The Orphans Legacy, Part 3 · Chapter 26

The Orphans Legacy · Part 3 · Chapter 26

p. 437CHAP. XXVI. Certain Poſitions or Aſsertions of Law for the better understanding of this Subject of Legacies and Deviſes, with certain mixt Caſes touching the ſame.

1. IF the words of the Legacy be Doubtful or Ambiguous, the Motive inducing the Teſtator, or the Cauſe of the Legacy is ſpecially to be inſpected.aaRub. in l. uxorem. ff. de Legat. 3.

2. In Caſes Doubtful whether the Legacy be given Abſolutely or Conditionally, it ſhall be preſumed as Pure, Simple, and Abſolute, rather than Conditional.bbgloſs. min. lit. b. in §. cum ita l. ut haered. ff. de Legat. 2.

3. In a Legacy Doubtful as to its value for want of ſome diſcriminating deſcription thereof by the Teſtator, that which is of the leaſt value, belongs to the Legatary.ccl. ſi ita. ſit. & gloſſ. ibid. ff. de Legat. 1.

4. Likewiſe in all Dubious Legacies as to the Quantity thereof, the leaſt is generally to be underſtood.ddl. qui concubinam. §. cum ita Legat. ff. de Legat. 3.

5. A Doubtfull Legacy relating to Goods, ſhall be underſtood of ſuch only as the Teſtator had at the making of the Teſtament, for the clearing whereof the Law caſts the onus probandi on the Legatary.eel. ſi ita. ff. de aur. & arg. leg. &. Bald. in l. ult. §. ult. nu. 2. verſ. item ſi Teſt. C. de Appel.

6. Where the Doubt ariſes from the Teſtators words, the Ambiguity ſhall be interpreted in favour of the Legatary.ffMantic. de Conject. ult. Vol. lib. 7. tit. 1. nu. 32.

7. In the Interpretation of Legacies the common uſage of Speech is more to be conſidered, than the exact propriety of the words.ggAnchor. q. 62. lib. 3. nu. 6.

8. Alſo the Teſtators ſenſe and meaning is more to be conſidered than his words.hhgloſs. in l. fundo. ff. de adim. legat.

9. The Teſtators words are to be underſtood rather as he thought then as he ſpake or writ, that is, the effect of the Teſtament is guided, governed and over-ruled more by the Teſtators Opinion, than as things are in themſelves.iigloſſ. min. lit. a. in l quo loco. ff. de haered. Inſtit.

10. When the Teſtators words of Bequeathing ſeem to interfere one with another, the latter words ſhall for the moſt part p. 438prevail. kkgloſſ. min. lit. f. l. ſi mihi & tibi. ff. de Leg. 1.Yet not always ſo; there are ſome Caſes wherein Contrarium verum eſt.llgloſſ. mag. lit. a. nam & …um. in dict. l

11. When the Teſtators mind and meaning is not as intelligible as it ſhould be, hold his words before the Glaſs of the Law to make it as viſible as it may be; the Law is the beſt, and indeed the only interpreter in all ſuch Caſes.

12. An imperfect Speech in Bequeathing a Legacy may be reduced to ſuch as is Equivalent to that which is perfect, if the Teſtators mind and meaning may rationally be preſumed. mml. ſi in Teſt. ff. de Legat. 1.For Inſtance. The Teſtator ſaith,, [Let 10 l. to A. B.] without the words [be given.]

13. Words of the Preſent Tenſe uſed in the form of a Deviſe, are ever to be limited to the time of making the Teſtament.nnl. uxorem. §. Teſtam. ff. de Legat. 3.

14. A Legacy may paſs by Implication, as well as by expreſſion; and a Deviſe may be as well inferr'd from the Teſtators Intention, as from his Verbal Diſpoſition.ooRub. in l. pater filium. ff. de Legat. 3.

15. A Bequeſt is good, albeit the Quality or Deſcription of the thing Bequeathed, (which the Teſtator had ſaid in his Will he would there inſert) be omitted, provided the thing Bequeathed be not left at uncertainties.ppl. ibid. §. vicos. 33. ff. de Legat. 2.

16. Words ſpoken by a Teſtator by way of Council, annexed unto, or inrerwoven with words Bequeathing a Legacy, do not import any Condition as thence charging the Legatary therewith.qqdict. l. cum pater. §. 24. ff. de Legat. 2.

17. A Condition of Non-alienation annexed to a Deviſe, is not to be extended to ſuch an Alienation, as is abſolutely neceſſary and unavoidable, but only to ſuch as is meerly voluntary.rrBart. in dict. L. ff. de Leg. 3.

18. A neceſſary Condition annexed to a Legacy doth not make it Conditional; as if the Teſtator having appointed A. B. his Exccutor, ſhall after ſay. I give I. G. 100 l. if A. B. be my Executor.ssl. haec verba. & gloſſ. ibid. ff. de Legat. 1.

19. Pronowns Relative, (as who, which, or the like) joyned with a Word of the Future Tenſe in a Bequeſt, do imply a Condition. As thus, the Teſtator ſaith, [That A. B. who ſhall be my Executor when I die; ſhall give C. D. 100 l.] which is, as if he had ſaid, [if A. B. be my Executor, he ſhall give C. D. 100 l.]ttl. Stichum. ff. de Legat. 1.

20. Likewiſe a day uncertain ſet for the Payment of a Legacy, makes it a Conditional Legacy.uul. cum pecunia §. quod ita. & gloſſ. min. & Bart. ibid. ff. de Legat. 2.

21. An impoſſible Condition impoſed upon a Legatary, ſhall not hurt him in his Legacy. wwInſt. de haered. juſt. §. impoſſibilis. & gloſſ. in §. in Teſtam. l. ab omnib. ff. de Leg. 1.Albeit the Teſtator thought it Poſſible. l. ſervo ff. Con. Ind.

p. 43922. A Legatary cannot transfer his Legacy, if he die depending the Condition.xxC. de cad tollend. §. ſin autem. & gloſſ. min. l. miles. ff. de Legat. 2.

23. That Condition needs no Expectation, whoſe Event hath no Operation.yyl. ſi quis ita. ff. de haered. inſt.

24. A Legacy taken away under a Condition, is underſtood as given under the contrary Condition. zzl. ſi. legatum pure. & l. legata inutiliter. ff. de adim. Leg.As if the Teſtator ſaith, [A. B. ſhall not have 100 l. if my Ship which I expect home, ſhould chance to periſh in the Sea.] In this Caſe A. B. ſhall have 100 l. if that Ship ſhall ſafe arrive.

25. The Legataries Legacy is not Tranſmiſſable to his Executors, if he die before the accompliſhment of the Condition thereunto annexed.aal. intercidit. ff. de cond. & demon.

26. Every Condition relating to a Legacy ought to be underſtood ſo, as may admit a poſſibility of both Exiſtence and Nonexiſtence.bbl. ex facto. §. ult. ff. ad Treb.

27. To find out the mind of the Teſtator, and to reach at the very Truth of the Meaning, Reſpect muſt be had rather to the Time of his making the Teſtament, than to the Time of his death.ccRoman. in Authen. ſimiliter. nu. 93. in fin. ad l. Falcid.

28. The Teſtators meaning in all probability is beſt interpretable by reflecting on his uſual Mode, and common Cuſtom of ſpeaking.ddl. ſi ſervus plurium. §. ult. ff. de Legat. 1.

29. All Diſpoſitions made by a Teſtator muſt be underſtood under the Qualification of Rebus ſic ſtantibus.eeBart. in l. quoties. §. ſi duo. 5. nu. ff. de haered. Inſtit.

30. The Teſtators Will ought to have ſuch due Conſtruction, as may enure rather to the validity than nullity of the Diſpoſitions therein made by him.ffl. quoties & l. ubi eſt. ff. de reb. dub.

31. To prevent the Inutility of ſuch Diſpoſitions made by the Teſtator, he ſhall be preſum'd (if poſſibly the Caſe will bear it) to have in his thoughts what is not contained in his words.ggBart. in l. quintus. §. 1. nu. 3. ff. de aur. & arg. leg.

32. A Legacy of Releaſe or Diſcharge to Debtors, is not Extenſive to other than were Debtors at that time when the Teſtament was made; unleſs the Teſtator Expreſly Bequeath it otherwiſe.hhl. Aurelius. §. 1. ff. de Lib. Legat. & Fulg. Conſ. 37.

33. To the Payment of an Annuity Bequeathed in a Will, it is ſufficient if the laſt Year were but newly begun when the Legatary dyed.iil. a vobis. Rub. ff. de Annuis. Legatis.

34. In Legacies of a periſhable Nature or Quality, that interpretation ought to be made, which may beſt prevent the deſtruction or pejoration of the Thing Bequeathed.kkgloſſ. min. lit. e. l. fi ita quis ff. de Legat. 1.

35. Impoſſibility deſtroys a Legacy. Underſtand it of ſuch a Moral Impoſſibility as was ſuch ab initio, and not of ſuch as are ſo by ſome Poſt-fact of the Executor that ſhould pay the ſame.

p. 44036. The Bequeſt of a Debt to be due at a day yet to come, is good to the Legatary though the day of Payment comes before the day of the Teſtators death.llgloſſ. min. lit. f. in l. ſi Creditori. ff. de Legat. 1.

37. The Onus probandi doth not lie upon him, who hath the Preſumption of his ſide, and ſuch Preſumption as is not diſproved, or whoſe contrary is not proved; and therefore if the Teſtator Bequeath the ſame Sum of Money more than once to the ſame Perſon, the Legatary if he would have it twice, muſt prove it was the Teſtators meaning to have it ſo.mml. plane. §. ſed ſi. gloſſ. ibid. verb. Divus Pius. & verb. oſtendatur. & gloſſ. min. Litt. ff. de Legat. 1.

38. Things not Merchandable are not Deviſable: Underſtand it ſpecially of things Sacred or Conſecrated. nnl. cum ſervus §. ſi vero. & gloſſ. mag. & min. ibid. ff. de Legat. 1.Nor things joyned to an Edifice, otherwiſe than as the Edefice it ſelf. ool. caetera. ff. eod.In reſemblance to what we hold for Law when we ſay, That things fixed to the Freehold go not to the Executor, but to the Heir.

39. The Teſtator may impower the Legatary to Aſſume his Legacy of his own Authority; ppC. de pign. l. Creditores. & gloſſ. in l. Lucius. ff. de Legat. 2.otherwiſe he may not ſo do, but muſt have it by the Executors delivery.

40. If a Bond or Obligation of a Debt be Bequeathed, the Executor is diſcharged by delivery of the ſame to the Legatary, and by yielding his Name and Authority for the putting of the ſame in Suit in order to a Recovery thereof for the Legataries uſe; but is not obliged to make the Debt good to him, in Caſe the Debtor prove inſolvant.qqBart. in Rub. & gloſſ. min. in. §. civibus. L. Lucius. ff. de Legat. 2.

41. In the Bequeſt of a Bond or Obligation is Comprized both the Principal Debt, and ſuch Intereſt alſo as is due on the ſame.rrRub. in l. Nomen. ff. de Legat. 3.

42. Where there is a limited Executor, and another with him as univerſal Co-executor, that other in Conſtruction of Law is Legatary as well as Executor.ssgloſſ. min. lit. a. in l. ex facto. ff. de haered. Inſtit.

43. A Legacy once extinct by the Teſtators own Alienation thereof, though after Repurchaſed by the Teſtator, is never Recoverable by the Legatary without due proof of a Declaration de novo of the Teſtators intention to the ſame effect.ttRub. in l. cum ſervus. ff. de adim. Leg. & gloſſ. ibid.

44. The Teſtators Will depending on another Mans, is no Will.uul. illa Inſtitutio. ff. de haered. inſtit.

45. The Reaſon of the Law, That Prius ſolvi debet aes alienum quam Legata. wwdict. gloſſ. in l. ex facto.That Debts muſt be paid before Legacies, is becauſe the one is a neceſſary Duty, the other a voluntary Bounty.

46. If a certain Quantity be twice Bequeathed, it is twice due, unleſs the laſt Will of the Teſtator were expreſſed with an intent of Ademption of the firſt. xxRub. in l. cum centum. ff. de adim. Legat.Underſtand this when it p. 441is in two Diſtinct Writings, as in a Teſtament and a Codicil: For the twice Bequeathing to the ſame Perſon the ſame Quantity in the ſame Writing doth not Duplicate the Legacy; otherwiſe if it be in Two ſuch Diſtinct Writings as aforeſaid.yyibid. gloſſ. min. lit. a.

47. The Teſtators Erroneous Demonſtration or Deſcription of the Bounds, Limits, or Scituation of Lands Deviſed by him, doth not prejudice the Deviſe, provided he be not miſtaken in the Land it ſelf.zzl. patronus. § ſempronius. gloſſ min lit. b. ff. de Legat. 3.

48. The Teſtators falſe Demonſtration of the Thing Bequeathed, doth not hurt the Legacy, ſo as his Intention be Evident.aaInſt. de Leg. §. huic & gloſſ. in §. quod ſi. l. ſi ſic legat. ff. de Legat. 1.

49. If a Teſtator Bequeath part of his Goods to A. and ſaith not what part, the Legatary ſhall have a Moity of the whole.bbgloſſ. in l. ſi Titius. ff. de Legat. 3.

50. If the Teſtator ſaith, I give thee a part of my Houſe, or the like; it is as if he had ſaid, I give thee one half of my Houſe.ccgloſſ. de verb. ſign. l. nomen. §. portionis. & gloſſ. mag. min. in l. Titius. ff. de Legat. 1.

51. There falls no more under the Notion of Goods, than what the Teſtator hath clear of his Debts.ddgloſſ. in l. cum autem. ff. de Legat. 1.

52. If I give 10 l. to A. and B. they ſhall have 10 l. between them, not 10 l. each.eel. ſi quis teſt. & gloſſ ibid. ff. de Legat. 1.

53. If a Man Bequeath all his Horſes, his Mares are comprized therein.ffl. Martianus. ff. de Legat. 3. & Cal. Lex. verb. Legat.

54. By a Bequeſt of Lambs are underſtood ſuch as are under a year old.ggl. cum. quaereretur. ff. de Legat. 3.

55. By a Bequeſt of Cattle do paſs all Four Footed Tame Beaſts, that feed in Herds, Droves, or Flocks, or otherwiſe.hhl. legatis §. Pecoribus. ff. de Leg. 3.

56. Although Mares paſs (as aforeſaid by a Bequeſt of Horſes, iidict. l. §. cquis.yet not e contra; nor by a Bequeſt of Geldings.

57. Nor by a Bequeſt of Sheep do Rams or Lambs paſs; yet in that Caſe the Cuſtom of the Place is to be obſerved; for in ſome places they are reckoned as Sheep as ſoon as they are ſhorn; notwithſtanding both Rams and Lambs ſhall paſs by a Bequeſt of a Flock of Sheep.kkl. ſervis. §. Ovium. ff. de Leg. 3.

58. By a Bequeſt of Wooll is underſtood not only that which is ſeperate from the Skin, but alſo ſuch as is yet on the Skins of dead Sheep, waſh'd or not waſh'd, ſo as it be not yet dyed, nor deſigned for ſome ſpecial or particular uſe.llRub. & l. ſi cui lana. ff. de Leg. 3. & gloſſ. ibid.

59. By a Bequeſt only of Wooll do paſs the Skins alſo of dead Sheep whereon the Wooll is.mmdict. l. §. ſed an pelles.

60. By a Bequeſt of Birds do paſs all Poultry, Geeſe, Pheaſants, and all Tame or Tamed Fowl.nnRub. in dict. l. ſi cui lana.

p. 44261. By a Bequeſt of Wood or Lignum is only underſtood Fuel fit for the Fire, not Silva, or Trees ſtanding or cut, nor Timber fit for Building, which paſs by the word [Materials.]ool. ligni. & glo. ibid. ff. de Leg. 3.

62. By a Bequeſt of Books are only underſtood Printed Volumes, not clean Paper-Books.ppl. librorum. & glo. ibid. ff. de Leg. 3.

63. By a Bequeſt of Silver will paſs Money and Plate, but not the Cheſt wherein the Silver is.qql. argento. ff. de Legat. 3.

64. By a Bequeſt of a Bond, Obligation, or Specialty doth paſs the Debt therein contained, & vice verſa.rrl. qui chirographum ff. de Legat. 3.

65. When a Teſtator Bequeaths a thing in certain; but having more of the ſame kind, which he meant, is uncertain; in ſuch Caſe the Executor, and not the Legatary hath the Election; as when the Teſtator having but two Horſes in all, gives one of them (not ſaying which) to A. B. the Executor, and not he ſhall have the choice.ssl. ſi quis a filio. § ſi quis plures. & gloſſ. …bid. lit. a. verb. Elegerit. ff. de Legat. 1.

66. Likewiſe when the Teſtator Bequeaths any thing Real and Immovable in Certain, as his Field called Blackdown, when he hath two Fields of that Name; in this Caſe alſo the Election belongs to the Executor; to give unto the Deviſee which of them he pleaſe.ttl. legato. & gloſſ. ibid. …, de Legat. 1.

67. But when the Legacy is of Generals, or Bequeathed in General, as a Horſe, an Oxe, or the like; in ſuch Caſe the Election is the Legataries, to chuſe only in a way of Mediocrity. uudict. l. legatoFor,

68. When even by the Teſtators own words the Law gives the Election of the thing Bequeathed to the Legatary, it is not intended that he ſhall chuſe that which is the very beſt for himſelf, and the very worſt for the Executor, but ſhall moderate and regulate his choice between them both.wwgloſſ. mag. & min. in §. ſi quis plures. l. ſi quis a filio. ff. de Leg. 1.

69. But when the Election is Doubtful, as whether it doth belong to the Legatary or to the Executor; In that Caſe the Law in favour of Wills gives it to the Legatary.xxgloſſ. min. lit. e. in. l. qui duos. ff. de Legat. 1.

70. A Legacy left by a Teſtator to his Pariſh Church, who after the making of his Will doth change his Habitation, is due not to the Pariſh where he dyed, but where he lived when the Teſtament was made; yyRoman. in Auth. ſimilit. nu. 93, C. ad L. Falcid. per l. ſi cognatis. ff. de reb. dubijs. & l. peto. §. fratre. ff. de Leg. 3.which yet is contradicted, as will ſpeedily appear.

71. The words [Si, Donec, Quamdiu,] and the like, uſed in the Form of a Bequeſt, though they ſeem to be of no great diſconſonancy in their import, yet do exceedingly alter the Caſe according to the diverſity of their genuine acceptations; for a Teſtators Relict having a Legacy given her of 10 l. per annum if ſhe ſhall remain a Widdow, is obliged to give Caution for Repayment (in Caſe ſhe Re-marry) of what in the interim ſhe p. 443ſhall receive by vertue of that Legacy. zzAuth. cui relictum. de jndi. vidui. tollend.otherwiſe if the words were, [untill ſhe ſhall be Marryed, or ſo long as ſhe ſhall remain unmarried.] In both which Caſes ſhe ſhall only looſe it de futuro, but not be obliged to repay what ſhe received de preterito.aal. Filiae. ff. de annuis Leg.

73. It is poſſible that a Legacy may be good, even where the Form of a laſt Will or Teſtament is not obſerved; for a Souldier being abroad in Military Service, wrote home to his Siſter that he ſhouid ſpeedily ſend her a Letter, which he deſired and charged her not to open untill he were dead. Accordingly ſoon after he ſends her a Letter which ſhe preſerves without opening. The Souldier is ſlain in the Wars. After ſhe opens the Letter, wherein was found written to this effect, That he would give her 100 l. It is a good Legacy to the Siſter. This alſo holds true in private perſons; nor is it material whether he be Abſent or Preſent, that thus writes, bbl. miles. & gloſſ. ibid. ff. de Legat. 2.provided it be animo Teſtandi, and without any Revocation ſubſequent.

74. There are a few Caſes wherein a Legacy is not Revocable, Four eſpecially. (1) When the Teſtator Swears never to Revoke it. ccMaſchard. de probat. concl. 359. nu. 8. 19. & l. cum quis decedens. §. Codicillis. ff. de Legat. 3.(2) When it tends to Reſtitution for Goods ill gotten, or wrongfully taken and withheld. (3) When the Teſtator gives it for the disburdening of his Conſcience. ddIdem. Conc. dict. nu. 21.(4) When the Teſtator confeſſeth in the preſence of the Legatary accepting it, that he owes him the Sum which he hath Bequeathed him. eeAlex. Conſ. 153, in fin. lib. 2, Conſ. & ibi Molinae. & Maſchard. ibidThere are alſo, that add a Fifth, viz. When the Teſtator himſelf in his life time delivers the thing Bequeathed to the Legatary. ffAymon. Crave…t. ſup. Rub. de Legat. 1. poſt Bart.But this the Law underſtands more properly as Donatio inter vivos than Legatum; yet if ſuch Legacy be mentioned in the Teſtament (as it muſt be, if the Legatary hath it under that Notion) and ſuch Teſtament afterwards prove Null, that Legacy will be ſo alſo; the Reaſon is, becauſe ſuch delivery thereof by the Teſtator alters not the nature of a Legacy, and will be underſtood to be with an Implicite Referendo to the Teſtament it ſelf.ggCravet. ibid.

75. If the Teſtator in his Will doth Appoint, That whatever he got by Extortion, or any unlawfull ways, ſhall be reſtored, without expreſſing what or to whom) it ſignifies nothing by reaſon of uncertainty; hhl. qui Romae. §. Augerius. ff. de verb. obl. & l. ſi cui. §. Flav. ff. de ſolutio:and which indeed is more a Debt than a Legacy.iiIbid.

76. A Legacy left to one if he will, the Teſtator in the Bequeſt ſaying expreſly, I give A. B. 100 l. if he will accept of it; in ſuch Caſe the Legacy is loſt, if the Legatary knowing thereof die before he hath declared his Will or Acceptance. kkl. ſi ita legat. §. illi ſi volet. ff de Legat. 1. & l. ſi ita expreſſum. ff. de Cond. & Dem.The Reaſon is, becauſe the Legataries Will, and conſequently the power of accompliſhing the Condition is not Transferrable to another. For,

p. 44477. The Legatary cannot Tranſmit his Legacy to his Executor or any other before the day of payment thereof come.lll. unica. §. ſin. autem C de cad. tollend.

78. An Annual Legacy, or a Legacy of an Annuity is payable at the beginning of Every Year, unleſs the Teſtator doth otherwiſe fix the times of payment.mmCar. Tap. in l. Beneficium. ff. de conſt. Prin. nu. 13. & l. nec ſemel. §. 1. ff. quando dies Legat. ced.

79. A Legacy left at a day uncertain when it will be, but certain that it will be, is not due unleſs the day happen in the Legataries life time.nnPetr. Bellapert. in ff. ſi qui cautio judic. cauſ. fac. non obtemp. l. ſi quis poſt tres. nu. 24.

80. A Legacy given by the Teſtator to his Kindred in general, is due to ſuch as were not of Kin to him at the making of his Will, ſo as they be of his Kin at his death.ool. cum ita. §. in fidei commiſſo▪ ff. de Leg. 2. & Jo. Ant. …ubaeus. in §. quidam recte l. Gallus Aquill…s. ff. de Liber. & poſth.

81. In an alternative Legacy, wherein the Executative words are directed neither to the Executor nor to the Legatary, as when the Teſtator ſaith, [I give my Houſe or 100 l. to A. B.] the Election belongs to the Legatary, not to the Executor. ppgloſſ. in l. Lucio Titio. ff. de Legat. 2. & ibi Bart. Alber. Bald. Imola. Paul. Angel. ſalic. Jaſ. cum mult. alijs.The Reaſon is, becauſe the Law ſo favours Teſtaments, as that they ſhall be interpreted with as Extenſive a Latitude as poſſibly may conſiſt with the Teſtators mind and meaning.

82. If the Teſtator ſaith, I Bequeath or Commit my Eſtate as well as my Soul to God.] Whoever hath his Soul, his Pariſh Church ſhall have his Eſtate.qqBald. in pract. tit. de ult Vol. q. 12. nu. 2.

83. If the Teſtator in his laſt Will doth give 100 l. to the Church, (without other deſcription thereof) and had but one Pariſh Church, it ſhall be intended of that, if he dwelt in that Pariſh. rrBart. in l. quae Conditio. §. cum ita. ff. de Cond. & Dem.If he gave it to St. Stephens Church in ſuch a City, by Name, and none there found ſo called, it ſhall be due to the Cathedral. ssPanorm. in cap. nos quidem. nu, 13. de Teſta. & Lapus. in Alleg. 87. nu. 6. & Felin. in c. dilectus. col. 1. & Troil…s Malvctius in Tract. de oblat. par. 4. nu. 3.If having two Pariſh Churches, (one where he made his Will, the other where he dyed) ſhall ſay [I give 100 l. to my Pariſh Church] without other Diſtinction; it ſhall be due to the Pariſh Church where he dyed, if he dyed an Inhabitant thereof, and would there be Buryed. ttJo. Andrae. Gemin. Rom. Anchor. Franc. & Socin. quos reſert & ſequitur Boer. in q. 1…6.Otherwiſe not, ſay ſome of the DD. but they are not clear in that Point. uuMenoeh. lib. 4. Praeſ. 114. nu. 6.Being alſo much divided in their opinion to which Church the Legacy is due, when the Teſtator having at the ſame time, (as well when the Teſtament was made, as when he dyed.) Two Pariſh Churches, his Houſe and Habitation in each, dwelling alike indifferently in each, a reputed Pariſhioner to each, doth Bequeath the ſaid Sum of 100 l. to his Pariſh Church. To find out the Teſtators Intention in a Bequeſt ſo Circumſtantiated, the DD. raiſe their Conjectures either from the conſideration of the Teſtators choice of the Place for his Enterment, as which of theſe two Pariſh Churches he deſired to be Buryed in; or from the conſideration p. 445of his moſt frequent converſe, as which of theſe two Pariſhes he was perſonally moſt converſant in; or from the conſideration of his Affection to the one more than to the other; and lay the greateſt weight upon that where he deſired to be Buryed, as being a Signal of his Affection to that Pariſh Church more than the other, and accordingly give their determination herein. And in Caſe there be not ſufficient Evidence of his Affection more to the one than to the other, the Law preſumes the Legacy for that Pariſh Church which is the pooreſt of the two; but if that neither can ſufficiently appear, then and in ſuch Caſe the Biſhop of the Dioceſs may gratifie which Pariſh he pleaſe, by Aſſigning it the whole Legacy; or otherwiſe may divide it betwixt them both, as he ſhall think fit. wwTiraq. d…. jur. primogen. q. 17. nu. 16. & ſoc. in l. quae Conditio.. § cum ita. nu. 4. ff. de cond. & demon. & Menoch. ubi. ſup. nu. 8.But if the Teſtator himſelf Nominates the Church, and there be ſeveral Churches of the ſame Name, and no ſufficient Evidence which he meant or intended; in that Caſe the Law preſumes he intended that Church which was the pooreſt of the Name.xxBald. in l. ſi quis ad declinand. C. de Epiſo. & Cler. & Angel. in …. ſi quis in nomine. in Auth. de Eccleſiis. tit. & Auchor. §. Salicet S. ocin. & alij.

84. When a Teſtator gives a Legacy to a Man, willing him to live with his Children, the Legacy is extinguiſh'd upon his not living with them, in Caſe the Legacy were given him for the Childrens ſake. yyl. illis libert. in fin. ff. de cond. & dem. & l. Seia. ff. de annuis Legat.Otherwiſe if it were given him for his own ſake, and not for theirs. zzIta poſt glo. Bart. & al. in l. 1. C. de Legat. & Decij Conſ. 601. nu. 3.But if it were given him on both Reſpects, viz. For the love the Teſtator bore him, and that he might live with his Children; in that Caſe the Legacy ſhall be good to him, albeit he doth not live with them; becauſe then the favour the Law allows the Legatary, and for prevention of an Extinguiſhment of the Legacy ſhall turn the Scale, eſpecially if the Teſtator had more than an ordinary Affection for him.aaIbid. Dec. nu. 4.

85. If the Teſtator ſaith, [I would not have my Executor to hinder A. B. in his Legacy, or in what I have Bequeathed to him.] The Law doth infer, that A. B. ſhall take the Thing Bequeathed of his own proper Authority, without expecting the delivery thereof to him by the Executor: bbAngel. in l. ſi res. nu. 1. ff. de rei vindic. … Jo. Cuter. …. n…mo poteſt ff. de Legat. 1.Which holds true, albeit the uſual words of Bequeathing are omitted. For,

86. In the conſtitution of a Legacy it is not neceſſary the Teſtator ſhould in terminis ſay, I Give, Leave, Will, Deviſe, or Bequeath; it is ſufficient if he ſaith, I would have A. B. to have ſuch a Thing, or let my Executor ſuffer him to have it, or let him ſee that A. B. have ſuch a Thing] or any other words of like import.ccl. damnas. eſto. ff. de uſu…ruct. Legat.

87. He that hath the Letters of Adminiſtration cum Teſtamento annexo, is as far forth obliged to pay the Legacies in ſuch Will contained, as if the Will it ſelf had been legally proved.ddl. confi ciuntur. de Codicil.

p. 44688. If the Legatary be a perſon capable of a Legacy at the Time of the Teſtators death, it is ſufficient, albeit he were not ſo at the time when the Teſtament was made.eel. 3. §. quando autem. ff. de jur. Filci.

89. If a Teſtator Bequeath 100. Buſhels of Corn out of his Ground, there is ſuch a Tacite Condition in that Legacy, that if the Ground produce it not the firſt Year, the Legatary may expect it the next, and ſo on ſucceſſively till the Legacy be compleat.ffJo. Guter. in l. nemo poteſt. ff. de Legat. 1. nu. 506. poſt Bart.

90. A Teſtator ſaith, [I give my Phyſick Books to my Son if hereafter he ſhall ſtudy Phyſick; but if he make the Law his Profeſſion, then let him have my Law Books.] After the Son Studies both Law and Phyſick; in that Caſe he ſhall have the Teſtators Books of both Profeſſions.ggBald. in l. fin col. 1. C. com. de l. & Lanc. Gauliaula. in l. 2. ff. de verb. oblig.

91. A Legacy left by the Husband to the Wife ſo long as ſhe ſhall abide and remain in his Houſe, is underſtood as a Legacy given her ſo long as ſhe continues in her widdowed Condition.hhBald. in l. voluntatis. in fin. col. ff. de fidei commiſſ. & Jo. d… Barronibus. ſup. Rub. C. de ſecund. Nupt. nu. 31.

92. If the Husband gives a Legacy to his Wife in this manner, viz. Item, I Bequeath 100 l. to my Wife ſo long as ſhe remain in my Houſe, and with my Goods for my Child till he come of Age; ſhe looſeth her Legacy if in the interim ſhe Marry again, and dwell elſewhere with her ſecond Husband.iil. qui concubinam. §uxori ff. de Legat. 3. & Jo. de Barron. ubi ſupra. nu. 32.

93. Legacies and Bequeſts of a Dubious ſenſe, ought to have ſuch Conſtruction as may render them of uſe to the Legataries. kkl. Titia. §. 1. ff. de Legat. 2.For which Reaſon, if a Teſtator Bequeaths his Debts, he ſhall be underſtood to have Bequeathed his Credits, llBald. in Rub. C. de reb. Cred. nu. 3.In like manner if he Deviſe his Wood, or [Sylva] it ſhall be a Deviſe alſo of the Fruit or Proceed thereof, That ſo the Legatary may have power to cut it down, convert it into Ligna, and Sell the ſame; for otherwiſe the Deviſe would be nothing worth to the Deviſee.mml. Divus. ff. de uſu. & Hab.

94. When the Teſtators ſenſe and meaning is ſomewhat dark and clowdy, it may be Requiſite in ſome Caſes to have due Reflections on, or (as the Phraſe now currant is) to take their Meaſures by the Quality of the Legatary; as if the Teſtator ſhould ſay, [I allow A. B. the uſe of ſome of my Horſes, until my Executor ſhall have Sold them.] In that Caſe, if A. B. be a Farmer, he ſhall not uſe his Hunting-Horſes nor his Coach-Horſes, but his Cart-Horſes and ſuch only as were imployed about his Husbandry Affairs; otherwiſe & e contra if A. B. were of a more refined Quality.nn…lenum. §. equitij ff. de uſu. & hab. & Jaſ. in l. ſi Domus. nu. 6. ff. de Legat. 1. & l. ſi ſervus. §. ult. ff. …od▪

95. If the Teſtator ſaith, I Bequeath to A. B. whatever Debts are made, contracted, and due to me that ſhall be found at my deceaſe; A. B. ſhall in that Caſe have only ſuch Debts as were contracted at that Time when the Teſtament was made, not ſuch p. 447as were afterwards made or contracted: The Reaſon is, becauſe thoſe latter words, [which ſhall be found at my deceaſe] are not Augmentative but Reſtrictive as relating to the words precedent, and therefore ought not to work an Extenſion of that Legacy, leaſt a limiting and diminuting Induction ſhould operate an Augmentation. ooCurtius Jun. in Conſil. 277. nu. 11, 12.For if leſs Debts were found at the Teſtators death than had been made to him at or before the making of his will, there could no more paſs by this Legacy than ſuch, much leſs others that were made and contracted afterwards.

96. In llke manner, if the Teſtator Bequeath all his Books to A. B. after Buys many other Books, after makes another Will, wherein he ratifies and confirms the firſt as to the Legacies therein Bequeathed. Even in this Caſe A. B. ſhall not have the Books bought after the making of the firſt Teſtament. ppRom. ſing. 503. & l. ſi ita. ff. qui dixit. probari. & l. Aurelius. §. Teſtam. ff. de Libera. Legat.Becauſe this Confirmation in ſuch latter Will Ratifies nothing to any Extenſion beyond what is adequate to the Legacy Bequeathed in the former.

97. But if the Teſtator ſhall ſay, I give A. B. all I can, or whatever I can out of the Goods and Chattels which I have.] In ſuch caſe, whatever ſhall be afterwards acquired of that kind by the Teſtator, is contained in ſuch Legacy, and ſhall enure to A. B. qql. fi ita quis Teſt. ff. de Leg: 2. & Bart. in l. fi ita. nu. 3. ff. de aur. & arg. leg. & Ruin. Conſ. 160. nu. 14. lib. 2. & Curt. Jun. in Conſ. 109. nu. 18. & Bello. Conſ. 5. nu. u.Otherwiſe in caſe the Teſtator had limited the words of the ſaid Bequeſt to any certain place.rrBart. ibid. nu. 5.

98. If a Teſtator ſaith, [I Bequeath my things to A. B.] his Money doth paſs by that Bequeſt, becauſe of its Generality; ssBrechaeus. in l. 4. ff. dever ſigOtherwiſe if he ſaith, [I Bequeath my Gold and Silver to A. B.] ttIbid. & l. cum aur. & arg. ff. de aur. & arg. Leg. Rei nomen Pecuniam continet, ſed non e contra, licet Pecunia rem ſignificat. Res eſt Genus, PecuniaſpeciesBecauſe ſuch words are not Generical enough to be Monies infallible continent, for a Man may have very current Money that is neither Gold nor Silver.

99. A Teſtator gives 1000 l. to his Daughters, and dies. After his Relict is delivered of another Daughter, by that Huſband, Deceaſed. That Daughter ſhall ſhare with the other in 1000 l. uuFornerius. in l. 164. de ver. ſig. in prin. & l. qui filiab. ff. de Leg. 1 & l. 5. ff. de Teſt. tut. & l. 5. ff. de oper. lib.Otherwiſe if the Teſtator had limited the Legacy to any Number of Legatees, and ſaid I give 1000 l. to my Three Daughters.

100. A Teſtator ſaith, [I give a Portion of my Eſtate, or a Portion of my Goods to A. B.] without expreſſing ſpecially what proportion. In this Caſe he ſhall have the one half or Moity thereof. wwBrechaeus. ubi ſupra. in l. 164. & l. etiam ff. de uſufract. & l. aetate. §. ſi interrogatus. ff. de interrog. act. & glo. in l. ſi Titius. ff. de Legat. 3.The ſame Law in Caſe the Teſtator had ſaid, [I give A. B. part of my Eſtate, or I give him part of my Goods.] The Reaſon is, becauſe a Dimidiety is the moſt juſt and equalleſt part of the whole. xxBrechae. ibid. In Dubio Dimidia debetur. l. 3. C. de Legat.And the Caſe may ſo happen, as that p. 448Pars ſhall be taken Legally in one ſenſe, as well as Figuratively in another pro toto; as when a Teſtator Bequeaths to his Wife that part of his Houſe he moſt frequented and uſed to live in, ſhe ſhal have in that caſe not only this or that part of the Houſe, as his Bed-chamber, or the like; but the whole of his Habitation that he made uſe of with and for his Family.yyAccu…ſius. in l. uxori. ff. de Legat. 3. & Brechae. ibid.

101. If a Legacy be given between thee and a Child in the Womb, and that Child after happen to be dead born, or never born, thou ſhalt have the whole to thy ſelf, albeit the Teſtator Aſſigned each one his entire proportion thereof.zzFornelius. in l. 145. ff. de verb. ſign.

102. If a Herd of Cattle or a Flock of Sheep be Bequeathed, whereof all of each, ſave one, do die, the Legatary ſhall have that one.aal. ſi grege. ff. de Legat. 1.

103. By the Bequeſt of Bonds or Specialties, the Debts due or to be due thereon, as alſo the right of Action for the ſame are Bequeathed. Likewiſe by the Deviſe of a Purchaſe-Deed, the thing Purchaſed, together with all the Teſtators Right, Title, and Intereſt to and in the ſame doth paſs to the Deviſee.bbl. qui chirographum. ff. de Legat. 3. & l. 1. C. de don.

104. A Bequeſt of Wines doth convey the Veſſels wherein they are to the Legatary, not as if a Man in his Liquor ſhould think (for no Man elſe will) the Veſſels were part of the Wines (as Meddals of Gold or Silver are part of ſuch Mettals) but becauſe the Teſtators intention in the Eye of the Law ſeems to Bequeath them as Acceſſories to the Principal; ccAlceat. & Fornel. in l. 206. ff. de verb. ſig.excepting ſuch as by reaſon of the greatneſs of their Bulk and wide Capacity, cannot without much difficulty be removed out of the Cellars where they are.ddl. 3. de tritic. ff. de vino & olio Legat.

105. If a Legacy be given to the Biſhop of ſuch a Dioceſs, without naming him, and he happen to die before the day for payment thereof come, his Succeſſors ſhall have it; becauſe it is preſumed the Teſtator intended it not to that perſon ſo dignified, but to the Dignity it ſelf. eel. quod principi. ff. de Leg. 2. & Bart. Bal. & Caſtr. in d. locum. & Menoch. lib. 5. Praeſ. 121. nu. 1. &. l. annua in …in. ff. de Annuis Legat.and becauſe the Dignity is not, as the Perſon, Mortal, but Sempervive by Succeſſion. ffglo. in C. quoniam. Abbas. de Offic. de leg.For the ſame Reaſon, a Legacy given to a King (who dies before it becomes payable) accrews to the next Succeſſor, becauſe the Regal Authority never dies. ggBald. in Rub. C. de jur. fi c. lib. 10. nu. 14. & §. ult. in Auth. Quomo. oper. Epiſco.Otherwiſe if the Legacy were given to A. B. (by name) Biſhop of D. becauſe then the Perſon, not the Dignity is the Legatary; the Dignity being mention'd only for diſtinction,

106. If a Legacy be given to the Child in the W…mb, and the Birth prove Monſtrous, that is, very contrary to the common form and ſhape of Mankind, as with a Grows Beak inſtead of a Noſe, or with the Face of an Aſſe inſtead of a better; in ſuch an ill favoured Caſe the Legacy is void. hhBrechaeus. in l. 38. ff. de. verb. ſign.Otherwiſe if it be Born only with ſome of the leſs principal Members imperfect or Supernumerary, p. 449as with half a Thumb, or Two Thumbs, or Six Fingers on a Hand, or the like. iil. non ſunt liberi. ff. de ſtat. hom.But if the Birth (not accidentally) be imperfect as to its Integrals, or defective as to its more Noble and more Principal Parts and Members, as having but one Eye, or but one Hand, albeit the Creature hath life the Legacy hath none. kkl. quod dicitur. ff. de lib. & poſtth. haered.For although an Amplication of the natural Form in this Caſe doth no prejudice, yet a Mutation thereof will. lldict. l. non ſunt liberi.underſtand not this, as if it did extend to Hermophrodites: For if they be not in a double Capacity as to Legacies as well as other things, yet they are not excluded a ſingle Capacity; but in that Caſe it is provided, That that Sex which moſt prevails with them in Nature, ſhall likewiſe prevail in Law, as to the Legacy Bequeathed.mml. quaeritur. ff. de ſtat. hom.

107. To conclude with the Pope, becauſe much of the Law that treats of this Subject (if I would have travell'd that way) borders on his Dominions; it is Aſſerted or Legended (which you pleaſe) by a very learned Author, That Nemo praeter Papam poteſt alterare voluntates Teſtatorum. nnJo. Guterius. in l. nemo poteſt. ff. de Leg. 1.It is nothing ſtrange, that he who aſſumes a Power to diſpoſe of Souls, ſhould alter the beſt faculty thereof; for the Wills Society is the Creatures Felicity.

foreign.

FINIS.