Chapter VIII

LEGACIES TO EXECUTORS,--AND LEGATEES’ REMEDIES AGAINST THEM.

If a legacy be left to the executor, and he take possession of it generally, he will hold it under his official capacity; and his union of the double character of executor and legatee makes no difference, and his legacy is subject to all the caution and consequences which are required and wait upon other legacies--the same cumulation, abatement, and ademption. He only has a right to secure himself first of the several legatees. Assent is as necessary to his legacy as to others; and it may be given either expressly or by implication; and he is subject to the same liability and conditions. But yet he is entitled to the full distinction between the character of executor and legatee; and if he enter upon an estate as the former, it does not inculpate him in liabilities until he shall have assumed them as the latter.

If a testator appoint his debtor to be his executor, the appointment formally releases and destroys the debt, unless the executor renounces the trust; and he is safe against all but creditors of the estate, for the bequest of a debt to an executor is always considered as a specific bequest.

Should, however, this bequest be contradicted, as regards the legatees, by the express terms of the will, or by strong inference, as where the testator leaves a legacy, and directs it expressly to be paid out of the debt due to him by the executor. In like manner, also, if he leave the executor a legacy, it is evident that it is not to be cumulated by the debt also. So, where a testator bequeathed large legacies, as well as the residue of his estate, to his executors, one of whom was indebted to him to the amount of £3,000, under bond, it was held that the whole of the remainder, as it stood, should be equally divided between them; that is, he that was not indebted became a creditor, to a certain amount above him who had hitherto been a debtor to the estate.

An executor has a still further right, when he is not named as expressly an executor in trust, and there is no appointment of the residue of the estate, after all the debts and legacies are satisfied, he, in right of his office, becomes residuary legatee; but, if either, by inference, expression, or legacy, he is debarred from that advantage, he becomes tenant in trust for the next of kin, and among these he must divide the amount of the testator’s property.

LEGATEES’ REMEDY AGAINST THE EXECUTOR.

Though an executor hold no personal property in the estate of his testator, he is responsible for the right care and custody of the property under his charge, while for whatever mischief may arise from the misapplication and injury of it before distribution, without any fault of his wilfully committed, he can shelter himself under the estate. All costs, consequently, which are incurred in following the testator’s instruction, or in the right appropriation of the estate, are to be paid out of that estate. But for all wilful negligence, or improper conduct, he is answerable to the legatees, both at common law and in equity, and is liable to pay the cost out of his own estate.

Appended is the list of duties payable upon legacies, and the amount of which the executor is entitled to deduct before he pays the amount of each legacy.

+--------------------------------------------------------------------+
| |
| Rates of Duty, payable on Legacies, Annuities, Residues, &c., |
| of the Amount or Value of £20 and upwards, by Stat. 55 Geo. III. |
| cap. 184. |
| |
+=========================+========================+=================+
| The Description of the | Out of Personal Estate | Out of Real or |
| Legatee, Residuary | only, if the Deceased | Personal Estate, |
| Legatee, or next of | died any time _before_ | if the Deceased |
| Kin, _must be in the | or upon the 5th April, | died _after_ the |
| following Words of | 1805. | 5th April, 1805. |
| the Act_. | | |
+------------------------+------------------------+------------------+
| To Children of the } | | |
| Deceased, and their } | | £1. per Cent. |
| Descendants, or to } | | |
| the Father or Mother } | (no Legacy Duty) | £3. do. |
| or any Lineal } | | |
| Ancestor of the } | | |
| Deceased } | | |
| | | |
| To Brothers and } | | |
| Sisters of the } | £2. 10_s._ per Cent. | £5. do. |
| Deceased, and their } | | |
| Descendants } | | |
| | | |
| To Brothers and } | | |
| Sisters of the } | | £5. do. |
| Father or Mother of } | £4. -- do. | |
| the Deceased, and } | | |
| their Descendants } | | |
| | | |
| To Brothers and } | | |
| Sisters of a Grand- } | | |
| father or Grandmother} | £5. -- do. | £6. do. |
| of the Deceased, } | | |
| and their Descendants} | | |
| | | |
| To any Person in any } | | |
| other Degree of Col- } | | |
| lateral Consanguin- } | £8. -- do. | £10. do. |
| ity, or to Strangers } | | |
| in Blood to the } | | |
| Deceased } | | |
| |
| Where any Legatee _shall take Two_ or more distinct Legacies or |
| Benefits under any Will or Testamentary Instrument, which shall |
| together be of the Amount or Value of £20. each shall be charged |
| with Duty, although each or either may be separately under that |
| Amount or Value. |
| |
| --> OBSERVE.--_The Duty on Annuities is payable by four Annual |
| Instalments in the first four years from the commencement of the |
| Annuity, and a penalty will be incurred if each of the succeeding |
| Instalments of Duty be not paid in due time._ |
| |
| _Should the Annuitant die before the four years have expired, the |
| date of his or her death must be communicated in writing to the |
| _Comptroller of the Legacy Duties._ |
| |
| The Husband or Wife of the Deceased is not |
| chargeable with Duty. |
+====================================================================+
| |
| PENALTIES. |
| |
| The Receipt must be dated on the Day of signing, and the Duty paid |
| _within 21 Day after_, under a Penalty of £10 per Cent. on the |
| amount of the _Duty_; and if the Duty be not paid within _Three |
| Months_ from the Date of the Receipt, a Penalty will be incurred |
| of £10 per Cent. on the _amount or value of the Legacy_:--and the |
| Commissioners of Stamps cannot, _under any circumstances_, Stamp |
| a Receipt on which the Duty shall not be paid within the time |
| limited, unless the Penalty be also paid. |
| |
| NOTE.--Rents, Interests, or Dividends of Legacies, down to the |
| Date of the Receipt, must be added to the Legacy, and Duty |
| paid thereon. |
| |
+--------------------------------------------------------------------+

LONDON:
CLARKE, PRINTERS, SILVER STREET, FALCON SQUARE.