The Orphans Legacy, Part 3 · Chapter 1
CHAP. I. Of Legacies and Deviſes in General.
1. What a Legacie or Deviſe is.
2. What are the Requiſites to the making of a good Deviſe.
3. Whether is more Conſiderable as to Legacies, the Time of making the Teſtament, or of the Teſtators death.
4. In what Court Legacies and Deviſes are properly Recoverable.
1. A Legacy called a Deviſe at the Common Law, aTerms of Law. Ver. Deviſe.is ſome particular thing or things given or left either by a Teſtator in his Teſtament (wherein an Executor is appointed) to be paid or performed by his Executor, b§. 1. Inſt. de Legat.or by an Inteſtate in a Codicil or Laſt Will (wherein no Executor is appointed) to be paid or performed by an Adminiſtrator. c§. non autem. Inſt de Codicil. Et L. ab Inteſt. ff. de jure Codicil.The Word Deviſe is ſpecially appropriated to a Gift of Lands: The Word Legacy to a Gift of Chattels; though both are uſed promiſcuouſly; For a Deviſe is ſaid to be where a Man in his Teſtament giveth or bequeatheth his Goods or his Lands to another after his deceaſe. dTerms of Law, ubi ſupraObſerve, it is formerly ſaid, That a Legacy is a particular thing given by laſt Will and Teſtament; For if a man diſpoſe or transfer his whole Right or Eſtate upon another, That according to the Civil Law is called Haereditas, and he to whom it is ſo transferr'd is termed Haeres; but at Common Law he is the Heir to whom all a mans Lands and Herediditaments do deſcend by right of Blood: And by the ſame Law the Word [Deviſe] from the French Deviſer, is properly attributed to him that bequeaths his Goods by his laſt Will or Teſtament in writing; the Reaſon being, for that thoſe Goods that now appertain only to the Deviſour, are by this act diſtributed and divided into many parts.eCowell Interp. verb. Deviſe.
2. To the giving of Legacies, or to the making of a good and ſufficient Deviſe there are ſeveral things Required. The Perſon of the Deviſor muſt be Legally qualified to Deviſe; the thing Deviſed muſt be ſuch as is Legally Deviſable; The Deviſor at the time of making the Deviſe muſt have Animum Teſtandi; That the Deviſee or Legatary be in his Perſon ſuch as is capable of taking by way of Deviſe; That there be no Co-action on the Teſtator, but that his Will be free and independent, without fear, force, or flattery, or other Siniſter Contrivances; That the Deviſe be made in that due manner and form as it ought to be; That the thing Deviſed be Deviſed upon none other then (if any) Lawful Terms and Conditions; That the words of the Deviſe be ſuch as do clearly declare the Mind and Intention of the Deviſor; That Probate be made of the Teſtament, after the Deviſors death; fPerk. Sect. 406.And in caſe it be of Land, then that the Deviſor be ſolely ſeized thereof in a Fee-ſimple Eſtate, and not joyntly with another, and that the Teſtament, wherein ſuch Deviſe of Land is, be made in writing.
3. To find out the Teſtators mind and meaning, which is the very Index of the Teſtament, the time of making thereof is regularly more conſiderable in point of Legacies, then the Time of the Teſtators death, becauſe the preſumption of Law is, That his mind is not altered, gL. tertia & l. eum qui ff. de Probat.unleſs it may otherwiſe appear by ſufficient Evidence. Therefore the Teſtators words are ſpecially to be referr'd to the Time when the Teſtament was made, hL. ſi ita legatnm. de aut. & arg.and moſt eſpecially if the Teſtators words be generall words. iBart. in l. ult. §. 1. de Leg. 2.So that if a Father bequeath to his Son, who is a Student, all his Books, and after buy other Books, thoſe other paſs not by that Legacy. kBald. Conſ. 284. nu. 1. vol 2Or if he bequeath 10 l. to his Pariſh Church, and after remove his Habitation into another Pariſh where he dyes, the 10 l. is due to the Pariſh wherein he lived at the time of making his Teſtament, and not to the Pariſh wherein he dyed. lRom. in Auth Similit. E. nu. 93. &C. ad Leg. Falcis l. Si cognatis.Yet if the Teſtator bequeath any thing to his Kindred (in ſuch general words) the Kindred which were at the time when the Teſtament was made, are not ſo included as to exclude ſuch as were his Kindred at the time of his death. mDict. l. ſi cognatis.Alſo if a Teſtator bequeath his Moveables, ſuch only are underſtood to be bequeathed as were the Teſtators when he made his Teſtament. nDict. l. ſi ita. De aur. & arg. & Raph. Fulg. Conſ. 99. nu. …Likewiſe if the Teſtator Bequeath Releaſes to all his Debtors, there are no more comprehended in that Legacy then were his Debtors when he made his Teſtament, oAurel §. 1. de Liber. Leg & Fulg. in Conſ. 37.Or if he give to a certain Hoſpital all his Moneys in the Bank, or in Bankers hands after his Debts paid, and there be at that time a 1000 l. in their hands over and above his Debts, and he lives ſo long that at his death there is 3000 l. in their hands above his Debts: In this caſe there is only one 1000 l. due by that Legacy to the Hoſpital, becauſe the Legacy is to be computed according to what he had in their hands at the time of making his Will, and not according to what he had at the time of his deceaſe. pPaul. Caſtr. in l. cum ſtipulamur. nu. 3. de verb. obl. & Jaſ. in l. ſi quis § illud nu 10. qd. quiſ que jur.Alſo if he Bequeath all his Moveables, having at that time Fruits of the Earth not ſeperated from the Soyl, which yet afterwards and before his death are ſeperated: In ſuch caſe ſuch Moveables paſs not by that Bequeſt; becauſe they were not Moveables at the time of making the Teſtament: qAlciat. Conſ 182. lib. 9.But this is not uncontrovertable; for in this point there are ſome of the Learned of another Opinion. rPaul. Caſtr. Conſ. 132. lib. 1 & Dec. Conſ. 472. nu. 5.Or if a Man Bequeath ſo many pieces of ſuch a certain Coyn, which afterwards doth riſe or fall in its value; The Legacy in that caſe ſhall be eſtimated as the ſaid Coyn was in value at the time when the Teſtament was made, not at more nor leſs. sOldr. Conſ. 31. l. uxorem §. teſtam. & Bald. de Leg. 3. & l. medico in prin. de aur. & arg.Alſo if a Houſe with all things therein be Bequeathed, ſuch things as the Teſtator afterwards brings into that Houſe are not within that Legacie. tBened. Cap. Conſ. 45. nu. 5. & Cor. Conſ. 14. nu. 14. &. Pariſ. Conſ. 80. nu. 41. Vol. 2.And here obſerve, That what has been ſaid as to the Time of making the Teſtament, holds True likewiſe, and ſo is to be underſtood, as to the time of making a Codicil; the words whereof are chiefly to be referr'd to the time of the making thereof: Inſomuch that in caſe by way of Codicil a man Bequeath all his wearing Apparel to his Wife, and after ſome Tract of Time makes a Will and dyes, no more Apparel doth paſs by that Codicil (ſuppoſing it not contradicted by the Will) then the Teſtator had when he made that Codicil. uL. quae dam ff. de. ju Codicil.And yet notwithſtanding all this which hath been ſaid, that the Time of the making of the Teſtament is chiefly and ſpecially to be referr'd to in the due Conſtruction of Legacies, yet this is to be underſtood only when the words of the Teſtator ſpeak of the time Paſt or Preſent; wBart. in l. his verb. in prin. de Leg. 5.Not when he ſpeaks of the time to come by words of the Future Tenſe; xL. filiam de aur. & arg.Nor when he ſpeaks by ſuch words of the Preſent Tenſe as cannot take effect but for the future. yDict. l. filiam & Rol. Val. Conſ. 39. nu. 12. Vol. 4.Alſo when the Legacy is Univerſal under ſome Name Appellative, and in its Nature Collective, as Herd, Flock, and the like; ſuch a Legacie admitting of Increaſe and Decreaſe, the Time (in that caſe) of the Teſtators death is more to be inſpected and conſidered then the Time when he made the Teſtament. zL peculium in prin. de. leg. 2. & l. grege. de leg. 1.So likewiſe, if the Teſtator willeth that ſuch a one ſhall diſpoſe of the Profits of his Eſtate, it ſhall be underſtood of ſuch Profits thereof as were at the Time of his death; becauſe the word [Profits] is univerſal, and therefore not to be reſtrained only to the time of the making of the Teſtament. aAlciat. Conſ. 173, nu. 4. lib. 9.Or if he Bequeath his Money in the Bank, the Profits thereof at the time of his death ſhall paſs by this Legacy, bJaſ. in. l. cum ſtipulamur. nu. 3. ad fin. de verb. oblig.which (if you obſerve it) differs from that Caſe of money in the Bank aboveſaid; alſo if the thing Bequeathed be ſuch as is in ordinary uſe, and by uſing is conſumed, and another of like kind had inſtead thereof, That other ſhall paſs by this Legacy, for in ſuch caſe not the Time of making the Teſtament, but the Time of the Teſtators death ſhall be conſidered. cBart. in l. ſi ita. nu. 8. de aur. & arg. in l. quid haeredem nu. 2. de. Trit. Legat.Nor is the Time of the Teſtaments making ſo conſiderable when the Legacy is Conditional, for then the performance of the Condition will fall under chiefeſt Conſideration. dL▪ mea res & l. eum qui. Gloſ. de cond. & demon.Alſo the Time of the Teſtators death, when it moſt tends to the upholding of the Teſtament, is more conſiderable then the Time of the making thereof. eBart. in l, placet. nu. 2 de Lib. & poſth.And therefore, though the words in the Teſtament be of the Time Paſt or Preſent, yet in that the Will of the Teſtator holds free and good even to his laſt-Breath: They ſhall alſo Refer to the Future in thoſe things that depend on the meer Will of the Teſtator, fL. 3. in fin. de Adim.And if he Bequeath indefinitely his Corn, it ſhall be underſtood all ſuch as he hath at the time of his death. gBald in Rub. C. de Verb. ſign. nu. 4.Obſerve finally, That if the Teſtators words in a Bequeſt be doubtful whether they Refer to the Time Paſt, or to the Time to Come, they ſhall be h] B…. in l. ſi ita legatum. de Cond. & dem.underſtood to relate unto the time that is to come.
4. Where a Deviſe is made of Goods, if the Executor will not Deliver the ſame to the Deviſee, he hath no Remedy by the Common Law; iTerms of Law. verb. Deviſe. & Off. Exec. cap. 19. in prin.but muſt have recourſe againſt him by way of Citation out of the Eccleſiaſtical Court to appear before the Ordinary, to ſhew cauſe why he performeth not the Teſtators Will; for the Deviſee may not take the Legacy and ſerve himſelf, but it muſt be Delivered to him by the Executor. kIbid.So that the Legatary hath no Remedy by the Common Law for any Legacy of Goods to him bequeathed, except (as that Law ſayes) in caſe where ſome particular thing (as the Teſtators Horſe, Signet, or the like) is bequeathed: lBroo. tit. Deviſe. nu. 3. 6. 14. 27. 30.Or if the Teſtator willeth that his Executors ſhall ſell his Land, and pay ſuch and ſuch Legacies out of the Proceed of the Sale thereof, in ſuch caſe the Legatories may Sue at the Common Law for the ſame. But if the mMich. 5. P. & M. Dyer. ſo 151, 152. & Mich. 29. & 30. Eliz. Co. B. Germyes caſe. & Hob. Rep. ſo. 265.Legacies be Bequeathed to be paid out of Leaſes, and not out of Fee-ſimple Lands. then the Legatary may likewiſe Sue in the Eccleſiaſtical Court for the ſame; nBrown Rep. 1. part ſo. 34.For though Legacies are to be ſued for in that Court only, yet the Ordinary cannot take Cognizance of Freehold deviſed, oPerk. Sect. 576. 579. & Dr. & Stu. lib. 2. cap. 55. & Cowells Inſt. p. 146And whereas it is ſaid, That the Deviſee may not take the Legacy and ſerve himſelf; but that it muſt be Delivered to him by the Executor, yet the Law is otherwiſe in Caſe Lands, or any Rents, or other Profit to be taken out of Lands, be Deviſed to a Man in Fee-ſimple, Fee-tayle, for Life, or Years; for in theſe Caſes the Deviſee may enter into, and take the thing Deviſed without the Executors leave for ſo doing.pPerk. Sect. 576, 577, &c. Coke ſup. Lit. III.