The Orphans Legacy, Part 3 · Chapter 22
CHAP. XXII. Law-Caſes touching Money Bequeathed by the Teſtator.
1. IN the laſt precedent Chapter, it hath been Examined how far Money may be compriſed under the notion of Goods Moveable or Immoveable bequeathed; It follows now, that for the clearer illuſtration of this Deſirable ſubject, we inſert certain Caſes in the Law touching the ſame; And becauſe when Money is bequeathed, it often happens that a more than ordinary power is given to, or Latitude left in the Executor by the Teſtator, It is requiſite in the firſt place to ſee how far a Legacy of Money left to the will of an Executor is good or not; which cannot well be Reſolved without conſidering the ſeveral ways of diſpoſal thereof; as thus, viz.
2. The Teſtator ſaith [I would have 10 l. given to A. B. if my Executors mind were not againſt it] In this caſe A. B. cannot have the 10 l. unleſs he can firſt obtain the Executors conſent for it; becauſe a Legacy in that manner given is tacitely Conditional, and firſt requires the Executors Approbation even by the Teſtators mind and intention for the performance thereof; But if once the Executor gives his conſent, he muſt then pay the 10 l. and cannot after recede from it to the prejudice of the Legatary. agloſs. in §. ſic fidei commiſſum. l. Fidei commiſſa. de Legat. 3.Likewiſe, if the Teſtator ſaith, [I give 10 l. to A. B. when my Executor will, or when my Executor pleaſe.] In this caſe as in the former, the Legacy is not due till the Executor thinks fit, but muſt wait his pleaſure, and be in a dilatory Expectancy as long as he lives, or ſo long as he doth not ſay he will pay it; But if once he declare that he will pay it, and after dyes before he doth pay it, his Executor is obliged to make it good; Contrariwiſe if the Legatary dye before the Teſtators Executor declares his conſent to the payment thereof, for then it doth not accrue to the Legataries Executor, becauſe it is Conditional till the Executor declares his conſent to pay it, and ſuch a Condition to be performed at the pleaſure of another, as that the Legacy cannot come to the Legataries Executor before the Accompliſhment thereof.bGloſs. ibid.
3. If the Teſtator ſaith, [I give A. B. 10 l. if my Executor will] In that caſe the Legacy is void, becauſe there the Teſtator ſubordinates his Will to the Executors, makes his Executors Will Abſolute, and his own Inſignificant. But in caſe he ſaith after this manner, viz. [If my Executor think fit, I give A. B. 10 l. Or if my Executor conceive it expedient, let A. B. have 10 l.] In theſe caſes the Legacy is good, becauſe here the Teſtator ſeems not to leave it wholly to the meer will and pleaſure of his Executor, but as it were to the judgment of any honeſt or indifferent perſon, or (as the Law phraſes it) arbitrio boni viri. The Law is the ſame, in caſe the Teſtator ſaith, [if my Executor ſee cauſe for it, or it ſeem reaſonable to him. Let A. B. have 10 l. or I would have A. B. to be 10 l. the better for me.] For although a Legacy cannot be left to the meer will and pleaſure of the Executor, yet to his juſt and reaſonable will it may; for ſo it is left more to Reaſon than to his Will.
4. But what if the Teſtator ſaith [I give 10 l. to A. B. if he ſhall deſerve it of my Executor] In that caſe the Legacy is due in caſe the Legatary ſhall carry it no otherwiſe towards the Executor than as any honeſt man would or might do in the like caſe; or no otherwiſe, than as any honeſt and indifferent perſon might or would be well ſatisfied therewith. Likewiſe if the Teſtator ſaith, [I give A. B. 10 l. if he hath not offended my Executor] the Legacy is due, if it appears that A. B. hath behaved himſelf towards the Executor no otherwiſe than what would ſatisfie any reaſonable and impartial man. In a word, when it is left wholly to the meer free and arbitrary will and pleaſure of the Executor, the Legacy is void; but when it is left to his will, only as it ſhall ſeem meet, juſt, and equal to him, it is good; for if in it ſelf it be juſt and equal, the Executor may not interpret it otherwiſe.gGloſs. ibid. lit. o. verb. arbitrium.
5. If a man Deviſe all his La… to A. B. and his Heirs, excepting Twenty pounds for Ten years, which he willeth ſhall be employ'd for his Children; This is a good Deviſe of the Sum of Twenty pounds a year for Ten years. hTrin. 9 Jac. in B. R.Or if one bequeath 20 l. to the Children of A. B. who then hath three Children more or leſs at the time of making ſuch Bequeſt; and after, but before the Teſtators death, he happen to have other Children; In this caſe thoſe other Children he hath afterwards, ſhall have no part of the ſaid Legacy, but the Children born at the time of making the Teſtament ſhall have it all. The Reaſon is, becauſe in this caſe it is preſumed the Teſtators intention did not extend to any not in rerum natura, when there were Children indeed, and at the ſame time in being.
6. The Teſtator ſaith [I give 100 l. to my four Neighbours, A. B. C. and D. Provided they beſtow 10 l. in a Tombſtone to be ſet on my Grave] Although B. ſhould refuſe to joyn with the reſt therein, yet A. C. and D. ſhall have not only the…r reſpective proportion of the 100 l. but alſo that part that ſhould have come to B. in caſe he had performed the Condition. Or, if he ſay, [I give 100 l. to A. and ſuch of my Three Children as ſhall come to my Funeral] and dyes; neither of his Children are at his Funeral; In this Caſe A. ſhall have the whole 100 l. becauſe the Legacy is in the Conjunctive; were it in the Diſjunctive he could have but 50 l.iBart. in l. ſi tibi & ei. de Legat. 3. & gloſ. in dict. L. & C. de Cad. toll. l. unica. §. ubi autem. & §. ſi non. Conditio uni Conjunctorum infecta, in ejus perſona deficiens, non minuit Legatum alterius, imo augetur per jus adcreſcendi.
7. Suppoſe the Teſtator ſaith, I give 50 l. to A. B. And more than that 100 l. to C. D. In this caſe C. D. ſhall have an entire 100 l. but no more. kGloſ. in l. Si ſervus Legatus. §. Si ita ſcriptum. de Legatis. 3.Poſſibly the tranſpoſition of the words may alter the Caſe, and make the Legacy worth 150 l. to C. D. As if he ſhould ſay [I give to A. B. 50 l. and 100 l. more than that to C. D.] But ſuppoſe he ſhould ſay [I give 100 l. to C. D. more than I have given to A. B.] when indeed he had given nothing at all to A. B. In that caſe the Legacy of 100 l. is good to C. D. notwithſtanding that falſe Implication to A. B.lGloſs. ibid.
8. A. B. makes C. D. his Executor, gives in his Will 1000 l. to J. G. and therein ſayes, I deſire that J. G. will pay the ſaid 1000 l. to the Colledge of W. and dyes. After the ſaid Colledge is diſſolved, and before J. G. had received the ſaid 1000 l. from the Executor of A. B. the Queſtion is, whether J. G. ſhall now recover the 1000 l. from the ſaid Executor (the Colledge to whom he was to pay it, being now diſſolved) or whether it ſhall remain in the Executor? It is reſolved, that in caſe there was no fault in J. G. why the 1000 l. was not paid to the Colledge before its diſſolution, and the payment prevented for no other Reaſon but becauſe of the ſaid Diſſolution; J. G. ſhall in ſuch caſe recover the 1000 l. from the ſaid Executor.mGloſs. in l. pater filium. §. fidei commiſit. de Leg. 3.
9. If a Teſtator bequeath 1… l. to A. B. and C. D. And after one of them appears incapable of taking by the Legacy, the other ſhall have only 50 l. and not the whole 100 l. nl. Si Titio. de Legat. 2. & Gloſs. ibid.Yet there are, and they of the moſt Learned, who hold, That if one of the Legataries be incapable, his proportion of the Legacy ſhall accrue to his Collegatary, oGloſs. min. in l. qui duos reos. de Leg. 2. & Bald. in l. …am quam. in fin. C. de Fidei commiſſis.as is evident by the former Caſe of the Tomb-ſtone; and never fails where the Legacy is in the Conjunctive, by the Law of Accreſſion or jure Adereſcendi.
10. A. B. pawned a Jewel with C. D. for 100 l. then in his Will makes his Son his Executor, and orders that C. D. ſhould ſell the Jewel, and out of the Proceed thereof pay himſelf the 100 l. and reſtore the overplus of the value to his Daughter. Whether may the Daughter compel C. D. to ſell the Jewel, and reſtore her the overplus? It is held in the Negative. But ſhe may compel her Brother, who is her Fathers Executor, to Commence his Action at Law againſt C. D. in order to the Premiſes. pl. Si ſervus legatus. §. qui Margarita. & gloſs. ibid. de Legat. 3.Or if the Teſtator ſay, I will that C. D. receive 100 l. and reſtore the Jewel, to my Daughter (not expreſſing of whom he ſhall receive the 100 l.) In that caſe the Executor is lyable for the 100 l.qGloſs. ibid.
11. Suppoſe a Teſtator in his Will ſaith, Whoever ſhall be my Executor for the Goods and Chattels I have in Ireland, ſhall give 10 l. to A. B. in Dublin; the Teſtator makes three Executors for his ſaid Eſtate in Ireland, and dyes. The Queſtion is, whether every of theſe Co-executors (each of them having Adminiſter'd to the ſaid Iriſh Eſtate, and each of them having a part thereof in his poſſeſſion) is obliged to pay 10 l. to A. B? And whether that univerſal word in the Legacy [whoever] hath that force in it as to make each of them obliged in the caſe for 10 l. each. It is Reſolved A. B. ſhall have but 10 l. in all to be paid by, from, and among all the three Executors. rl. Si quis in ſundi. gloſs. ib. de Legat. 1.The Reaſon is Evident becauſe they all make but one Repreſentative, being diſtinct rather in their perſons, than in their Office.
12. A Teſtator having made A. B. and C. D. his Executors, in his Will faith, That either A. B. ſhall pay 10 l. to J. G. in lieu of a Legacy, or C. D. alone ſhall be his Executor; and dyes. They both Adminiſter. In this caſe J. G. may ſue both of them for the whole Legacy, and C. D. is as far forth lyable to the payment thereof as A. B.sl. Si ex toto. De Legat. 1.
13. A Teſtator, whoſe Wife is big with Child, ſaith, I will that if there be any Daughter born to me, my Executor ſhall pay her 100 l. and dyes. After the Wife is delivered of Twins, viz. Two Daughters. In this caſe the Executor ſhall pay 100 l. to each, unleſs it appear the Teſtator intended the contrary. tGloſs. in l. filiabus. de Legat. 2.In like manner, if a man bequeaths 1000 l. to his Daughters (without other words) and dyes, and his Wife after his death be within due time delivered of another Daughter, that Poſthume Daughter ſhall claim proportionably with the others in the 1000 l. if the Teſtator by his Will made no other proviſion for her.uDict. l. filiabus.
14. A Teſtator bequeaths in this manner, viz. I give to A. B. 300 l. And I will that my Executors do pay 100 l. thereof out of the Arrears of Rent due to me out of ſuch Lands, naming them, the other 200 l. out of ſuch and ſuch Goods to be ſold; after the Teſtator receives in his life time the ſaid Arrears of Rent, and Converts them to other uſes, and dyes without altering his Will. In this caſe A. B. ſhall notwithſtanding have the whole 300 l. The Reaſons in Law are, (1) Becauſe it was no Condition but only a Demonſtration that had relation to the Legacy bequeathed. (2) Becauſe a bare deſignation how or whence a Legacy may be paid, ſet after a Legacy given, makes it not Conditional.wl. quidam. & gloſs. ibid. de Legat. 1. & Bartol. in dict. L.
15. Suppoſe a Teſtator ſaith, I bequeath ſome Money for the repairing of my Pariſh Church (not expreſſing how much) In this caſe the Legacy in favour of Pious uſes, is good, though it be ſomewhat uncertain; And his Executor ſhall expend ſo much Money as will ſuffice for the repairing thereof, unleſs it require a vaſt Sum, at leaſt much too great for the Teſtators Eſtate conveniently to bear; In which caſe it ſhall be preſumed the Teſtator intended no more than his Eſtate would conveniently admit; and the Ordinary in ſuch caſe ſhall moderate the Sum with reſpect had to the Teſtators Eſtate.xl. quidam. & gloſs. ibid. de Legat. 2.
16. A man poſſeſſed of Goods and Chattels in England and Ireland, makes his laſt Will and Teſtament, and therein his Son, a Minor, his ſole Executor, and A. B. his Guardian, and the Overſeer of his ſaid Will, to whom he therein bequeaths 100 l. and dyes. A. B. willing to have himſelf excuſed from the ſaid Guardianſhip in part, refuſes it as to the Eſtate in Ireland. In this caſe he ſhall loſe the whole Legacy of 100 l. becauſe the Law is, That a Legatary refuſing the Office or Duty impoſed on him by the Will, though but in part, forfeits his Legacy in the whole.yl. etiam ſi. de legat. 1. & gloſs. ibid. & Bart. in dict. L.
17. A Teſtator makes his laſt Will and Teſtament, and therein appoints A. B. and C. D. his Executors; after doth annex a Codicil to his Will, and therein ſaith, I will that A. B. one of my Executors ſhall give J. G. 10 l. when I ſhall have given him the ſaid A. B. 100 l. And dyes without bequeathing him any ſuch 100 l. The Queſtions are, whether A. B. by reaſon of ſuch words ſpoken by the Teſtator may have a right to that 100 l? And whether he be obliged to pay 10 l. to J. G? They are both anſwered in the Negative. zGloſs. in l. Titia. de Legat. 2.The reaſon in Law is, becauſe words meerly Enunciative, relating to ſomething that ſhould be done in time paſt or to come, without expreſſing the very thing it ſelf, ſignifie nothing as to a ſufficient diſpoſal of any thing, which is not deduceable from any ſuch bare Enunciations.aBart. in dict. L.
18. If the Teſtator ſaith, I give thee 100 l. when thou ſhalt Marry, and thou art Married at that time when the Teſtator ſo made his Teſtament, and demandeſt the 100 l. upon the Teſtators death. In this caſe thou ſhalt have the 100 l. if the Teſtator at the giving thereof were ignorant of thy being then Married. But if he then knew thereof, thou ſhalt not have it till thou art Married a ſecond time.bl. ſi ita. §. ſi pater. & gloſs. ib. de Legat. 2.
19. If in two ſeveral and diſtinct Writings or Inſtruments, bearing one and the ſame date, the ſame laſt Will and Teſtament be found written verbatim, ſave that in the one there is mention made of a leſſer Legacy to one, than there is to him in the other; the leſſer only is due. As thus; A. B. going beyond Sea makes his laſt Will and Teſtament, the Tenor of which Will is exemplified or duplicated in two diſtinct Papers, as if the one was only a Duplicate of the other; only in the one of theſe is found a Legacy of 100 l. to C. D. But in the other a Legacy only of 50 l. to him; whereof the Teſtator takes one with him to Sea, the other he leaves at home behind him. In this caſe C. D. ought not to have more than one of theſe Legacies, and that the leſſer alſo, viz. That of the 50 l. only.cl. Sempronius. & gloſs. ib. de Legat. 2.
20. A Teſtator being poſſeſſed of 800 l. value in Goods, appoints A. B. and C. D. his Executors, and bequeaths 400 l. to A. B. And after ſayes, whoever ſhall be my Executor, ſhall pay 200 l. to J. G. and gives ſeveral other Legacies to the full value of his 800 l. Eſtate, and dyes. C. D. refuſes the Executorſhip. In this caſe A. B. is obliged to pay full 600 l. to the Legataries, though 400 l. of the 800 l. were firſt given to himſelf. dl. Si Titio. & gloſs. ibid. de Legat. 2.Which differs from the Law as now practiſed, That after Debts paid a Legatary-Executor may firſt ſatisfie himſelf.
21. Any words, though in themſelves of a defective ſignification, yet if ſuch as whence the Teſtators mind or meaning is rationally deduceable and conſequentially Colligeable, are ſufficient to uphold a Legacy; and therefore if a Teſtator willing to bequeath 100 l. to A. B. doth but ſay in his laſt Will and Teſtament, I deſire that A. B. would be contented with 100 l. Or that A. B. would be ſatisfied with 100 l. or the like; It is a good Legacy to him of 100 l.el. Peto Luci. & gloſs. ibid. de Legat. 2.
22. An imperfect Speech by the Teſtator, which in it ſelf leaves the ſenſe incompleat, either ſpoken or written by the Teſtator in his laſt Will and Teſtament, is legally reduceable to a good Conſtruction for the upholding of a Legacy, if the words precedent or ſubſequent hold good congruity therewith; as thus, A man in his laſt Will and Teſtament inter alia ſayes, [To my Son William 100 l.] In the words precedent he had ſaid [I leave my Dwelling-Houſe to my Daughter Anne] Or in the words ſubſequent he ſayes [I give 10 l. to my Brother George] In ſuch caſe albeit the words [I Bequeath, or I Give, or I Leave] or the like be omitted in that imperfect Speech relating to his Son William, yet in regard they are joyned with the words precedent or ſubſequent, it ſhall in conſtruction of Law be underſtood as if they were joyned alſo to the words relating to his Son William, by reaſon of its congruity therewith, and thereby making the ſenſe perfect. Otherwiſe if it were incongruous; As ſuppoſe the Teſtator had ſaid [That my Son William 100 l. or from my Son William 100 l.] And in the words precedent or ſubſequent he had ſaid as formerly; In ſuch caſe there would be no congruity with the ſaid laſt imperfect Speech relating to his Son William, nor can they be joyned thereto without plain incongruity; and therefore in that caſe the Rule aforeſaid would not hold.fl. cum pater. gloſs. in § 22. cum imperſecta. de Leg. 2.
23. A Teſtator makes three Executors, and appoints one of them by Name to take care of his Funeral, for which purpoſe he doth order him to receive 100 l. before hand. The Teſtator being dead, he receives the 100 l. of his Co-executors, but doth not disburſe above 60 l. about the Funeral. The Queſtion is, whether he ſhall retain the other 40 l. to his own uſe. The Anſwer is Negative, for that it belongs to all the Executors alike.gl. Lucius Titius. §. A te peto. & gloſ. ibid. de Legat. 2.
24. If a Sum of Money be bequeathed to certain perſons, on condition of ſomething to be performed, the failure of one of them ſhall not prejudice the Legacy of another; as thus, viz. The Teſtator makes his three Sons his Executors, and in his Will ſaith [I give to my Neighbour A. B. 100 l. and to ſuch of my Sons as ſhall come to my Funeral] and dyes. Neither of his Sons are at his Funeral. The Queſtion is, whether A. B. ſhall have the whole 100 l. It is anſwered in the Affirmative, and that there is nothing in this caſe to diminiſh any part of the Legacy to A B. hC. de Cad. tol. l. unica. §. ubi autem. & §. ſi vero non omnes. l. ſi tibi & ci. Et gloſs. ibid. de Legat. 3.But if the words had been [I give to A. B. and ſuch of my Sons as come to my Funeral 100 l.] In that caſe A. B. ſhould have only 50 l. The reaſon of the difference is evident; for in the former caſe the Legacy is given Disjunctively, but not ſo in the latter. As hath been formerly ſtated and Reſolved.
25. Suppoſe a Teſtator in his Will ſaith [I give 10 l. to A. B. And if he chance to looſe it, I give him 10 l. more] In this ſhort caſe are three points. (1) Whether the ſecond Legacy be good? (2) Whether the Executor may require caution of the Legatary, That he ſhall ſo ſecure the firſt 10 l. that he may not be lyable to pay him a ſecond 10 l. (3) Whether in caſe A. B. loſe the 10 l. twice, or thrice, or oftner, the Executor be ſtill obliged to pay him 10 l. more. The firſt of theſe points hath its ſolution by anſwering the ſecond and third. Now the Law doth not warrant the Executor to require ſuch caution in this caſe from the Legatary; to whom, if he ſhould loſe the 10 l. more than once, the Executor is not obliged to pay a third 10 l. which reſolves the firſt point in the Affirmative.iFidei commiſſa. §. ſi quis decem. & gloſs. mag. & min. ibid.
26. A man dying inteſtate, A. B. pretended as if he would take out Letters of Adminiſtrations of his Goods; the Inteſtate dyed indebted 100 l. to C. D. So that A. B. might legally have been ſued for it, if he had Adminiſtred to the Inteſtates Goods as he pretended he would. C. D. makes his Will, and therein J. G. his Executor, and gives 100 l. to the ſaid A. B. ſaying withall that his Executor might eaſily ſatisfie that 100 l. to the ſaid A. B. for that he the ſaid A. B. owed him the ſaid C. D. the Teſtator 100 l. by reaſon of his Adminiſtration to the ſaid Inteſtate. C. D. dyes. After A. B. would not Adminiſter to the ſaid Inteſtates Eſtate as he pretended, but demanded the 100 l. Legacy given him by C. D. The Queſtion is, whether he ought to have it? It is reſolved in the Negative, becauſe it ſeems to contradict the main intention of C. D. the Teſtator, who gave him that 100 l. as real Adminiſtrator to the ſaid Inteſtate who owed C. D. 100 l. But after appearing no other than a Pretender to the ſaid Adminiſtration, the Law for the reaſon aforeſaid excludes him from being a Reall Legatary to the ſaid 100 l.kdict. l. fidei commiſſa. §. item. de Legat. 3.
27. A Teſtator ſaith in his Will, That his Executor ſhall give his Lands ſcituate in S. to A. B. and to C. D. more than this 10 l. The Queſtion is, of what import the words [more than this] are in the Legacy of 10 l. to C. D? It is held, That by reaſon of the words C. D. ſhall have the whole 10 l. and one Moiety of the ſaid Lands Deviſed in manner aforeſaid.ll. ſi Sic locutus. & gloſs. ibid. de Leg. 3.
28. A Legacy of 100 l. is given to A. B. on this Condition that he buy ſuch a Houſe of C. D. which is worth 50 l. and give it to J. G. The Legatary A. B. offers 50 l. for the Houſe to C. D. He will not ſell it him under 100 l. Q. whether A. B. is obliged to give the 100 l. for the Houſe, that ſo he may deliver it to J. G. according to the Teſtators will and meaning? It is reſolved in the Negative; But he ſhall give the Teſtators value and eſtimate thereof, viz. 50 l. to J. G.mGloſs. in l. non dubium. de Legat. 3.
29. Suppoſe the Teſtator give thee 100 l. That therewith thou mayeſt do ſomething for a third perſon, ſpecifying the perſon and the thing which the Teſtator would have done. Thou demandeſt the 100 l. of the Executor; he refuſeth to pay it thee unleſs thou give ſecurity to do therewith what the Teſtator required. The refuſal of payment by the Executor is good; thou ſhalt not have the 100 l. till thou give good ſecurity to do therewith as by the Teſtator is enjoyn'd.nl. ſi tibi Legatum. & gloſs. ibid. de Leg. 3.
30. Suppoſe a Teſtator gives 500 l. to one, 400 l. to another, and 300 l. to a third. And after ſaith in his Will That A. B. ſhall have as much as one of the Legataries. The Queſtion is, what A. B. ſhall have? Some have ſuppoſed, that he ought to have 500 l. becauſe in the greater the leſs is included; but the Law which prevails in ſuch caſe is otherwiſe; he ſhall have only 300 l. and no more, becauſe the Executor being burdened with ſuch Legacies, ought to have it in his power to give which proportion he thinks fit; And becauſe it is a Rule in Law, That in all doubtful caſes relating to the quantity of a Legacy, the leaſt is to be underſtood.ol. qui concubinam. §. cum ita legatum. & gloſs. ib. de Legat. 3.
31. A. B. makes his laſt Will and Teſtament, wherein he diſinherits his Son, and makes a Stranger his ſole Executor, gives divers Legacies, and after in his Will ſayes, That in caſe his Will ſhould hereafter happen by any means to be ſo invalidated as to be pronounced Judicially null and void, that thereby he ſhould happen to dye Inteſtate, That then however his full purpoſe, mind and reſolution is, That from ſuch Adminiſtrator ab. Inteſtato (whoever it ſhould happen to be) ſhall be given 100 l. to C. and 200 l. to D. and dyes. After his ſaid Son doth commence his Action and gets Judgment againſt the Will, which is Judicially pronounced null and void; the Son obtains Letters of Adminiſtration of his Fathers Eſtate ab Inteſtato. The Queſtion is, whether the Son be obliged to pay the Legacies left by his now Inteſtate Father? It is Reſolved in the Negative; for that not any thing now is vallid (in ſuch caſe) which related to his Fathers mind or meaning in the ſaid pretended Will as aforeſaid.pL. nec Fidei commiſſa. & gloſs. ibid. de Legat. 3.
32. To conclude. A Teſtator writ his Teſtament with his own hand, and therein ſaid, That in regard he had found A. B. a very faithful Servant to him, and that he had done him many eminent Services, he deſired to leave him not by way of a Legacy, but by way of Gratuity 100 l. which he would have his Executor to pay him as a reward of his good Services, and dyed, Now in truth A. B. was ſuch a perſon as by Law was incapable of taking by a Deviſe. The Queſtion is, whether A. B. may demand the 100 l. not as a Legacy, but as a reward for his Services aforeſaid? It is held in the Negative; becauſe it will be preſumed it was left him in that manner in fraudem legis, on purpoſe to defraud the Law, which rendered him by reaſon of ſome legal Impediments incapable of taking by a Teſtament; And for that a Teſtators Teſtimentary Confeſſion of his being obliged or in debt to a perſon in himſelf incapable, hath no operation in the Law, qCum quis. §. Titia. & gloſs. ibid. de Legat. 3.other than to raiſe the Preſumption ſo much the ſtronger, that it was made only in fraudem legis, ſpecially when ſuch Confeſſion is voluntarily made in favour of a perſon incapable.rGloſs. min. ibid.