and Mullins v. Smith, 1 Dr. & Sm. 204. See Re Pratt, [1894] 1 Ch. 491. 8 Sleech v. Thorington, 2 Ves. sen. 563; Barrington v. Tristram, 6 Ves. 345; 5 R. R. 322; Clive v. Clive, Kay, 600. from the death. But if a specific legacy is contingent, and the Chap. XX. subject-matter of the gift is not directed to be set apart from the rest of the estate, the interim income until the happening of the contingency falls into the residue of the testator's estate, or goes to his next of kin, as the case may be ;2 if it is directed to be set apart, the interim income goes with the legacy.2 A general legacy which is immediate, that is, where payment is not to be deferred until a time named by the testator, or until the death of a person to whom the income is given for life, bears interest at the rate (if any) directed by the will, or otherwise, at 4l. per cent.3 from the expiration of one year from the testator's death, unless it be given to a child of the testator or other person to whom he is in loco parentis, in which case it bears interest from his death.5 A vested general legacy payable in futuro, or a contingent general legacy,7 bears interest only from the time at which it. becomes payable, unless it be to an infant child of the testator or other person to whom he is in loco parentis.8 Interest on general legacy. what is. A gift of the residuary personal estate of the testator includes Residue, every interest in his personal estate which, in the event, has not been effectually disposed of. Thus, it passes lapsed and void legacies,10 and includes personal property over which the testator has a general power of appointment, and which he has by his will ineffectually appointed." If, however, a gift of a share of residue, or of the residue of residue, fails, the subject of the gift does not fall back into the residue but is undisposed of; 12 unless there is a direction that it shall fall into residue, and the residue is given to persons capable of taking it.13 1 Dundas v. Wolfe Murray, 1 H. & M. 425. See Gotch v. Foster, 5 Eq. 311; Re Whittaker, 21 Ch. D. 657. 2 Guthrie v. Walrond, 22 Ch. D. 573, 578; Re Woodin, [1895] 2 Ch. 309; Theobald on Wills, 158, 166. 3 R. S. C., Ord. 55, r. 64. See Seton on Decrees, 1510. Benson v. Maude, 6 Madd. 15; Wood v. Penoyre, 13 Ves. 325, 333; 9 R. R. 185. 5 Wilson v. Maddison, 2 Y. & C. C. C. 372; 60 R. R. 198. Tyrrell v. Tyrrell, 4 Ves. 1; Earle v. Bellingham, 24 Beav. 448. 7 Heath v. Perry, 3 Atk. 101. 8 Incledon v. Northcote, 3 Atk. 438; Re Moody, [1895] 1 Ch. 101. 9 Bernard v. Minshull, Johns. 276; Re Bagot, [1893] 3 Ch. 348. See Theobald on Wills, 209 et seq. 10 Cambridge v. Rous, 8 Ves. 25; 6 R. R. 199; Leake v. Robinson, 2 Mer. 392; 16 R. R. 168. Hawkins on Wills, 40. 11 Re Spooner, 2 Sim. N. S. 129; Bush v. Cowan, 32 Beav. 228. 12 Sykes v. Sykes, 3 Ch. 301; Green v. Pertwee, 5 Hare, 249; Lloyd v. Lloyd, 4 Beav. 231. 13 Re Palmer, [1893] 3 Ch. 369, 373; Re Allan, [1903] 1 Ch. 276. Chap. XX. Distribution estate. The Spiritual Courts, when they granted administration, endeavoured to force the administrator to distribute the of intestate's residue of the intestate's effects after payment of his debts among his next of kin; but their proceedings were stopped by the Courts of Common Law,1 the result being that the administrator was able to keep the residue for his own use. The law was altered by the Statute of Distributions, which provided3 for the distribution of the residue "amongst the wife and children or children's children if any such be, or otherwise to the next of kindred to the dead person in equal degree, or legally representing their stocks"; that is to say, one-third to the wife and two-thirds, by equal portions, to the children, and such persons as legally represent such children per stirpes, in case any of the children be dead; but if there is no wife, the entirety is to go among the children and their representatives. Then there is a provision for any child of the intestate, other than the heir at law, bringing into hotchpot, so as to make the shares of all the children equal, any advances made or land settled on him by the intestate. If there be no children nor any "legal representatives" of them, then one moiety of the estate is to be allotted to the wife and one moiety equally to the "next of kindred" who are in equal degree. If there are neither wife nor children, the entirety is to go among the next of kindred and their "legal representatives," but no representation is to be admitted among collaterals after brothers' and sisters' children, and only among them if there are brothers and sisters living.7 Intestates' 1890. 6 8 This Act applies to a partial intestacy; and also when a will becomes entirely inoperative owing to there being no person who can take any benefit under it at the death of the testator, for instance, where the sole beneficiary has predeceased the testator. It does not apply to the estates of married women.10 Under the Intestates' Estates Act, 1890,11 the estate of an intestate leaving a widow but no issue, where such estate does not exceed 500l., is to go absolutely to the widow, and, if the value of the estate exceeds 500l., in addition to her share of the 1 See the history of this stated, Carter v. Crawley, T. Raym. 496. 2 22 & 23 Car. 2, c. 10; see App. 3 lb. ss. 3, 5. Re Natt, 37 Ch. D. 517. 5 22 & 23 Car. 2, c. 10, s. 5. 7 Lloyd v. Tench, 2 Ves. sen. 215. 8 Twisden v. Twisden, 9 Ves. 413, 425; 7 R. R. 251. 9 Re Ford, [1902] 2 Ch. 605. 10 29 Car. 2, c. 3, s. 25. Ante, p. 374. 11 53 & 54 Vict. c. 29. residue, she is to have a charge on it to the amount of 500l. with Chap. XX. interest at the rate of 4l. per cent. from the intestate's death. This Act applies when a person dies without leaving a will,1 and not, like the Statute of Distributions, to cases of partial intestacy.1 Distribu tions. In the Statute of Distributions, the words" children's children" Statute of means "issue of children," and children and descendants of children are distinguished from next of kin.3 By "persons legally representing" children are meant their descendants in any degree, as distinguished from husbands or wives who survive children or their issue.3 "Next of kindred" means next of kindred exclusive of issue of the intestate. It is now settled that children and issue of deceased children take per stirpes, not per capita, that is to say, the estate is divisible into as many shares as there are living children of the intestate and deceased children who have left issue; and the issue of a deceased child take between them only the share which their deceased parent would have taken. Thus, if there be one child of the intestate and three grandchildren, children of a deceased child, the child takes one-half and the three grandchildren take one-half between them. A posthumous child takes the same share as if it was born in its father's lifetime.5 ment. The provisions as to advancement contained in the Statute of AdvanceDistributions apply to the estates of an intestate father only,7 and to the case in which he dies without a will and not to partial intestacy. The issue of a child who has been advanced cannot claim anything without bringing into hotchpot the amount advanced to that child. An advancement is any sum of considerable amount paid by the father or engaged to be paid by him after his death,10 as distinguished from sums of trivial amount, as pocket-money, a watch, or clothes,11 or sums expended on maintenance, education, or on the travelling expenses of a child.12 The heir at law, though he has not to bring into account the value of land which comes 14 Ves. 324. 9 Proud v. Turner, 2 P. Wms. 560. 11 Swinb. Pt. 3, s. 18, pl. 30; Elliot v. 12 Swinb. Pt. 3, s. 18, pl. 19; Morris v. Burroughs, 1 Atk. 403. |