Chapter XV: Section 4: Payment of Legacies

Attention is now to be given to the payment of legacies. It is evident that an executor cannot safely pay a legacy until he ascertains that the personal estate of the deceased is sufficient to pay the debts, and for this reason the law generally allows the space of a year to satisfy himself as to the condition of the personal estate.[160] And should an executor, acting under the impression that the condition of the assets was such as to entitle him to pay a legacy before the end of the year, pay it before, and if, afterwards, a deficiency arises, he is responsible for the payment of any claim or demand against the estate. Sometimes the exigencies of a person may require an earlier payment of a legacy, and in this case an executor may pay such legacy, provided he gets a bond, with two good sureties, to refund in case of any deficiency; this is the case by statute in New York,[161] and in many other States. Even if a testator desires a payment of a legacy before the expiration of a year, an executor is not bound to make payment.[162] As regards the time of payment, the law makes no difference between general or specific legacies.

The next inquiry may be as to when a legacy is to be paid, where a legatee is to become entitled at twenty-one, or at some other age, and dies, having a vested interest, before he attains the specified age. In this case, it is a rule that no payment is to be made until the time arrives when the deceased, if living, would become entitled.[163] But if interest be given during minority, the representative of the deceased may claim the legacy immediately.[164]

A legacy of £500 was given to the eldest son of A to be begotten, to place him out apprentice; A had a son born after the death of the testator; and on a bill brought by him for the legacy, it was decreed to be paid, though it was before the time when he was fit to be placed out an apprentice.[165] The following case brings up a reminiscence of a state of society that is now very unfamiliar to us at the present day:

The testator by his will emancipated his slave, and devised to him two hundred dollars, "to assist him in buying his wife." The specification of the object of the bequest does not qualify it, nor affect the legatee's right to it. The executors, it was decided, cannot compel him to use the two hundred dollars in the matrimonial market, nor delay him payment until he makes a purchase there.[166]

A testator devised as follows: "I lend to my wife the plantation whereon I now live, and after her decease I give and bequeath the said land to my child that my wife is now pregnant with, if a boy; and if it should be a girl, I give the said land to my son H, upon his paying to the said child, if a girl, one hundred pounds." The child proved to be a girl; and it was held that the legacy of one hundred pounds was not payable until the death of the testator's widow.[167]

If a legacy be given to A, with a bequest over if he succeed to a certain estate, or upon condition that it shall be void in that event, the legacy must be paid to A, notwithstanding.[168]

If a legacy be devised generally, it is regularly to carry interest from the expiration of the first year after the death of the testator; but if it be a specific legacy upon which interest can accrue, the interest will be given from the death of the testator, and it is immaterial whether the enjoyment of the principal is postponed by the testator or not.[169] Even if there be a direction to pay a general legacy as soon as possible, interest only begins at the end of a year.[170] But if the legatee, being of full age, neglects to demand it at that time, he cannot have interest but from the time of the demand, because a legacy differs from a debt.[171]

While this was formerly the rule, it is not now in force, for it has been held that, no matter whether the legatee demands or not, the legacy will draw interest. It was so decided in a case in New York.[172]

The general rule is, that a legacy payable at a future day does not carry interest before the time of payment; and the rule applies to an infant payable at twenty-one, unless in the case of an infant having a right to demand maintenance from the testator, or of the legacy to him being a residue, or there are special circumstances showing clearly an intention to give interest.[173] And if a legacy is given in lieu of dower, or is decreed to be a satisfaction of a debt, the court always allows interest from the death of the testator.[174]

A legacy to a child whose support and maintenance is otherwise provided for by the bounty of the testator, like a legacy to a more distant relative, or to a stranger, is not payable and does not draw interest until one year after the death of the testator, where no time of payment is prescribed by the will.[175]

An annuity bestowed by will, without mentioning any time of payment, is considered as commencing at the death of the testator, and the first payment as due at the expiration of one year; from which latter period interest may be claimed in cases where it is allowed at all.[176]

The rule as to interest being reckoned on a specific legacy from the death of the testator was strictly applied in the case of Churchill v. Speake,[177] where a testator made a specific bequest of a mortgage for £1,000 to his wife, and desired her to give the sum of £500 to M C, his grandchild; "but, for the time and manner of doing it, I leave it freely to herself, and as she shall see it best for her"; and the wife exercised this freedom so well as to live twenty years after the testator, and never paid the £500; and the court decreed payment of it to M C, with interest from the testator's death.

The inquiry to whom legacies are to be paid is one of great importance to the executor, who must be careful to pay legacies into the hands of those who have authority to receive them. It is a general rule that, where the legatee is an infant, and would be entitled to receive a legacy if he were of age, the executor is not justified in paying it either to the infant, or to the father, or any other relation of the infant, on his account, without the sanction of a court of equity.[178] And even in the case of a child who has attained majority, payment to the father is not good, unless it be made by the consent of the child, or confirmed by his subsequent ratification. It may happen that an executor has, with the most honorable intentions, paid the legacy to the father of the infant; nevertheless, he will be held liable to pay it over again to the legatee on his coming of age. And although such cases have been attended with many circumstances of hardship to the executor, yet he has been held responsible, on the policy of obviating a practice so dangerous to the interests of infants, and so naturally productive of domestic discord.[179]

Many of our States regulate the payment of legacies to infants by statute, as in New York, where a legacy of $50 may be paid to the father of the legatee, to the use and for the benefit of such minor; but, if it exceeds $50, it must be paid to the general guardian of the infant, who will be required to file a bond to pay it over to the infant.[180]

It was formerly the law that, if a legacy was given to a married woman, it should be paid to the husband. So, where a legacy was given to a married woman living separate from her husband, with no maintenance, and the executor paid it to the wife, and took her receipt for it; yet, on a suit instituted by the husband against the executor, he was decreed to pay it over again, with interest.[181] It was also adjudged that, if the husband and wife were divorced _a mensa et thoro_, and a legacy was left to her, the husband alone could give a proper receipt for it, and consequently to him alone was it payable.[182]

But now, by statutes in almost all of our States, a married female may take by devise and bequest, and hold to her sole and separate use, real and personal property, or any interest or estate therein, in the same manner, and with the like effect, as if she were unmarried.