The Orphans Legacy, Part 3 · Chapter 24
CHAP. XXIV. Touching Election in point of Legacies; To whom the Election of a Legacy, expreſs'd with too much Generality or Dubiety, belongs, whether to the Executor or to the Legatary; with certain Caſes in the Law touching the ſame.
1. AS preliminary to this, it is requiſite to know, That a Legacy may be too general, or of ſomething too generally expreſs'd, and that in a threefold reſpect; As (1) when it refers to ſomething that is underſtood by the Notion of Genus generaliſſimum, as when the Teſtator ſaith [I Bequeath ſomething to A. B.] In this caſe the Legacy is vain and Fruitleſs, becauſe the Executor is diſcharged by giving any thing, or the leaſt of any thing; Or (2) when it refers to ſomething that is (if I may ſo ſay) ſub-alternatively too general, that is, ſuch a general as is made up of innumerable diſtinct Specificals; as if the Teſtator ſhould ſay [I bequeath a living Creature to A. B.] In this caſe alſo the Legacy is void, by reaſon as well of its ſupergenerality as uncertainty; Or (3) when it refers to ſomething leſs general, yet comprehenſive of many Individuals, for kind the ſame, but different in value or eſtimation; as if the Teſtator ſhould ſay [I bequeath a Horſe to A. B.] Or, I bequeath a Ship to A. B.] In this caſe it muſt be diſtinguiſhed, whether ſuch thing hath its Compoſition terminated by Nature, as Oxe, Horſe, &c. Or by the Art of Man, as Houſe, Coach, &c. In the former of theſe Caſes the Legacy is good, and the Executor (if there be Aſſets) muſt procure it for the Legatary, in caſe the Teſtator had it not of his own at the time of his death. aGomez. Reſol. tom. 1. c. 12. nu. 32. & to. 1. c. 11. nu. 8 & Graſs. l. legatum. q. 61. & Ang. Matheac. lib. 2. c. 21. nu. 2. de Legat.But in the latter Caſe, the Legacy is not good, unleſs the Teſtator were a Proprietor thereof at the time of his Deceaſe.bGomez. ib. & Vaſq. de Succeſ. Progr. lib. 3 §. 27. nu. 35. & Graſ. dict. q. 61. & l. Si Domus. ff. de Legat. 1. & Cujae. ad L. Si ſervus §. cum homo. ff. de Legat. 1.
2) Now the Queſtion is, when the Teſtator doth Deviſe in ſuch a general manner as is before deſcribed to be Deviſable, who ſhall have the Election, whether the Executor or the Legatary? The firſt and Common anſwer is, That he ſhall have it, to whom the Teſtator by his Will in the manner of his bequeathing directs the Executative power of the Legacy, in caſe he hath not otherwiſe determined expreſly the Election. For Illuſtration; The Teſtator ſaith, [I will that my Executor ſhall give A. B. a Horſe] There the Executor Elects. Or thus, [I will that A. B. ſhall have a Horſe] there the Legatary Elects. But if the Teſtator direct the Executative power to neither of them, than the Legatary ſhall Elect, if the general Legacy be determined (as aforeſaid) by Nature, and it be found among the Teſtators Goods or Chattels; otherwiſe, the Executor Elects, as when the general Legacy is determined by ſome Act of Man, cGraſs. dict. l. legatum. quaeſt. 62.for inſtance, in divers Houſes which the Teſtator hath in the ſame Corporation, and he Deviſeth one of them, but deſcribes not which; otherwiſe if in divers Corporations; for then it ſhall be underſtood of the Houſe in that Corporation where himſelf lived and dyed.dGraſs. ibid.
3. For the more tranſparent inſpection into this matter, it is requiſite likewiſe to be known, and what indeed is plainly inferential from the Premiſes, that there may be and frequently is ſuch uncertainty in Legacies as doth not deſtroy them; This election, whereof we now ſpeak, conſiſts in ſuch uncertainties; But withall there are alſo ſuch Obſcurities, Dubieties, and Ambiguities in ſome Legacies, as admit of no Election, but only a Declaration, the Priviledge whereof the Law ever Entitles the Executors and not the Legataries unto.eDe Praetis. lib. 1. int. 1. dub. 3. Sol. 4. nu. 8.
4. Note, That if a Teſtator hath but two things of the ſame kind, whereof he indiſtinctly bequeaths one, the Legatary hath the Election; if more than two, the Executor. fCharond. Obſ. in verb. Electio. & l. qui duos. l. ſi quis. §. penult. & l. legato. §. ult. ff. de Legat. 1.And if the Legatary having the Election ſhall delay it longer than need requires, the Ordinary at the inſtance of the Executor may ſet the Legatary a time, within which he ſhall determine his Election, on pain of forfeiting his Election to the Executor. gFran. Grimand. l. 1. c. 26. De Uſuris. l. Mancipiorum l. ſi Optio. ff. de Opt Leg.But if the Legatary happen to dye before his Election, his Executor ſhall have ithRanchin. Deciſ. par. 1. Cons. 387. & Guid. Pap. quaeſt. 240. & charond. Reſp. lib. 4. cap. 95.
5. As it is a Queſtion who ſhall have the Election, ſo likewiſe is it a Queſtion what or which the Elector may Elect. If the Election doth belong to the Legatary, and it be given him by the Teſtator, the DD. are much at variance in the point; ſome holding that he may chuſe in that caſe the beſt of the Deviſed Eligibles; Others ſay, not ſo, but in medio conſiſtit Electio; Others diſtinguiſh and ſay, That in ſuch caſe if the thing Deviſed be found among the Teſtators Goods he may chuſe the beſt, otherwiſe he muſt content himſelf with a Mediocrity. iDe Prae…. lib. 1. int. 1. dub. 3. ſol. 3. nu. 7. & l. unum. §. ſi rem. ff. de Legat. 2.But the more received and approved Opinion is, That when the thing bequeathed is the Teſtators, and he expreſly give the Election to the Legatary, he may then chuſe the beſt. kl. 2. ff. de Opt. Legat.And where ever the Law ſays the Legatary muſt regulate his Election, or take the meaſure of his choice by a rule of Mediocrity, ll. ulr. C. Commun. de Legat.It is not meant of an Election given by the Teſtator to the Legatary himſelf, but to a third perſon for him, who not chuſing at all, the Law transfers the choice not to the Executor, but to the Legatary.mCujac. Obſ. lib. 23. cap. 14.
6. Where the Law, and not the Teſtator, doth caſt the Election upon the Legatary, there and in that caſe he may not chuſe but what is inferior to the beſt, where there are more things than two of the ſame kind, ſubject to the Election. nl. legato. ff. de Legat. 1. & De Praetis. dict. ſol. 3. nu. 8.On the other hand, when the Election belongs to the Executor, and the thing generally Deviſed be found to be among the Teſtators Goods, and but two of that kind, in that caſe the Executor may chuſe the worſt of them for the Legatary. ol. apud Julianum. §. Seio. ff. de Legat. 1.Yea, though the Teſtator had more than two, or many of the ſame kind, ſo as the general Legacy were of ſomething inanimate, provided that that leaſt or worſt be not decay'd and altogether unprofitable, as Braſs Money inſtead of the real Diana, or decay'd Wines inſtead of rich Canary. But when the general Legacy is of things Animate, then the Executor ought to chuſe for the Legatary as not the beſt, ſo not the worſt, but at an equal diſtance between them both. pl. ſi haeres. ff. de Legat. 2.But if the Legacy be not of generals, but of ſomething certain and ſpecifical, yet which of them the Teſtator (he having many of the ſame kind) intended, is a Non Conſtat; the Executor in that caſe may deliver the leaſt; becauſe now the Queſtion is not ſo much touching the Election as the Declaration, which the Law ever gives to the Executor; for Election refers to uncertainties, but Declaration to obſcurities, as in the laſt precedent Caſe.ql. in Obſcuris. ff. de Reg. jur. In obſcuris ſequimur quod Minimum eſt.
7. Suppoſe a Teſtator doth bequeath a Horſe or an Oxe to A. B. which he will, or which he ſhall chuſe; and he ſuppoſing an Oxe onelyonly to have been given him in the Will, makes no other demand of the Executor than of the Oxe, who delivers it him accordingly. Afterward finding his error and underſtanding that he had it in his right to chuſe either a Horſe or an Oxe, demands a Horſe and reſtores the Oxe. The Law is againſt him, and leaves him in this caſe without Remedy. rl. ſi is cui. & gloſs. ibid. ff. de Legat. 2.The Law is the ſame in caſe the Executor by the Will, having the Election in himſelf, whether to give him the one or the other, but ſuppoſing a Horſe only to have been given him, doth deliver it to him accordingly, and after finding his Error would remand it, and give him an Oxe; he cannot.sGloſs. ibid.
8. If a man bequeath to A. B. a Horſe or a Yoke of Oxen, and the Teſtator hath neither Horſe nor Yoke of Oxen, nor that which he ſo bequeathed; yet is the Legacy good, and the Executor chargeable therewith; In which caſe the Election as to the value of the thing bequeathed, whether in the Executor or the Legatary, may vary (as was formerly hinted) according to the Teſtators words in the manner of the diſpoſition it ſelf. tPerk. Sect. 511. 525.And therefore if a man bequeath one of his Horſes to A. B. not ſaying which Horſe, in this caſe A. B. ſhall have the Election, if there be more than one: But if the Legacy be directed not to the Legatary but to the Executor, as when the Teſtator ſaith, [I will that my Executor ſhall deliver A. B. one of my Horſes] In that caſe the Executor hath the Election, and may deliver which of them, he will.
9. If the Teſtator ſaith, [I give 10 l. to A. B. or C. D.] at my Executors choice, or as my Executor ſhall chuſe; and the Executor ſhall after make choice of one of them, and pay him 10 l. he is diſcharged from the other. But if he will make choice of neither of them, each of them may demand the whole 10 l. as if the Legacy were given to him alone; ul. ſi Titio. & gloſs. ibid. ff. de Legat. 2.and then he ſhall be preferr'd in this caſe who firſt Commences his Suit; wBart. in dict. Leg. & Rubr. ibid.In other Caſes who firſt gets Judgment.
10. If there be a doubt and diſpute between two perſons pretending to the ſame Legacy, to which of them it belongs; as if the Deviſe be to Thomas Stiles, without other deſcription, diſtinction or diſcrimination of the Perſon, and there be two of that Name, of equal reſpect with the Teſtator, or both alike, his Friends or Acquaintance; In this caſe the Executor hath his Election to. deliver the Legacy to which of them he pleaſe. xl. ſi quis ſervum. § 3. ff. de Legat. 2.Yet ſome are of Opinion that in ſuch caſe the Legacy is void and null by reaſon of uncertainty.yGioſs. ibid.
11. I Deviſe to A. B. my Dwelling-houſe, if he doth not chuſe my great Meadow in Dales. This is all one as if I ſaid, I Deviſe to A. B. my ſaid Houſe or Meadow, which he will. zl. cum ita. ff. de optio. Leg.Or as if I ſaid, I Deviſe to him my Meadow if he doth not chuſe my Dwelling-houſe. In both which caſes A. B. hath his Election.aGloſs. ibid.
12. If the Teſtator ſaith that A. B. ſhall have one of his Horſes, or that he ſhall chuſe one of his Horſes, which he will, and A. B. through a miſtake doth chuſe a Mare; he hath determined his Election, and though he repent of his choice and would reſtore the Mare, he cannot chuſe again; bGloſs. in L. ſervi. ff. de legat. 1.as alſo becauſe Mares do paſs in a Deviſe of all the Teſtators Horſes.cl Martianus. ff. de Legat. 3. & Col. Lex. verb. Legat.
13. If a man having two Horſes doth bequeath one of them, but it doth not appear which, in regard the words of the Legacy are not directed either to the Executor or Legatary, ſo as thence to infer unto which of them he intended the Election, In ſuch caſe the Legatary ſhall have the Election; becauſe it being certain that a Horſe he bequeathed, but uncertain which, not expreſſing himſelf at which certain Horſe he aim'd the Legacy: The Executor ſhall not in this caſe interpret d) Gloſs. in l. qui duos. ff. de Legat. 1.his mind; for in all doubtful Caſes it ſhall be conſtrued in favour of the Legatary.
14. A. B. Covenants with C. D. to convey him ſuch a Field, or to pay him 50 l. which of the two C. D. pleaſe. C. D. makes his Will, and therein gives to J. G. whatever A. B. owed to him the ſaid C. D. and dyes. The Queſtion is, what J. G. can by this Deviſe recover from the Executor of C. D. The anſwer is, he may compel him to Commence an Action againſt the ſaid A. B. And as C. D. had his Election whether he would have the Field or 50 l. which Election upon his Deceaſe came to his Executor: So now by vertue of this Deviſe that Election ſhall be in J. G. as the Legatary of C. D.aGloſs. in §. ſi quis ita. l. ſi ſic legatum. ff. de Legat. 1.
15. A Teſtator having eight fat Oxen, ſaith I give them all to A. B. or 10 l. for each of them, at his own choice. A. B. doth chooſe four of the Oxen, and doth demand 40 l. for the other four. This the Legatary may not do; for the Legacy of all the Oxen is but one Legacy, and therefore may not be Divided. fl. neminem. ff. de Legat. 2. & gloſs. in l. ſi ex toto. ff. de Legat. 1.Alſo the value of the Oxen is but one Legacy; for which reaſon may that neither be Divided. gGloſs. ibid.The Caſe is the ſame, if a man bequeath 50 Gallons of Sack or Five Shillings for each Gallon, at the Legataries choice; he cannot divide the Legacy, but muſt take it all in Sack, or all in Money; Otherwiſe if ſuch Diviſion were Admiſſable, and the Teſtator ſhould give ſuch a Horſe or Five pounds at the Legataries choice, this abſurdity would follow, the Legatary might take Fifty Shillings, and one half of the Horſe.hin dict. gloſ.