The Orphans Legacy, Part 3 · Chapter 23
CHAP. XXIII. Of Legacies Relating to Debts, with certain Caſes in the Law touching the ſame.
1. THings in Action, as Debts, are Deviſeable by Will; therefore if the Teſtator bequeath any Debt due to him on an Obligation, or a Contract, or the like, the Bequeſt is good; for Obligations, as alſo Counterpanes of Leaſes and the like may be Deviſed; only the Legatary cannot ſue upon the Obligation in his own Name, nor enter for the Condition broken upon the Leaſe, if there be cauſe; but he may cancel, give, ſell, or deliver up the Obligation to the Obligor, or ſurrender the Counterpane to the Leſſee. aPerk. Sect. 527.And it is an infallible Rule, That whatſoever may come to the Executor after the Teſtators death in reſpect of his Executorſhip, may be Deviſed by the laſt Will and Teſtament of the Teſtator. Therefore a Teſtator may bequeath a Debt due to him, and if he doth not make the Legatary his Executor as to that Debt, and he who is his Executor, ſhall refuſe to ſue the Debtor, that ſo the Legatary may receive it, in this caſe the Legatary may compel the Executor either to recover it himſelf, and ſo to pay it to the Legatary, or to give him power to ſue for and recover it himſelf in the Executor's Name; And this the Legatary may compel the Executor unto by conventing him before the Ordinary, and on pain of Eccleſiaſtical cenſures to make him a Letter of Atturney for recovery of the Debt to him bequeathed, in the Executor's Name, in caſe the Executor himſelf doth not ſue for it for the Legataries uſe, who cannot otherwiſe ſue the Debtor, becauſe he doth not repreſent the Teſtators perſon. But if it be ſuch a Caſe of Action as is altogether uncertain, as where a man hath an Action againſt another for taking away his Goods, or for ſome Treſpaſs done, the Teſtator in his life time, or to compel another to make an Accompt, or the like; ſuch Caſes of Action are not Deviſeable.
2. Now the Law takes notice but of four wayes, within the Circumference whereof all Legacies relating to Debts do fall; As (1) when the Creditor bequeaths to one what his Debtor owes him; Or (2) when he bequeaths it to the Debtor himſelf; Or (3) when the Debtor bequeaths to the Creditor; Or (4) when a third perſon bequeaths to a Creditor what his Debtor owes. Suppoſe therefore that a Creditor ſhould bequeath to one what A. B. owes him, without expreſſing either the thing or the quantity; in this caſe he ſeems to bequeath his right of Action, nothing elſe; So that the Teſtators Executor is no way obliged to ſuch Legatary further than to deliver him the Obligation or Bond, and yield his Name (if need be) to the Action. bl. ſi ſic. §. ſi mihi. ff. de Legat. 1.Yea, though the quantity were expreſſed by the Teſtator, yet the Executor is not bound to pay it to the Legatary, if the Teſtator joyn'd the very perſon of the Debtor himſelf with the execution or payment of the Legacy, as if he ſhould ſay [I would have A. B. receive the 10 l. of C. D. which he owes me] yet even in that caſe, if the 100 l. cannot be recovered without Law, it ſhall be at the Executors, not the Legataries coſt; and at the Legataries, not the Executors peril.cPapon. in tit. de legat. Tritic. verſ. Toutes fois, &c. & in Authen. Nunc ſi. C. de Litigioſ. & dict. L. ſi ſic. §. ult.
3. Every Bond or Obligation is both Active and Paſſive, but in divers reſpects; Active in reſpect of the Creditor, Paſſive in reſpect of the Debtor: Active, when the Creditor bequeaths to a third perſon what his Debtor doth owe him; Paſſive, when the Debtor bequeaths to his Creditor what himſelf owes to the other. Between which two the difference is great; for when the Creditor bequeaths, he bequeaths either to the Debtor himſelf, or to ſome other perſon; In both which caſes a Right is bequeathed, but with this difference, in the former a Bond or Obligation is bequeathed, in the latter a Diſcharge or Releaſe.
4. And when a Creditor bequeaths a Debt, it is not alway material to inſert any certain Sum of Money in the Legacy of that Debt, for ſuppoſe the Teſtator ſayes [I bequeath the 10 l. which A. B. owes me] be it to A. B. himſelf or any other; in that caſe a right rather than any certain Sum is underſtood to be given; becauſe if A. B. owed the Teſtator nothing, then nothing is bequeathed, and ſo the Legacy Fruitleſs.kl. ſi ſic. §. ſi mihi. §. quod ſi. ff. de Legat. 1.
5. But now on the other hand, when a Debtor bequeaths what he owes, and the Legacy be given to the Creditor himſelf; In that caſe it is very material to ſee whether any certain Sum be expreſs'd in the Legacy or not; for if there be, as when a Debtor-Teſtator ſaith [I bequeath to A. B. 10 l. which I owe him] In that caſe not ſo much a bare right only, as a certain Sum of Money ſeems to be bequeathed him; for which reaſon a Legacy of 10 l. will be good to A. B. albeit the Teſtator owed him nothing.il. legavi. in fin. ff. de Liberat. Legat. & l. 2. C. de falſ. cauſ.
6. But if there were no certain Sum expreſs'd by the Debtor-Teſtator, as if he had only ſaid [I bequeath to A. B. what I owe him] It is a Fruitleſs Legacy, if he owed him nothing. k§. Sed ſi uxori. Inſt. de Legat.In like manner, if a Teſtator ſaith [I give my Wife what I had with her in Marriage, or her Marriage Portion] if he had nothing with her in Marriage, the Legacy ſignifies nothing; yet if he had ſaid [I give my Wife 100 l. which I had with her in Marriage, or for her Marriage-Portion] though in truth he had nothing with her the Legacy ſhall be good, and is worth her 100 l. lInſtit. ibid.Or having had 100 l. with her, ſhall in his Will ſay [I give my Wife 200 l. which I had with her in Marriage] the Legacy is good for 200 l. yea though he ſhould therein refer himſelf to the Articles of Marriage, and add [as is contained in certain Covenants of Marriage made between us] The Reaſon is, becauſe the Law more conſiders the thing it ſelf when in terminis expreſs'd in a Legacy, than any falſe demonſtration thereof. ml. 3. c. de falſ. cauſ. & l. 1. in fin. C. de Dot. prelegat.Unleſs it can be ſufficiently proved, That the Teſtator meant otherwiſe than he ſpake, or that he err'd in ſuppoſing that to be true which was not ſo, In which caſe the Legacy avails nothing, albeit a certain Sum were in terminis expreſs'd by him.nl. 1. C. de falſ. cauſ.
7. For which Reaſon the Legacy is not good in ſuch caſe, unleſs he certainly knew he owed nothing to the Legatary; otherwiſe it is, if he ſuppoſed he did, when indeed he did not. oGraſs. §. legatum. q. 59.And the Reaſon why a Legacy given by a Creditor, is nothing worth though the Sum be expreſs'd, if nothing be due to him: And quite otherwiſe in the like caſe if the Legacy be given by a Debtor; the Reaſon I ſay of this Difference is, becauſe the Creditor is underſtood to bequeath only a Debt, Bond, or Obligation: but the Debtor doth bequeath a certain Sum by Name, or the very thing it ſelf expreſly.
8. A Teſtator in his laſt Will and Teſtament inter alia ſaith, [whereas I have in my cuſtody a certain Inſtrument of Writing, wherein A. B. ſtands bound in the Sum of 400 l. for the payment of 200 l. to C. D. I will that my Executor ſhall reſtore the ſaid Bond to C. D. or pay him 200 l.] After the Teſtators death the Bond cannot be found among any of his Writings, nor any knowledge thereof poſſibly had. In this caſe Judgment was given againſt the Executor, and he condemn'd in 200 l. to C. D. as a good Legacy to him by the ſaid Teſtator.pAnto. Faber. lib. 6. tit. 17. def. 17.
9. When a Debt is bequeathed, whereon nothing is due, the Bequeſt is Fruitleſs, if the Teſtator believed it to be a good Debt, albeit the Sum or quantity thereof were expreſs'd in the ſame; But if the Teſtator when he bequeathed ſuch Debt, knew there was nothing due upon it, the Legacy is good. qSurd. Deciſ. 142.And although he who bequeaths a Bond, bequeaths the Debt contain'd therein; rMant. lib. 9. tit. 1. nu. 9.yet he that bequeaths to his Debtor the Silver Cup or the like, which he had of his in pawn for 5 l. doth not thereby bequeath him that Debt of 5 l. sl. 1. ff. de Liberat, Legat.The Reaſon is, becauſe there is nothing but the Pawn or Pledge releaſed, the duty and perſonal obligation ſtill remains. Note, that he who bequeaths his Debts, is underſtood to bequeath his Credits, that is, the Moneys or what elſe is owing to him; for Debts, as was before obſerved, are taken both Actively and Paſſively; but in this ſenſe of a Creditors bequeathing them, they are only taken Actively.
10. If a Teſtator bequeath to A. B. whatever C. D. owe him, and C. D. at the ſame time wrongfully detain'd the poſſeſſion of certain Lands from the Teſtator; theſe Lands ſhall paſs by the Deviſe to A. B. as well as the Money which C. D. owed the Teſtator; as hath been adjudged; tTheſaur. Deciſ. 235.not at the Common, but Civil Law; for it is more than preſumed, that at the Common Law ſuch words, though in a Will not Nuncupative but Written, are no capable of being by any legal Intellect ſtrain'd to a Latitude of that extent; or whether he that bequeaths his Books of Accompt, or his Shop Books, ſhall thereby be underſtood to bequeath the Debts contained therein, uDe Praetis. lib. 4. int. 3. dub. 7. nu. 22. & Mant. lib. 9. tit. 1. nu. 9.as alſo the Moneys in the ſaid Books Calendaried by way of Accompt, and deſign'd for Trade, as is likewiſe evident by the Civil Law.wPap Notar. 1. tit. de Leg. verſ. African. & l. qui fillam. ff. de Legat. 3. & ibi Cujac.
11. Although the Bequeſt of a Debt is a good Legacy ſo long as it is a Debt, and the Bequeſt unrevoked, yet the Payment of a Debt to the Teſtator in his life-time extinguiſheth the Legacy thereof formerly Bequeathed by him; Not ſo, in caſe it were paid to his Executor ſoon after his Deceaſe. xl. ſi id quod. ff. de Liberat. Legat.And this holds true, albeit the Debt conſiſted in ſome certain ſpecifical thing, if it periſh'd in the Teſtators time; otherwiſe the Legacy is good. yBald. in l. qui poſt. Nu. 11. C. de Leg.Likewiſe, the Teſtators giving an Acquittance to the Debtor doth extinguiſh a bequeathed Debt. zl. non quocun que §. qui caium. ff. de Legat. 1.The Reaſon hereof is, becauſe by all theſe wayes the very ſubſtance it ſelf of the Debt, which was the thing bequeathed, is deſtroyed, al. fidei commiſſa. §. ſi rem ſuam. ff. de Legat. 3.yet here Note withall, That if a Teſtator doth demand a Debt, which he had bequeathed, not with any mind of abating the Bequeſt, but fearing the failure or future Inſolvency of the Debtor, and ſhall after keep this Money by it ſelf, with ſome ſignification therewith what Money it was; in ſuch caſe the Legacy is good, notwithſtanding ſuch payment precedent; which holds yet more ſtrong, in caſe the Teſtator demands it not, but the Debtor himſelf comes and offers it, and with ſuch earneſtneſs as the Creditor-Teſtator cannot well refuſe it. bMantic. de Conject. ult. vol. lib. 12. tit. 2. nu. 19.And if afterwards the Teſtator makes a Purchaſe with part or all of this money which he ſo demanded, not with any mind of abating the Legacy as aforeſaid, the Bequeſt remains ſtill good to the Legatary. cdict. l. fideicomiſſa & dict §. ſi rem ſuam. ff. de Legat. 3. & Bald. ubi ſupra. nu. 7. & Alex. Conſ. 157. n…. 7. in fin. vol. 7.So that if I bequeath thee a certain Debt, and afterward demand and receive that Debt, and it appear not to what end or with what intent I did this, the Legacy of that Debt ſeems to be extinguiſh'd, unleſs I depoſited the Money and ſet it aſide or apart for the deſign of the ſaid Bequeſt. dAl x. ibid. & Caſ. n diſt. §. ſi rem ſuam.And although whilſt the Teſtator lived, the Debtor were judicially condemn'd to him on the accompt of that Debt bequeathed, but not paid, the Legacy will hold. el. nepoti. in fin. ff. de fund. inſtruc. & Bald. in dict. l. qui poſt. nu 8. c. de Legat.Or in caſe the Teſtator having bequeathed Money owing to him, ſhall receive Goods in ſatisfaction of the ſaid Debt, or it be legally ſo adjudged to him, and ſhall preſerve ſuch Goods, the Legacy ſhall not be underſtood as void, unleſs the Teſtator doth after alienate the ſaid Goods.fBald. ibid. nu. 12. & Roman. Conſ. 229. nu. 3.
12. A. B. and C. D. are joyntly Indebted in 100 l. by Bond to E. F. who makes his laſt Will and Teſtament and therein bequeaths in this manner, viz. [what A. B. owes me I give to J. G. and what C. D. owes me I give to J. W.] In this caſe it is ſaid, that the Teſtators Executor is obliged to give the Action upon the Bond to one of the Legataries, and the value of that Action to the other. gl. non quocun que gloſs. in §. fundus mihi. ff. de Legat. 1.Which ſeems not over-conſonant to Reaſon, for they both owed him but one 100 l. yet the Executor after this rate muſt pay the Legataries 200 l. Beſides, in the ſame Lawit is acknowledged, that if the Teſtator after his Teſtament made, ſhall Releaſe one of the ſaid Debtors, the Legacy is void as to both the Legataries, becauſe the Releaſe of one Joynt-Debtor is the Diſcharge of all the reſt. hgloſs. ibid.Which plainly Implyes there is but one Debt in the Caſe; and if that be bequeathed twice, it can be due but once; the ballance therefore ſeems more equilibrous, if the 100 l. were equally divided between the two Legataries.
13. A. B. makes his laſt Will and Teſtament, and therein appoints his Executor to give C. D. 100 l. provided that C. D. Surrender into his Executors hands a certain Bond or Obligation than in the cuſtody of the ſaid C. D. wherein A. B. the Teſtator ſtood bound to him the ſaid C. D. in 40 l. and dyes. C. D. likewiſe dyes before the ſaid Bond or Obligation is ſurrendred. The Queſtion is whether the Executor of C. D. can claim the ſaid Legacy of 100 l. It is reſolved, That if the ſaid Bond or Obligation were in being, and in the poſſeſſion of the ſaid C. D. at that time when the Teſtator made his Teſtament, and that C. D. knew of the Contents thereof, his Executor ſhall not have the Legacy of 100 l. becauſe C. D. performed not the Condition of ſurrendring the ſaid Bond or Obligation to the Teſtators Executor) and therefore could not tranſmit the claim of the Legacy to his Executor: But if it was not at that time in being, or not in the power of C. D. or that he were ignorant of the ſaid Deviſe conditionally bequeathed, there ſeems an impoſſibility impoſed on the Condition of the Legacy to C. D. which makes the Condition void, and conſequently the Legacy pure and abſolute to C. D. whereby it becomes Tranſmiſſable to his Executor. igloſs. in l. ab omnibus ff. de Legat. 1.The Reaſon in Law is, becauſe a Legataries death before the Exiſtence of a poſſible Condition doth extinguiſh the Legacy; otherwiſe, where the Condition is impoſſible.kBart. in dict. L. §. in Teſtamento.
14. A. B. was obliged to C. D. in 10 l. Abſolutely, in 20 l. Conditionally, and in 40 l. at a day yet to come. C. D. in his laſt Will and Teſtament ſaith, [That whatever A. B. ought to pay me, I give and bequeath to J. G.] and dyes. In this caſe the 40 l. whoſe day of payment was not then come, is not compriſed within that Legacy to J. G. Becauſe of that word [ought] otherwiſe, if he had ſaid, I give to J. G. what A. B. ought to pay me now or hereafter.ll. ſi ſcripſiſſet. & gloſs. ib. ff. de Legat. 2.
15. A. B. makes his Son and Daughter his Executors, and doth Deviſe certain Tenements, Bonds, and Obligations to each of them. After in his Will ſaith [That he would have his Son pay all his Debts and Legacies, that ſo his Daughter may enjoy her Legacy entire to her ſelf, and undiminiſh'd] The Queſtion is, whether the Son ought to pay all his Debts and Legacies? So as that the Daughter may have her full and entire part and portion? It is reſolved in the Affirmative. ml. nomen debitoris. gloſ. in §. uni ex haeredibus. ff. de Legat. 3.Yet underſtand it only as to her entire part and portion of her Legacy, not as to what ſhe might otherwiſe claim as an Executrix.
16. A Teſtator in his Will appointed, That his Executor ſhould lend A. B. 100 l. for three years at two per cent Intereſt. Q. Whether A. B. is obliged to give ſecurity by Bond with ſufficient Sureties for repayment of the Principal with the ſaid Intereſt at the three years end? Some are of opinion that he ought; but the Law is otherwiſe, and his own Bond is ſufficient.nl. fidei commiſſa. §. ſi haeres. & gloſ. ibid, ff. de Leg. 3. & l. omnibus. ff. de Judic.
17. If a Bond or Debt by ſpecialty be bequeathed to any one, the Executor is diſcharged if he Aſſign the Debt or Action to the Legatary, albeit the Debtor be Inſolvant; as thus, A. B. makes his Will, and C. D. his Executor; in which Will he ſaith, I give to my Coſin J. G. the Bond or Obligation wherein J. S. ſtands bound to me in 100 l. After he adds a Codicill, and therein forbids the exacting the 100 l. of or from J. S. and moreover doth in the ſame Codicill require of his Executor C. D. That out of the Debt which N. O. doth owe him he ſhould pay the 100 l. to his Coſin J. G. and dyes. N. O. mentioned in the Codicill is found Inſolvant. The Queſtion is, whether his Executor C. D. be obliged to pay the full 100 l. to J. G. It is held in the Negative, and that the Executor is Diſcharged from J. G. if he yield him the Action againſt N. O. though Inſolvant.ogloſs. in §. Civibus. l. Lucius. ff. de Legat. 2.
18. A. B. owes the Teſtator 10 l. or a Horſe, the Teſtator doth bequeath the 10 l. to C. D. After the Debtor A. B. doth deliver to the Teſtators Executor a Horſe, and is thereby diſcharged of the 10 l. becauſe the Election was in him, and the Legacy of 10 l. to C. D. is void. But ſuppoſe the Teſtator had bequeathed the 10 l. to one, the Horſe to another, and A. B. the Debtor having the Election in him, paid the 10 l. to the Teſtators Executor; the Legacy of the 10 l. in that caſe is good, and the Legacy of the Horſe is void. Et vice verſa. pGloſs. in l. ut haeredib. ff. de Legat. 2.Or ſuppoſe that A. B. did owe the Teſtator 100 l. who ſaith in his Will [That how much Money my Executor ſhall recover from A. B. ſo much I give to C. D.] In this caſe, the Legatary may compell the Executor to recover the whole 100 l. for him from A. B. for this is no Conditional Legacy; becauſe, if ſo, then the Legatary could not ſue the Executor, unleſs he had recovered the Money from A. B.qGloſs. ibid.
19. Debts by Bonds or Specialties are not compriſed in a general Legacy; as ſuppoſe the Teſtator doth Deviſe to his Brother the one half of his Goods and Chattels (except the Houſe wherein he lives, left him by his Father, with all the things therein) and make him his Executor of half of his Eſtate; and then Deviſed to his two Uncles the other half, and makes them his Executors of that Half. The Queſtion is, whether all the things in the ſaid excepted Houſe to belong to his ſaid two Uncles, or to his Brother. In this caſe we muſt diſtinguiſh between the things which were in the ſaid Excepted Houſe; for if there were any Debts by Bonds, Specialty, or the like, they are not compriſed within the Exception made as aforeſaid, but do belong both to the Brother, not as a Legatary, but as Executor of a Moiety, and to the two Uncles as Executors of the other Moiety; but if they are Silver, Houſhold-goods, and other things in the ſaid excepted Houſe, they belong to the two Uncles as Executors of a Moiety, not to the Brother, who is bar'd by the ſaid l) Gaius Scius. & gloſs. ibid. ff. de Legat. 2.Exception. (r)