The Orphans Legacy, Part 3 · Chapter 25

The Orphans Legacy · Part 3 · Chapter 25

p. 332CHAP. XXV. When and How Legacies are Null, or become void or voidable; with Certain Caſes in the Law touching Revocations.

1. THe Reaſon why Legacies and Bequeſts do ſo often prove Ineffectual, is not ſo much becauſe they were originally Null, or became afterwards void or voidable by any thing relating either to the State or Perſon of either the Teſtator or the Legatary, or by reaſon of ſome accident happening to the thing it ſelf bequeathed: But becauſe the juſt, honeſt, and ſelf-denying Executor hath fully Adminiſtred (as the Common Plea is) and hath not Aſſets wherewith to ſatisfie the ſame. When the Legacy is originally void, it is underſtood as Null; when void by ſome ſubſequent Act relating to the State or Perſon of the Teſtator, then it is underſtood as Revoked; when by ſomething relating p. 333to the Legatary, then as forfeited; and when by ſome fatal accident happening to the thing it ſelf bequeathed, then it is underſtood as Loſt.

2. Now a Legacy or Bequeſt may be ſaid to be Originally Null, when the Teſtator is a perſon Incapable of Deviſing at all, at leaſt of Deviſing the thing Deviſed; or when the Thing it ſelf Deviſed is not legally Deviſable, or when the Teſtators manner of Bequeathing or Deviſing is altogether illegal; or when the Legatary or Deviſee is ſuch a perſon as is not legally qualified to take by a Deviſe. Likewiſe, the Legacy or Bequeſt is void or voidable by ſomething relating to the Teſtator, when there is juſt fear in the caſe, or circumventing fraud, or immoderate flattery; It may be alſo by ſome kinds of error or uncertainty. Alſo by a ſubſequent or latter Will, or by Revocation, Cancellation, Ademption, Tranſlation; as alſo for want of Aſſets. And when the Legacy or Bequeſt is void or voidable by ſomething relating to the Legatary, It is commonly either by reaſon of ſome Incapacity in his perſon to take by a Legacy or Deviſe, or by reaſon of ſome injury done the Teſtator by him and high enmity betwixt them; or by endeavouring to conceal, ſophiſticate, or ſuppreſs the Will, or to obtrude and ſet up another in ſtead thereof, charging it with falſity; or by refuſing to do ſome poſſible and reaſonable thing incumbent by way of charge on the Legacy; or by an unwarrantable aſſuming to himſelf by his own Authority, and uſurping on the Legacy without the Executors Licenſe, conſent, or delivery thereof; or by a totall failure of ſome Condition annexed to the Legacy; or by the Legataries own waver and voluntary refuſal thereof; or laſtly by the Legataries death before the Teſtators, or before the condition performed, or before it otherwiſe becomes due. Finally, the Legacy or Bequeſt becomes void in reſpect of the thing it ſelf bequeathed, when by ſome providential and fatal accident without any neglect or default in the Executor, the thing bequeathed doth either totally periſh, or is decay'd as that it becomes uſeleſs and unprofitable.

3. Such as are Inteſtable, are thence legally diſqualified to diſpoſe of any thing by way of Legacy or Deviſe; and who they are, appears elſewhere. aavid. par. 1; cap. 7.Teſtaments made and Legacies given by ſuch, are void originally, and ſuch as are originally void by reaſon of any defect in the Teſtator, that defect ceaſing ſhall not be priviledged with any ſubſequent Ratification. bbl. ſi filius familias. ff qui teſt. fac. poſs.A Teſtamento ad Legatum valet Argumentum. An Original defect in the Teſtator will make the Teſtament and all the Contents thereof defective alſo.ccl. ſi quaetamus. ff. de Teſta.

p. 3344. If the Manner of the diſpoſition of a Bequeſt or Deviſe be illegal, it renders the Bequeſt originally Null; as when the Teſtator wholly refers his Will therein to the pleaſure of his Executor or any other perſon, as if the Teſtator ſhould ſay, [I make ſuch my Executors as my Son ſhall think fit] Or [I give 10 l. to whomſoever my Executor ſhall pleaſe] ddl. illa Inſtitutio. ff. de haered. Juſt. ultima voluntas non debet exalieno arbitrio pendere. Bart. Rubr. in dict. l.There are ſeveral other wayes whereby the manner of the diſpoſition may be illegal, and poſſibly the more in regard of that vaſt extent and latitude of words, which the Law allows Teſtators in making Wills, and bequeaching Legacies; No words, or language, or ſigns almoſt but may ſerve for a Bequeſt, provided they be but ſenſible and intelligible. eel. 2. in prin. Commun. Leg. & l. legatis. C. de Legat. & l. fidei commiſſa. in prin ff. de Leg. & Alex. Conſ. 100. nu. 7. vol. 4.Inſomuch that though the Teſtator ſhould quite hold his peace, and but Nod thee a Legacy, whether he can ſpeak or not, or whether interrogated thereunto or not, the Legacy is good. ffl. natu. ff. de Legat. 3 & l & in Epiſtola. ſt. de fidei commiſ…. & Mant. de Coniect. vul. vol. lib. 8. tit. 1. nu. 19.Underſtand not this of the Teſtators nodding between ſleep and wake, between ſenſe and no ſenſe, but when by his Nod he makes an intelligible ſign of his mind and intention; the reaſon hereof is, becauſe the Law more favours a Teſtators Will than his words.gg§. noſtra. Inſt de Legat.

5. If the thing bequeathed be not legally Deviſable, it is a void Bequeſt. hhubi ſupra. cap. 6.Or if the thing Deviſed or Bequeathed ceaſes to be the Teſtators, either by any voluntary act of his own, or thereunto compelled by ſome urgent neceſſity, the Legacy is extinguiſhed. iiJaſon. in §. Sed ſi ſeperavit. l. caetera. ff. de Legat. 1. nu. 4. 13 & 14.Likewiſe, if by the Teſtator the thing bequeathed be in its very ſubſtance and body ſo changed into another form, that it is not reduceable to its priſtine ſubſtance, In ſuch caſe it will be preſumed that the Teſtator hath alſo altered his mind, and the Legacy is void; otherwiſe in caſe it may again be reduced to its former ſhape and fathion; kkBart. in l. Servun; filii. § ſi pocula …. 1. ff. de Leg. 1. & C. qua ſitum. §. ll…d. ff. d Legat. 3.for by the diſſolution and change of the thing bequeathed into another form, and by the Teſtator himſelf, the Law preſumes his mind and intent to be chang'd alſo.lll. Seia. §. abhaerede. ff. de aut. & arg leg.

6. Although the thing bequeathed be Deviſable, yet if the Legatary be incapable and legally diſqualified to take by a Deviſe, the Legacy is as void in effect as if it had never been bequeathed; Now as one contrary is illuſtrated by another, ſo by obſerving who are the perſons qualified to be Teſtable, you may infer who are the illegatable; and as all are. Teſtable who are not by Law ſpecially prohibited, ſo are may take by a Deviſe whom the Law hath made no ſpecial proviſion againſt.

7. Every Legacy given by a Teſtator, circumvented by Fraud to Bequeath the ſame, is void; mml. non enim. ff. de. in offic. Teſt. & l. 1 ff. de excep. dol.This is not to be extended to that kind of Fraud, which is known and underſtood by the Notion of Dolus Bonus. nnBald. in l. ſi quis aliq. teſt. probib. C. & ſi chard. in Rub. ibid.And albeit Fraud ſpecially in the Teſtator himſelf in reference to his Will be not to be preſumed, p. 335ool. ex hoc aedicto §. alietare. ff. de alien. indic. mut. cauſ. fact.yet the Circumſtances may be ſuch as will render the ſuſpition thereof very Conjectural, which with ſome Adminicular proof may ſerve to invallid the Legacy, ſpecially if Natural Affection, Piety, or Charity fall not under conſideration in the Caſe.

8. Likewiſe, if the Legacy were, as it were extorted from the Teſtator, or being under a Fear did give the ſame, it is void. ppBart. in l. fin. ff. ſi quis aliq. teſt. prohib.Here (as in ſeveral other Caſes, purpoſely omitted to wave prolixity) the Law makes many Ampliations and Reſtrictions. If there were at the time of bequeathing a fear upon the Teſtator, it could not be (as it ought) Libera voluntas. Yet underſtand, it muſt not be every fear, or a vain fear, but a juſt fear, that is, ſuch as indeed without it he had not made his Teſtament at all, at leaſt not in that manner, nor given ſuch and ſuch Legacies. A vain fear is not enough to make either Teſtament or Legacy void; qql. ſi quis ab alio. ff. de re judicat.But it muſt be ſuch a fear as the Law intends, when it expreſſes it by a fear that may Cadere in conſtantem virum, rrC. ad audientiam. & C. cum Dilectus. De iis quae met. cauſ. fiunt.That is, ſuch a fear as may produce ſuch terrour as to cauſe a well reſolved perſon, ſpecially in his ſickneſs and weakneſs to do what otherwiſe he would not. Now a leſs fear will ſerve to terrifie a Woman in this caſe, and ſo the Law underſtands it. ssGloſs. in c. cum locum. De ſponſalibus.But each of theſe muſt be well proved, otherwiſe they do no prejudice either to the Teſtament, or any thing therein bequeathed.ttl. ex hoc aedicto. §. alienare. ff. de aliena. judic. mutan. cauſ. fiunt.

9. Inordinate, Importunate and Immoderate Flattery deſtroys alſo the diſpoſition of a Legacy given to the Flatterer or any other by his Cychophantick Sollicitations and procurement; ſpecially if fear preceeded ſuch Flattery; uuPeck. de Teſt. Conjug. l. 1. c 9 nu. 23. & Jas. Sichard. Menoch. & alii.and Fraud accompanyed it; wwSichard. in l. ult. C. ſi quis teſt. prohib. nu. 13.Or in caſe the Teſtators underſtanding be but little, and the Legacy great; xxMolin. in Apoſtill. ad. Dec. Conſ. 489.Or more eſpecially if ſuch immoderate Flattery proceed from ſuch as have the chief care of the Teſtator in his Sckneſs, as his Wife, Phyſician, or the like; yyMolin. ibid. Peck. ibid. nu. 6 & in cap. 17.Or in caſe there were a precedent Teſtament made by the Teſtator; zzSocin. Jun. Concil. 14. Vol. 2.Or when the flattering words are ſpoken to a perſon much in Debt. aal. generali. & ibi Bart. ff. de uſufract. leg.In all theſe Caſes ſpecially it is, wherein Immoderie Flattery, circumſtantiated as aforeſaid, ſhall invallid a Teſtament as well as the diſpoſition of a Deviſe or Legacy.

10. Touching Error in the Teſtator in reference to the Legacy or Deviſe, it muſt be conſidered whether it be an Error of the Name, Perſon, or Quality of the Legatary; Or whether an Error of the Quantity, Quality, Subſtance, Proper Name, or Name Appellative of the thing bequeathed. If it be an Error only in the Proper Name of the thing Deviſed, it doth not hurt the Legacy, ſo as the ſubſtance thereof be not alſo miſtaken; as when a Teſtator Intending to Deviſe Long-acre, Deviſeth it by p. 336the Name of Black-acre, erring not in the Subſtance, but only in the Proper Name of the thing Deviſed; In this Caſe the Deviſee ſhall have Long-acre. Otherwiſe it is, if it be an error in the Name Appellative: As intending to Bequeath a Horſe, he Deviſeth a Houſe. The Reaſon of this difference is, Becauſe the Names Appellative of things are Innumerable, being ever ſo called, and of natural Conſtitution, as Houſe, Horſe, and the like; and therefore an error therein is as injurious to Legacies, as an error in the very Body or Subſtance of the thing it ſelf Deviſed. But the Proper Names of things being only ſuch as are meerly Accidental, and given or impoſed by them, are Mutable and may be changed by Men, ſuch as Long-acre, Black-acre, and the like; therefore an error therein only doth not prejudice the Legacy. bbl. ſi quis in fundi ff. de Leg. 1. &. Gloſs ibid.But if the error be in the Name Appellative; the Teſtator ſaying, I Bequeath a Horſe when he intends an Oxe, the Legacy is not good; No, not of the Oxe, albeit his intention thereof were evident. ccgloſs. ibid. verb. vocab.The Law is the ſame in Caſe the error be in the Subſtance of the thing Deviſed; as if the Teſtator intending to bequeath 5 l. doth bequeath his White Mare. ddl. quo…iens. ff. de haered. Inſit.Such an error is as deſtructive to a Legacy, as an error in the Name Appellative thereof, eegloſs. in dict. l.or as an error in the Perſon of the Legatary, which is as prejudicial to a Legacy as either of the other; whence it is ſuppoſed by ſome, that Jacob was not de jure his Father Iſaack's Heir but Eſau, becauſe by an error he miſtook Jacob for his Son Eſau, thereby erring in the very Perſon of the Legatary, and in the very Body and Subſtance of the Perſon he meant and intended; the beſt Salve in Law (not wading into the Myſtery of Divine Preordination) for this is, That Iſaa…k did not altogether erre or miſtake in this matter; but doubted only, in that he ſaid, The Voice is Jacobs Voice, but the Hands are the Hands of Eſau; whence it may well be inferr'd, that Jacob, and not Eſau, was de jure his Heir; for though Error in the Perſon of the Legatary, or in the Body or Subſtance of the thing Bequeathed doth viciate the Legacy, yet a bare Dubitation or Haeſitation doth not. ffgloſs. min. in dict. l. quotiens.And as touching an error only in the Quantity of the thing Bequeathed, ſuch error doth not prejudice the Legacy, at leaſt not ſo as to invalidate the ſame; for if the Teſtator intending to Bequeath 20 l. doth either ſpeak or write but 10 l. the Legacy is good for 20 l. or intending to give only 10 l. ſays 20 l. it is good only for 10 l. gggloſs. mag. ibid.Or if 200 l. be written inſtead of 100 l. it is good only for 100 l. that is not according to the ſcription, but according to the Teſtators intention. bbibid.And as thus it is Quantities Numerical, ſo alſo it holds in Quantities known and diſtinguiſhed from the other by being Quotative, or indeed more properly Quantitative; as if a Teſtator intending p. 337to Deviſe all his Manſion-houſe, doth expreſs himſelf only by the one Moity or third part thereof. iiJaſon in l. qui quartam. ff. de Leg. 1. ubi valet Legatum, Licet Error in quantitate five continua five diſcreta.Likewiſe Error only in the Quality of the thing Bequeathed, doth no more vacate a Legacy, than doth Error in the Quantity, provided the Subſtance of the thing be not alſo miſtaken: kkAngel. in dict. l. ſi quis in ſundi. ff. de Legat. 1.But an Error in the Quality of the Legatary, where ſuch Quality was the Final Cauſe of the Legacy, that is, ſuch as without which the Teſtator would not have given the Legacy, llMantic. de Conject. ult. Vol. lib. 4. tit. 5. nu. 16.doth viciate the ſame; becauſe the Law preſumes the Teſtators intention to ceaſe at the ceaſing of the Final Cauſe thereof; otherwiſe if the Quality be only ſuch, as were meerly a Demonſtrative or Moving Cauſe; mml. falſa. demonſtratio. in prin. ff. de Cond. & Dem.yea or an Impulſive Cauſe, if it be not by way of Condition joyned with the Legacy.nnSichard. in Rub. de haered. inſt. nu. 3. C.

11. Ʋncertainty is another Impediment to the validity of a Legacy, and will make it void, ooGraſs. Theſ. Com. Opin. §. Legat. q. 64.unleſs by a ſufficient proof you can reduce the Teſtators meaning to a Certainty; ſo that if the Teſtator bequeath a Legacy to ſuch a one (not naming any body) as ſhall do ſuch a thing; (naming the thing) this Deviſe is good to him whoſoever ſhall firſt perform the Condition before or after the Teſtators death. If this Ʋncertainty refer to the perſon of the Legetary, the Legacy is void; ppBart. in l. quidam ff. de reb. Dubijs.unleſs he who at firſt was uncertain doth afterwards by ſome future Event become certain: qqdict. l. quidam. & ibi Bart.As if the Teſtator ſhould ſay; I give 100 l. to whomſoever ſhall make my Son fit for the Univerſity. If it refer to the thing Bequeathed, and proceed of Error, it's viſible by the Premiſes in what Caſes void or not; if it proceed of too much Generality of the words of the Bequeſt, the Executor is diſcharged if he give any thing to the Legatary; if it proceed of words too General relating to any Specifical thing Bequeathed, limited not ſo much by Nature as by Man, as Houſe, Ship, or the like, the Legacy is void. rrZaſ. lib. 1. ſing. reſponſ. in prin. nu. 33. Alex. & Angel. in l. ſi Domus ff. de Legat. 1.If it refer to Number, Weight, or Meaſure, the Bequeſt is unprofitable, becauſe never ſo little is enough in that Caſe, ssl. nummis. ff. de Leg. 3.unleſs Bequeathed to ſome certain uſe, by which means it may be Regulated, and ſo reduced to a kind of Certainty. If it refer to the Date of the Teſtament wherein the Legacy was given, when there are Two ſuch Wills in Diſpute, neither is good, ttgloſs. in L. ult. C. de edit. Di. Adria. tol.unleſs one of them be in favour of the Teſtators Children, or to Pious Ʋſes; in both which Caſes the Preſumption of Law affirms that Will (where Two are in Being) which makes for either of them. uuBart. in. l. 1. § 1. ff. bon. poſſ. ſecund. Tabul. & Sichard in l. ult. C. de Edicto. D. Adr. toll. & Mant. de Conject. ult. Vol. lib. 2. tit 15. nu. 17.But if both the Wills of the ſame Date relate the one to one of them, the other to the other; in that Caſe the Teſtament which reſpects the Teſtators Children ſhall be preferr'd; p. 338wwIbid Mant. lib. 6. tit. 3. nu. 43.and yet this Uncertainty doth not alway invalidate a Legacy to Pious Ʋſes, where there is no other Will of the ſame Date in the Caſe; for if the Teſtator Wills, That his Goods ſhall be Diſtributed [without other words] the Law ſupplies the ſenſe, and interprets his meaning, to have it Diſtributed among the Poor. xxIn C. cum tibi. & ibi D D. omnes de Teſtam. & Bald. in Executor. nu. 8. ff. de Execut. rei judic. Idem. in Conf. 296. nu. 1. Vol. 5.It is preſumed, the Law means where the Teſtator dies without Iſſue. This Uncertainty doth ſeldomariſe from any dubious Expreſſions uſed by the Teſtator relating to the perſon of the Executor or Legatary, in both which Caſes both Will and Legacies are void reſpectively; yyl. in tempus. §. 1. eodem que ult. ff. de haered. inſt. & §. incertis. inſt. de Legib.But it may often happen where the Teſtator hath more Friends than one of the ſame Name, of equal Degree to him, and Reſpect with him, as in Brothers or Siſters Children, unleſs he add ſome Diſtinction, or other Circumſtances make it Evident whom he meant or intended; or unleſs it may (as was before hinted) be Reduced to a Certainty by ſome future Event.zzl. quidam relegatus. ff. de reb. dub.

12. Again, a Legacy or Deviſe may be void by the Teſtators making a latter Will, and not inſerting the ſame therein. Likewiſe the Teſtators voluntary Alienation of the thing Bequeathed is an actual Revocation thereof. aal. rem legatam. l. ſi ſervum. ff. de adim. Legat. 2.The Reaſons are, becauſe the Law thence preſumes the Teſtator would not have his Executor burthened with the Redemption thereof. bbl. unum ex familia. §. ſi rem tuam. ff. de Legat. 2.As alſo becauſe a Revocation in the Law hath as much force to Revoke, as a Diſpoſition hath to Diſpoſe. ccl. ſi ita ſcriptum §. Regula. ff. de Lib. & Poſtth. & Bald in l. ult. nu 9 de Inſtit. & Subſt.Et Contrariorum eadem eſt Ratio. The like effect to make void a Legacy hath Cancellation, or when the Teſtator himſelf, or by his order, doth totally Cancel the Legacy; yet if a Legacy given to Pious Uſes be found Cancelled, and it appear not whether the Teſtator or any other by his direction did it, the Law will preſume it to be done not wittingly and willingly, but inconſulto and unadviſedly.ddBart. in l. proximae. in ſin. ff. de his quae teſt. delen.

13. A Legacy or Deviſe may alſo be made void by Ademption, which is a taking away of the Legacy by the Teſtator expreſly in Fact, or in Conſtruction of Law. And this Ademption may be by the meer naked Will and Pleaſure of the Teſtator, without any Reaſon ſolemnly given by him for ſo doing. eel. ſi jure. ff. de Leg. 3 & l. 3. §. ult. ff. de adim. Leg.And in a Codicil he may make an Ademption of that Legacy which he had before Bequeathed in a Will; As thus, viz.

14. A. B. of London being bound for York, makes his laſt Will and Teſtament before he begins his Journey, wherein he appoints C. D. and E. F. to be his Executors. And commanded, That in Caſe he ſhould happen to die at York, they ſhould give I. G. of that City 100 l. to bring his Body to London; and if any Money of that 100 l. were left over and above the Charges of ſuch his Funerall, I. G. ſhould have it. The ſame day A. B. makes a Codicil, p. 339and therein deſires his Executors, That in Caſe he dyed at York or on the Road, they ſhould cauſe his Body to be brought back to London, and there Buryed by his Wife and Children. After the Teſtator dies either at York or on the Road. The Executors cauſe his Corps to be brought to London, and there Buryed as he appointed in the ſaid Codicil. The Funeral coſt 60 l. I. G. demands the remaining 40 l. the Law will not give it him, becauſe in the Codicil there is an Ademption of the Legacy expreſs'd in the Will, and a Tranſlation thereof to the Executors implyed in the Codicil.ff§. qui filiu: l. alumnae. ff. eod.

15. In Caſes doubtful the Preſumption ſhall not be for an Ademption; ggl. 3. §. ſi duobus. ff. de adim. legat. & Bald. in l. ſi plutib. nu. …: ff. de Legat. 1.therefore where other Conjectures may be had, ſuch Preſumption ſhall ceaſe: For which Reaſon, if the Teſtator gives his Houſe to one, and after in the ſame Will give the ſame Houſe to another; it ſhall not be Conſtrued, as if he would take the Houſe from the firſt, but rather that he would have them both Collegataries, unleſs there be very pregnant proof of the Teſtators intention to the contrary. hhgloſs. in l. ult. in fin. ff. de his quae poenae nomin. & Bald. in l. Cohaeredi. §. Coheres in fin. ff. de vulg. & Pup. Subſt.Otherwiſe if a Teſtator doth Deviſe a Houſe to A. B. and after give the ſame Houſe by Deed of Gift to C. D. in this Caſe the Deviſe to A. B. is Extinct. Or if after he Buys the ſame Houſe of C. D. and dies, and A. B. demand the Houſe, he cannot Recover it, unleſs he can prove that the Teſtator by a new Declaration of his Will intended he ſhould have it. iigloſs. in l. cum ſervus ff. de adim. Leg.Likewiſe if a Deviſed Houſe be pull'd down, and another built by the Teſtator in the ſame place, the Deviſe is void, unleſs it can be proved that the Teſtator intended otherwiſe.kkl. ſi ita Leg. ff. de Legat. 1.

16. The effect of an Ademption may alſo happen in defect of performance of ſome Condition charg'd on the Legatary; but a Condition depending meerly upon the Teſtator himſelf works no Ademption, in Caſe it be never performed. The Reaſons in Law are, Becauſe ſuch a Condition, if deficient, ſhall be underſtood, as if the Diſpoſition were pure and ſimple without any Condition at all; as alſo becauſe ſuch a Condition is not held as a Real Condition, but rather as the counterfeit thereof. For Inſtance, ſuppoſe the Teſtator in his Teſtament ſaith, [I Will that A. B. ſhall have 20 l. if I ſo order it in my Codicil, or if he doth what I ſhall there Appoint him.] The Teſtator dies without making any Codicil, or having made one, there appears nothing therein appointed by him for A. B. to do; he ſhall have the 20 l. notwithſtanding ſuch Condition, for the Reaſons aforeſaid.lll. ſi quis ita & gloſs. ibid. ff. de haered. inſtit.

17. Another way whereby Legacies become void is when the Teſtator takes them from one, and gives them to another, which the Law calls Tranſlation, and which is more than a bare Ademption p. 340thereof; for this doth only take it away, but that doth not only ſo, but gives it to another, or takes it from one that it may be given to another, or takes away one thing that another may be given; ſo that Tranſlation compriſeth in it Ademption and Bequeathing. mmArgum. & Rub. in tit. de adim. Legat.[What I gave to A. B. I do give to C. D. It is a Tranſlation to C. D. implying an Ademption from A. B.

18. This Tranſlation may be four ways, as either from one Legatary to another, or from one Co-executor to another, or from one thing to another, or from a pure, ſimple, and abſolute Legacy to a Conditional one. nngloſs. in l. …icut adimi. ff. cod.And it carries with it the ſame Conditions the Legacy had before it. Tranſlation, unleſs it be ſuch a Condition as is inherent in the perſon of the firſt Legatee: As if a Merchant-Teſtator ſhould give in his Will 500 l. to his Son John then in the Straights upon this Condition, if his Ship ſhall ſafe arrive from the Straights. After he takes this Legacy from his Son John, and by way of Tranſlation gives it to his Son William at home without any Repetition of the ſaid Condition, and dies. In this Caſe, and notwithſtanding ſuch Condition were not repeated in the ſaid Tranſlation, yet the Law implies it, and William cannot claim the 500 l. till the Ship returns. Not ſo, in Caſe the Condition were inherent in the perſon of John the firſt Legatee; as if the Teſtator had ſaid, [I give my Son John 500 l. upon this Condition that he come home ſafe in my Ship from the Straights.] In this Caſe the Law will not imply the Condition as repeated in the Tranſlation to William, which was neceſſary in the perſon of John.ool. legarum. & Gloſs. ibid. ff. eod.

19. Suppoſe a Teſtator gives A. B. a Houſe ſimply, purely, and abſolutely; after in the ſame Will gives to the ſame A. B. the ſame Houſe Conditionally; and after ſays, I would not have my Executor to deliver A. B. the Houſe which I gave him Conditionally; In this Caſe the Houſe is not due to A. B. on any account, unleſs the Teſtator had expreſly added withall, that he would have him to have it purely and without any Condition. ppgloſſ. in l. fundo. & gloſſ. in l. cum. centum. ff. cod.Or if a Teſtator in his Will give A. B. 100 l. and in his Codicil 50 l. in which Codicil he ſaith, That he would not have his Executor to give him more than 50 l. In this Caſe there is an Ademption of 50 l. from the Legacy of 100 l. given to A. B.qqdict. gloſſ. & l. ſi quis ita. §. cum. Titio. ff. cod.

20. A Teſtator ſaith, I give my Houſe to John Styles, and my Ground to William Styles; after in the ſame Will ſaith, [What I gave to Styles my Will is to have it taken from him.] And ſo it doth not appear, from which Styles he intended. In this Caſe the Deviſes are due to both the Styles; For if he had given a Legacy to Styles, and no Evidence of which Styles, the Law would have been, that it is due to neither; and therefore by paritie it ſhall in the other Caſe be due to both,rrgloſſ. in l. ſundo. ff. de adim. Legat.

p. 34121. A Teſtator gives 100 l. to his Daughter, ſaying withall, That if ſhe will not Marry with A. B. it ſhall be taken from her, and given to him, and dies. After the Daughter alſo dies, and before ſhe was capable of Marriage or qualified for conſent thereto. In this Caſe the Legacy of the 100 l. is not Tranſlated from her to A. B. becauſe the Tranſlation here ſeems to be threatned Nomine poenae; and where there is no fault there ought not to be any Puniſhment.ssl. ſancimus. C. de poenis. & Mant. de. Conject. ult. vol. lib. 12. tit. 3. nu. 2. & Alij.

22. Legacies may be alſo void or voidable by reaſon of the Incapacity of the Legatary to take by a Legacy or Deviſe, and this may happen ſeveral ways. Generally whatever incapacitates an Executor for an Executorſhip, hath the ſame effect on a Legatary as to a Legacy. ttgloſs. in l. 3. §. fin. ff. de adimend. Leg. & l. ex part. tit. cod. & Mant. de Conject. ult. vol. lib. 12. tit. 4. nu. 2.But more particularly, if Capital and grievous Enmity happen between the Teſtator and the Legatary, That alone by the Naked or Tacite Will of the Teſtator, that is, without any ſolemn or expreſs order from the Teſtator, is an Ademption in Law of his Legacy, but if they happen to be after Reconciled, the Legacy returns to its priſtine validity, becauſe every Mans Will is Ambulatory (ſo the Law phraſes it) to the very laſt Moment. The Law is very clear in this Point, uul. ſi inimicitiae. ff. de ijs quib. ut indign.which tacitely ſo underſtands it. wwl. 3. §. ult. ff. de adim. Leg.Yea, this holds true, albeit the Teſtator himſelf were the firſt cauſe of the difference between them; xxl. 4. ff. de adim. Legat. & Mant. lib. 12. tit. 5. nu. 9.becauſe it is thence inferr'd, that he hath changed his Mind: Yet the Law is not in this Point without its Reſtrictions; for it will not hold in all Caſes, ſpecially where the Legatary hath deſerved well of the Teſtator, nor ſhall every light offence intervening work this Ademption. yygloſs. in l. fundo. ff: de adim. legat. & l. ſi quis ita. §. non ſolum. ff. eod.But a Criminal Accuſation will amount to this Capital Enmity: zzgloſſ. min. lit. a. in l. filio. §. Seia ff. de adim. Leg.And therefore if the Legatary ſhall accuſe the Teſtator of ſome Capital Crime, he is underſtood as his Capital Enemy; and conſequently the Law implyes an Ademption of his Legacy. aaIbid.Likewiſe the Law tacitely implyes the ſame, in caſe the Legatary ſhould tacitely commit a Treſpaſs on the Teſtators Wife, bbgloſſ. in l. fidei commiſſ. in fin. ff. de Fidei V. Jaſon in l. ſororem. nu. 5. tit. eod.which is no leſs true in the Theory as to matter of Law, then common in the Practice as to matter of Fact. Likewiſe if the Teſtator Bequeath to his Wife, and ſhe play the Whore, ſhe forfeits her Legacy.ccGloſſ. Bert. & alij Communiter. in dict. l. fidei commiſſ. ff. de fidei. & Bert. in l. 1▪ ff. de ijs quib. ut indign.

23. By the way obſerve, That an Executor is not deprived of his Executorſhip by intervening Enmity between him and his Teſtator, as the Legatary is of his Legacy; for albeit whatever invalidates an Executorſhip, is equally fatal to a Legacy; yet this will not hold viſe verſa. For put the Caſe, That the Teſtator makes A. and B. his Executors, and Bequeaths to A. 100 l. After there ariſes very grievous Enmity between the Teſtator and A. the Co-executor and Legatary alſo: For which Reaſon the p. 342Teſtator Reſolves upon making another Will, and to take from A. whatever he had given him. And having accordingly begun to make ſuch ſecond Will, dies before he could finiſh the ſame, or therein ſay any thing as to A. Whereupon A. as one of the Two Co-executors and Legataries, claims both a Moiety of the Teſtators Perſonal Eſtate, and the Legacy of 100 l. alſo. The Queſtion is, whether he ſhall have both? It is anſwered Negatively; He ſhall have a Moity of the Perſonal Eſtate, but not the Legacy; becauſe a Legacy may be taken away by the bare and naked Will of the Teſtator, that is, by his Will Tacite and without any Solemn Formalities: But the Executorſhip not ſo.ddgloſs. in l. ex parte. ff. de adim. Legat. Ratio eſt, quia Inſtit. haered. (h. e.) Executores, eſt Caput Teſtam. gloſs. min. ibid.

24. Add to this, That in Caſe the Legatary ſhall after the Teſtators death, in his own Name Accuſe the Teſtament of Falſity, he looſeth his Legacy. eel. poſt Leg. ff. de his quib. ut indign.Likewiſe if he ſhall Surreptitiouſly get into his Cuſtody the Teſtament, and Conceal the ſame, he looſeth the Legacy therein Bequeathed to him. ffl. ſi Legetarius. & ibi Paul. Caſtrenſ. in Summa C. de Legat.Or if he Cancel the Teſtament, his Legacy is loſt. ggl. ſi quis cum falſo. §. Divus. & l. ſi quis patr. ff. ad leg Corn. de fal…s.Or by his own Authority, without the Executors Conſent or Delivery, ſhall uſurp the Poſſeſſion of what is Bequeathed him; In ſuch Caſe he Forfeits his Right thereunto; hhl. non dubium. C. de Leg. Si…hard. in dict. l. non dubium. & Perk. tit. Teſtam. ſo. 94.unleſs the Teſtator himſelf Licenced him ſo to do; iiPart. in l. T…io. §. Lucius ff▪ de Legat. 1. & alij.Or that he had it in his poſſeſſion at the Time of the Teſtators death, there being Aſſets ſufficient to pay his Debts; in which Caſe he may lawfully retain the Thing Bequeathed to him, without the Executors delivery thereof, kkSo…n. Concil. 11. lib. 1. & Olden de Action. claſſ. 2. Action 2. fo. 113Or when he is as well Executor as Legatary; llSichard. in dict. l… non dubium. nu 13.Or laſtly, when the Thing is Bequeathed to Pious uſes.mmTira que de privileg. piae Cauſae. cap. 45.

25. Again; unleſs the Legatary ſurvive the Teſtator, the Legacy will not be due. nn…. ſi poſt. ff. quando… dies. leg. ced.Otherwiſe, and if it be not Conditional, nor made payable at a future time certain, it will be due immedately upon the Teſtators death. ool. unie. §. cum igitur. C. de cad. tollend.Therefore if the Legatary die before the Condition performed, or the day for Payment be come, the Legacy is loſt, ppl. intercidit. ff. de Cond. & Demond.if that Time were limited not to a day certain, but uncertain. qql. dies incertus. ff. eod.Otherwiſe, and the day be certain, though the Legatary dies before it comes, the Legacy ſhall accrew to his Executors, for in that Caſe the Legacy was due at the Teſtators death, though not payable till that day certain be come. rrl. cedere di…m. ff. de verb. ſig.But if the day or time be altogether uncertain, the Legacy is then as if it were Conditional; ssdict. l. dies incertus.And the breach or non-accompliſhment of a Condition in it ſelf Lawfull and Poſſible, doth either ſuſpend or extinguiſh the Legacy. And as to that frequent Condition relating to Marriage ſo commonly annexed p. 443to the Execution of a Legacy it is not Impertinent here to inſert. That albeit a Condition abſolutely againſt Marriage, is unlawfull, yet not ſo if it be only againſt Marriage with ſuch or, ſuch a Perſon, or with ſuch kind of Perſons, and therefore the Condition is good, if the Teſtator gives his Daughter 100 l. under this Proviſo, That ſhe Marry with a Merchant, or a Merchants Son, otherwiſe the Legacy to be void; In which Caſe if ſhe Marry firſt with a Merchant, and after his deceaſe with another who is not a Merchant, nor a Merchants Son, ſhe ſhall looſe her Legacy.ttMant. de Conject. ult. Vol. lib. 11. tit. 18 nu. 3.

26. Laſtly, The Legacy is but equivalent to a Cypher by the voluntary waiver and refuſal of the Legatary declaring his diſſent thereunto; As alſo by the Actual and total deſtruction of the Thing it ſelf Bequeathed; for if neither the Quantity nor the Quality thereof can appear, the Legacy is void. uul. ſi ſic. §. 1. ff. de Leg. 1. & l. Titia. in prin ff. de Leg. 2. & l. cum poſt §. gener. ff. de jure dotis.Hence it is, That the Bequeſt of a Debt is void, if Payment thereof be made to the Teſtator in his life time; otherwiſe if after his death it be paid by the procurement of his Executor. wwl. ſi is quod. ff. de Liberat. Legat.But if the Teſtator himſelf doth exact the Debt, the Legacy thereof is extinguiſh'd. xx§. tam autem corporales. Inſt. de Leg. & l. ſi ſic. §. 1. in fin. ff. de Legat. 1.Otherwiſe if paid to the Executor, by whoſe default if any other thing Bequeathed doth periſh, it ſhall be no loſs to the Legatary; yyPaul. de caſt. in l. ſervum filij §. ſi pocula, ff. de Leg. 1. & l. ſenatus. in tit. eod.nor any loſs to him, in Caſe the Legacy be ſomething in general, as a Horſe or an Oxe, not ſaying which; or in Caſe the Legacy conſiſt in Quantity, as ſo many Buſhels of Corn, not ſaying of what Grain, or in what Garner or Granary; In which, and other like Caſes the Legacy is not void, albeit the Thing ſo Bequeathed ſhall uttterly periſh.zzl. incend. C. ſi cerpe. & l. non amplius. §. 1. ff. de Lagat. 1. Paſch. 4. Jac. in B. R. Kirton & Simpſons caſe. Cro. 2. part. 115. & Hugh. Abr. ubi ſupra.

Upon Evidence in Treſpaſs, the Caſe was, A. made his Will in writing, and thereby Deviſed his Lands to E. H. and her Heirs, and afterwards lying ſick, becauſe the ſaid E. H. did not come to viſit him, he Affirmed, That E. H. ſhould not have any part of his Lands or Goods; It was the Opinion of the Court, That it was no Revocation of the Will, being but by way of Diſcourſe, and not mentioning his Will: But the Revocation ought to be by expreſs words, that he did Revoke his Will, and that ſhe ſhould not have any of his Lands given her by his Will.

Lands Deviſed by Will to one, and after a Feofment thereof Trin. 6. E. 6. Dyer. 74. Hughs. ibid.made by the Deviſor to another; the ſaid Deviſe is Revoked by ſuch ſubſequent Feofment. As in the Lord Bourchers Caſe, touching his Will made 23. H. 8.

Note, By all the Juſtices, upon an Evidence to the Jury in an Ejectione Trin. 30. El. in C. B. Aſhby & Lavers caſe. Goldesb. 93. &Firme, That if a Man hath a Leaſe, and diſpoſeth of it by his Will, and afterwards ſurrenders it up, and takes a new Leaſe, and p. 344after dyeth; That the Deviſee ſhall not have this laſt Leaſe, becauſe Hughs ibid. Vol. 3. tit. Revocation. Mich. 31. El. C. B. Goldesb. 109, 110. vid. Cook. 4. part. 61. Forſe & Memblins caſe. & Hugh. ibid.this was a plain Countermand of his Will.

A Feme Sole was Seized of Lands in Socage, and by her laſt Will Deviſed them to I. S, in Fee, and afterwards ſhe took the Deviſee to Husband, and during the Coverture ſhe Countermanded her Will, ſaying, That her Husband ſhould not have the Land, nor any other Advantage by her Will. It was Adjudged upon great deliberation that it was a Countermand of the Will, the words being ſpoken after Marriage; for the making of a Will is but the Inception thereof, and takes not Effect till the Deviſors death.

One Deviſed Lands to his Siſter in Fee, and after made a Leaſe to her for Six Years of the Lands to begin after his Deceaſe, and delivered it to a Stranger to the uſe of his Siſter; which Stranger did not deliver it to her in the Teſtators life time, and ſhe Refuſed, and Claimed the Inheritance. In this Caſe it was Reſolved, becauſe the Deviſe and the Leaſe made to one and the ſame Perſon, beginning at the ſame time cannot ſtand together in one and the ſame Perſon, That it was a Countermand of the Mich. 2. Jac. in C. B. Cook & Bullocks caſe. Adjudg'd acc. Cro. 2. part. 49. & Hugh. Abr. ibid.Mic 2Deviſe. But it was there Agreed by all the Juſtices, That if the Leaſe had been made to any other than the Deviſee, they might ſtand together, and the Leaſe ſhould not have been a Revocation of the Will as to the Inheritance, but only during the Term.

In an Ejectione Firme upon Evidence to a Jury. It was Reſolved by the whole Court, That if one maketh his Will in Writing of Lands, and afterwards upon Communication ſaith, That he hath made his Will, but that ſhall not ſtand. Or I will Alter my Will, &c. That theſe words are not any Revocation of the Will, for they are words but in futuro. But if he ſaith, I do Revoke it, and bear witneſs thereof, hereby he abſolutely declares to Revoke it in praeſenti; and it is then a Revocation. And in this Caſe it was Agreed by the Juſtices, That as one ought to be of good and ſane Memorie at the diſpoſing, ſo Mich. 16. Jac. in B R. Cranvel & Sanders caſe. Cro. 2. part. 487. & Hughes ibid. Mich. 5. Jac. B. R. Webs caſe. Adjudg. Roll. Abr. tit. Deviſe. lit. D. Mic. 1. Jac. B. R. Goodwyn & Goodwins caſe. Yelv. Rep.Mic 5Mic 1he ought to be of as good and ſane Memorie at the Revoking of it. And as he ought to make a Will by his own directions, and not by Queſtions: So he ought to Revoke it of himſelf and not by Queſtions.

If a Man Deviſe 20 l. to the Pooreſt of his Kindred, it is void by Reaſon of the uncertainty whom the Court ſhall judge the Pooreſt.

A Legacy of 20 l. given by a Teſtator to his Daughter, to whom his Executor gave Bond in 40 l. for payment thereof according to the Will. The Daughter takes Husband, who ſued the Executor in the Eccleſiaſtical Court for the Legacy. The Ex-Executor p. 435pleaded payment according to the Bond; and becauſe the Eccleſiaſtical Judge would not allow the Plea, the Executor brought a prohibition, ſhewing by way of ſurmize the matter aforeſaid. Tanfield Serjeant moved for a Conſultation, becauſe the Suit was for a Legacy, which is of Eccleſiaſtical Cognizance: And albeit the Executor pleaded Payment, which is not there allowed, yet he ought not to have a prohibition, becauſe Payment is a good Plea in that Court; and if the Judge there will not allow it, the other may appeal to the Superiour Judge; and if this ſhould be ſuffered in the Caſe of a Legacy, then the Eccleſiaſtical Court ſhould trie nothing. But (according to Gandy, Fenner, and Yelverton, Juſtices) the Surmize is good; for the Executor by entring into Bond to the Daughter for Payment of the Legacy, had Extinguiſh'd the Legacy, and had made the 20 l. Deviſed a Debt, Suable meerly at the Common Law, and not there.

A Stranger Diſſeiſes the Deviſor; if he die before Re-entry, 39. H. 6. 18. b. Roll. Abr.the Deviſe is void.

If there be divers Deviſes of one thing in the ſame Will, the Rol. ibid. lit. T.laſt Deviſe ſhall take effect. Co. Lit. 112. b.

If a Man Seiſed in Fee Deviſe the ſame to I. S. in Fee, and Mich. 38, 39. El. B. R. inter Mountague & Jeffryes Agreed per Cur. & Council. Rolle. ibid. lit. V. 26. El. B. Wilcocks caſe. per Gawdey Roll. ibid.afterwards makes a Leaſe thereof to I. D. for Years; this is no Revocation of the Fee, but only during the Years. Alſo if afterwards he deviſe that Leaſe to another for Life, yet that is not any Revocation of the Fee, but only during the Eſtate for Life.

If a Man poſſeſſed of a Term for 40. Years, Deviſe the ſame to his Wife, and after Leaſe the Land to another for 20. Years, and die; that Leaſe is not a Revocation of the whole Eſtate, but only during the 20. Years, and the Wife ſhall have the Reſidue by the Deviſe.

It appears therefore, that a Legacy may indirectly, and by Implication be Revoked, as well as directly and expreſly; alſo in part as well as in whole; and the Will may ſtand where Legacies in that Will do not.

In a Replevin upon Evidence given, the Caſe was this. I. W. was Seiſed of the Lands in Queſtion, and of divers other Lands; and by his laſt Will Deviſed all his Lands and Tenements to A. W. of London in Fee. After which he made a Feofment in Fee of the ſame Lands which he had Deviſed to the ſaid A. and when he Sealed the Feofment, he demanded and ſaid, will not this hurt my Will? To which it was Anſwered, That it would not: And he ſaid, If this will not hurt my Will, I will Seal it, and then he Sealed it, and a Letter of Atturney to make Livery: The Atturney made Livery in ſome of the Lands, but not in the Lands in Queſtion; afterwards the Teſtator dyed. It was ſaid, p. 436That the Feofment was a Revocation; for if the Teſtator had ſaid, That this ſhall not be his Will, then it had been a plain Revocation, and then the making of the Feofment is as much as to ſay, That the Will ſhall not ſtand. But it was Anſwered, and Reſolved by the whole Court, That it Appeared, That the mind of the Teſtator was, That his Will ſhould ſtand, and when he made the Feofment, this was a Revocation in Law; Mich. 29 El. in B. R. Gibſon & Platleſſee's caſe. Goldesb. 32, 33. vid. Owen 76. the ſame Caſe. Hugh's Abr. verb. Wills and Teſtaments.and here is no Revocation in Deed; For he ſaid, If this will not hurt my Will, I will Seal it: And although that the Atturney made Livery in part, ſo as the Feofment was perfect in part; yet for the Lands in Queſtion, whereof no Livery was made, the Will ſhall ſtand; for a Will may be effectual for part, and for part it may be Revoked; and the Court told the Jury, That this was their Opinion, and the Jury found accordingly.

The Caſe in Chancery was this, C. E. the Teſtator, 15. Jac. made his Will in Writing, and thereby Deviſed Legacies to Charitable Uſes, and to R. and W. his Brothers, viz. to one 100 l. and to the other 1000 l. and other Legacies to his Kindred; and made his Wife his Executrix, and Appointed his two Brothers to be joyned with her as Executors in Truſt for his Wife; afterwards 22. Jac. he ſent for ſeveral Perſons to come to him; when they came, they demanded of him, What Friend he thought beſt to be his Executor, and to ſee his Will performed? and whether he Truſted any Perſon more than his Wife? He Anſwered, That his Wife was the fitteſt Perſon, and therefore ſhould be his Sole Executrix. Being then moved to give other Legacies to his Father, Brethren, and Kindred; He Anſwered, He would not leave them any thing, But Bequeathed to I. S. his God-ſon 30 s. And being Requeſted by his Wife to give him a greater Legacy; He Anſwered, Thou knoweſt not what thou doeſt; do not wrong thy ſelf, 30 s. is Money in a Poor Bodies Purſe: And the Teſtator ſpake theſe words, Animo Teſtandi, & ultimam voluntatem declarandi. And all this was ſet down in a Codicil: And the firſt Will and the Codicil was proved in Communi forma. Whether this Codicil was a Revocation of the Legacy given to the Two Brothers, was the Queſtion, It was Reſolved both by the Civilians, and by the Judges of the Common Law, That it was not a Revocation of the Legacies. Their Reaſons were, Becauſe there was an Abſolute Formal Will made in his Health, and there being no Speech made by him of his Formal Will, nor of the Legacies thereby Deviſed. The Anſwer to a Doubtful Queſtion ſhall not take the Legacies before Deviſed: And his Anſwering, I will not give them any thing: Upon ſuch Doubtfull Speeches to Nullifie a Will adviſedly made ſhall not be permitted, without clear and perſpicuous Revocation, or words that p. 437do amount to ſo much: And thereupon upon this Opinion of Mich. 2. Car. in Chancery. Eyres & Eyres caſe. Cro. 1. Par. 37. & Hug. Abr. verb. Wills, &c.Mic 2the Civilians and Judges, the Lord Keeper Decreed the Legacies to the Brothers, the Codicil having made no Revocation of them.