Page:The American Cyclopædia (1879) Volume X.djvu/322

 316 LEGACY will. In Rome the general law determined uniformly who should succeed to the political, social, and personal rights of one who had died ; but a member of the populus might get a special law passed by the comitia curiata authorizing an alteration of the usual rules for the distribution of property. A testament was, therefore, nothing else than a private law, and hence legare, from lex, came to be used as the appropriate word for making testa- mentary dispositions. The peculiar feature of the testament was the institution of an heir, that is, of a person who was to succeed to the persona of the testator. A legacy was an in- junction to this heir to give or pay over to a third person a part of the inheritance. The word was never applied, as in the English law, to a direct bequest ; and if there was no heir, the legacy necessarily failed. In our law, a legacy is a gift or bequest of goods or chattels by testament. As no testamentary disposition of such property can be administered without the interposition of a representative of the de- ceased, the court, if no executor was appointed by the will, or if he who was appointed de- clines to accept the trust, will itself assume the nomination of an administrator. In him all the personal property is vested, and it is his office to estimate the assets and pay the debts of the deceased, and to divide the surplus, if any, according to his will, or according to the general statutes of distribution. A legatee ac- quires indeed, under the testament itself, an inchoate right to the legacy ; but this is per- fected only by the assent of the executor, or other representative of the testator. Legacies are said in law to be general, specific, or de- monstrative. The two former of these must be nicely distinguished from each other, be- cause, as we shall see further on, the one class is subject to abatement, and the other to ademp- tion. A legacy is general when it does not be- queath a particular thing or part of the testa- tor's personal estate by distinguishing it from all others of the same kind ; thus, the gift of a horse or of a diamond ring, without indica- ting any particular horse or ring, is a general legacy. So bequests of money for a ring or to purchase government securities, or of an an- nuity to be purchased out of or charged to the personal estate, or of so much money to be paid in cash, have been construed to be gene- ral legacies. A legacy is specific when it refers by particular description to a certain chattel, and shows an intention that the legatee shall have the very thing, and not merely an equiv- alent value. For example, the gift of "my East India bonds," of "a sum of money now in the hands of A," or of "the money due on B's note," is a specific legacy. Demonstrative legacies partake in some respects of the quali- ties of both those just mentioned, and may be defined to be those which in their nature are general, but are to be satisfied, according to the will, out of a particular fund ; thus, " 1,000 dollars out of my bank stock." This kind of legacy possesses the better qualities of both the others. It is so far general that it is not adeemed by mere change in the fund out of which it is to be satisfied, and so far specific that it does not abate with general legacies for the payment of debts. A specific legacy may be adeemed ; that is, if the subject of it be not in existence at the time of the testator's death, then the bequest entirely fails. Thus, if a debt specifically bequeathed be received or dis- charged by the testator, it will be adeemed, for there remains nothing for the will to operate upon. But a specific gift is not adeemed by the testator's pledge of the subject of it, and the legatee will be entitled to have it redeemed by the executor, and, if the latter fails to do so, to receive compensation out of the general assets. A demonstrative legacy is not adeemed by a failure of the particular fund upon which it was charged. The value is the principal thing ; the particular fund designated is only accessory and of secondary importance, and if it no longer exist, the bequest must be satisfied out of the general assets. A legacy lapses if the legatee die before the testator, or, if after his death, yet before the contingency happened upon which the legacy was to vest. The gen- eral and well established rule of the common law is, that unless the legatee survive the tes- tator, the legacy is extinguished. Statutes in many of our states have changed this rule, and extend the benefit of legacies to the lineal de- scendants or other heirs of legatees. The con- sequences of lapse may always be avoided by special provisions in the will. As to lapse by death of the legatee after the testator, it may be laid down as a general rule, that when a legacy is given without specifying any time for its payment, it is due on the death of the tes- tator, although not payable until after one year. This year being intended only for the convenience and safety of the executor, it is not permitted to prevent the vesting of the legacy ; and if the legatee die within the year, the bequest goes to his representatives. But if the testator have made any conditions of future payment, the courts examine into hia intentions in order to determine whether the interest in the legacy be vested or contingent. In this respect, and concerning familiar cases, two very well settled rules are found in prac- tice. First, if a legacy be " payable " or " to be paid" at any certain time, as "when the legatee arrives at the age of 21," it confers a vested interest immediately on the testator's death, and is transmissible to personal repre- sentatives. Secondly, if a gift of property be to the legatee " at 21 " (and not merely payable at that age), or when, or if, any determinate thing shall happen, then the time becomes an essential element, and the legacy is contingent; if then the legatee die before the precedent condition be performed, the legacy lapses and fails entirely. With respect to the vesting of legacies charged upon real estate, the general rule seems to be that when the gift is iinmedi-