The Orphans Legacy, Part 3 · Chapter 3
CHAP. III. Of Words and Expreſſions ſufficient for Legacies.
1. Any Words, whereby the Teſtators mind or meaning is expreſs'd or implyed, are ſufficient for Legacies.
2. Legacies are not deſtroyed by Words impertinently uſed by the Teſtator in the Bequeſt.
3. That words carrying a falſe demonſtration, ſhall not vitiate and null the Legacy; Alſo how this is to be underſtood.
4. Whether a Legacy may be Bequeathed only by the Teſtators Signs, Becks, or Nodds, when he can ſpeak articulately.
5. Whether a Legacy ſhall paſs by Words only Implicatory of a contrary Condition:
6. In point of Legacies the Teſtators meaning expreſs'd by Words, is more to be heeded, then when implyed by Deeds.
7. The Teſtators Words by Implication may be ſuch, as may make the Legacy greater Caſually, then he plainly expreſs'd Originally.
1. IF a Man in his laſt Will and Teſtament ſays, I do give, bequeath, deviſe, order, or appoint to be paid, given or delivered; or my will, pleaſure, or deſire is, That he ſhall have or receive, or keep, or retain; or I Diſpoſe, or Aſſign, or Leave ſuch a thing to ſuch a one; or let ſuch a perſon have ſuch a thing; or any other Words whereby the Teſtators Mind or Meaning of Bequeathing is expreſſed or ſufficiently implyed, ſhall be ſignificant enough whereby the Legacy ſhall paſs, provided no other Legal Obſtacle ſtand in the way; becauſe it is not in laſt Wills and Teſtaments as in Deeds; for in Deeds the Words do fall under a ſtricter examinination then the intention, or the mind; but in Wills and Teſtaments the Teſtators Mind and Meaning is more valuable and of more efficacy in Conſtruction then his Words, ſo long as the Interpretation of his Mind and Meaning hold a Conformity with his words, nor is oppugned by any other part of his laſt Will and Teſtament.
2. A Teſtator in making a Bequeſt may poſſibly ſpeak ſuch words as may be very impertinent, yea and in themſelves altogether untrue, and yet the Legacy not deſtroyed: As thus; viz. If I give and Bequeath my Field Long-acre to A. B. beyond, above, beſides, more then, or over and above the Black Horſe, which I had of him in Conſideration of the Ten pounds which he owed me: This Long-acre is a good Deviſe or Legacy to A. B. albeit the Teſtator never had any ſuch Black Horſe of him, and althongh he never owed him any ſuch Ten pounds; The Reaſon is, becauſe the ſaid words, [above, beyond, &c.] in this ſenſe, and in this caſe are Incluſive, and are ſo to be underſtood and interpreted. aSurd. Deciſ. 285, & Are…in. in l. qui ita ff. deDot. praeleg. & Bart. ibid. Mantic. l. 9, tit. 3, nu. 32, & Menoch de Praeſump. lib. 4. praeſ. 145, & Perigrin. de Fidei Comiſſ. art. 16, nu. 18.So that,
3. A falſe Demonſtration ſhall not vitiate a Legacy; Inſomuch that if the Teſtator, who hath Bequeathed nothing to A. B. do ſay, That out of the Hundred pounds which I have Bequeathed to A. B. I de give Fifty to C. D. If in this caſe it be queſtioned whether any thing be due to A. B. And what is due to C. D. The Anſwer is, That Fifty Pounds are due to G. D. although nothing be here Beqeathed to A. B. becauſe a Legacy ſhall not be vitiated or nulled meerly by a falſe Demonſtration; But to A. B. nothing is due; becauſe it was not the Teſtators mind to Bequeath any thing to him, but rather to leſſen or diminiſh it, if any thing had been given him; For a Deminution, Ademption, or taking from in ſuch caſe hath its operation to evince by how much the leſs, not by how much the more the Legacy is due. bL. 14, de admi. leg.But if the Teſtator ſay, I Bequeath 100 l. to A. B. beſide my Field Long-acre: In this caſe Long-acre is preſumed to be Bequeathed as well as the Hundred Pounds. And whereas it is hereſaid, That a falſe Demonſtration doth not vitiate or make void the Legacy: Underſtand it thus, That is, if the Demonſtration be altogether and totally Falſe: But if it be Falſe only in part, Then the Legacy is void only for that part, and it may hold for another part. cRebuff. ad l. Appellatione verſ. Tertio. de verb. Sign.To this may be added Caſe, If the Teſtator ſay, I Bequeath to A. B. the Hundred pounds which I have in my Cheſt; there is nothing due to A. B. and the Legacy is void, if it be not in his Cheſt; dL. fi Servus §. qui quin que ff. de Leg. 1.becauſe he that ſo ſays, doth not Bequeath a Hundred pounds ſimply; but the Hundred pounds in his Cheſt: And theſe words [which are in his Cheſt] doth demonſtrate, That the Teſtators meaning was to Bequeath rather by way of certainty, as to the Species or Corpus, then as to the quantity.
4. If the Teſtator ſay, I Depute ſuch a thing to A. B. Or I Aſſign ſuch a thing to C. D. This is a good Bequeſt or Legacy; eMenoch. de Praeſump. lib. 4, praeſumpt. 105, nu. 2.Yet withall here obſerve, That a Legacy may be Given or Bequeathed only by Signs, or Becks, or Nodds, by the Head, Hands, or Eyes. fMantic. lib. 6, tit. 4, n. 1.But this is more clear and leſs Dubitable, when a Legacy in ſuch manner is left by a Teſtator, who by Reaſon of the violence and ſurprize of ſome Diſeaſe is deprived of his Speech; gCovar. cap. cum tibi. lib. 2, var. Reſolut.at leaſt of ſpeaking articulately, though not deprived of his Speech totally. hMath. ad Guid. Pap. quaeſt. 459.The greateſt doubt is concerning him, who though he can ſpeak articulately, yet doth Bequeath by Signs or Nodds; for ſome are of Opinion, That ſuch cannot diſpoſe of a Legacy in that manner: iAdditionator. ad Gomez. var. Reſo. tom. 1, c. 12, n. 2.But this is commonly rejected as the more unſound Opinion. kMath. ad dict. quaeſt. 459, & Gomez. dict. c. 12, n. 2.Now a Legacy is then underſtood to be left in this caſe, when the Teſtator being asked by ſome one whether he will leave a Hundred pounds or ſuch a thing to …imſelf or ſome other, doth not Anſwer to the Queſtion, but by Signs or by Nodding his Head, ſhewing a pleaſed or diſpleaſed Countenance, or by other motion of the Body doth plainly diſcover his Will and Pleaſure therein.
5. Suppoſe the Teſtator ſpeak only after this manner, viz. If my Son A. B. Marry with C. D. let not my Executor give him a Hundred Pounds; whether from theſe words by the contrary ſenſe is the Legacy of a Hundred Pounds underſtood to be left to his Son A. B. under the contrary Condition, viz. If he do not Marry with C. D. This is held in the Affirmitive. lMantic. lib. 3, tit. 17.Yet this would not hold if he ſhould appoint an Executor after this manner, and ſay, If my Son A. B. Marry with C. D. let him not be my Executor, or one of my Executors: The Reaſon is, becauſe an Executor may not be Inſtituted, nor the Office of an Executor inferred only by Conjecturals. mMant. dict. tit. 17, nu. 2.Again, a Legacy taken away under a Condition, is not only from thence underſtood to be given under the contrary Condition; becauſe a Legacy due only under a Condition, may not be argued or inferred from a contrary ſenſe by force of a bare ademption, but by force of a Legacy formerly ſo Bequeathed as may not be underſtood to be taken away though the Condition fails, but only when the Condition takes place or effect.nMantic. ibid
6. In Caſes doubtfull touching Legacies, and the Teſtators Mind or Meaning as to the ſame, Recourſe muſt be had rather to what he doth Expreſs by Words, then what he doth imply by any Acts or Deeds, when there appears any diſcrepancy between them. Hence ſuppoſe a Parent having divers Sons and Daughters, doth appoint them all his Executors, and to his eldeſt Daughter doth deliver all his Keys and his Signet Ring which he commonly uſed; And having delivered theſe to her to keep, doth withall Order and Aſſign, That his ſaid Daughters, Son, or Servant, (be it expreſly either) ſhall have ſuch Apparel, Moneys, or other things as he hath in his Care, and under his Cuſtody: Whether in this caſe doth the Parent ſeem to Bequeath to that eldeſt Daughter whatſoever is under Lock, ſhut up, or Sealed. The Anſwer is in the Negative.oL. cum pater §. pater pluribus ff. de legat. 2.
7. Laſtly, The Teſtators words may poſſibly be ſuch, and carry in them ſuch a ſenſe by direct implication, as whereby the Legacy may caſually become greater then at firſt was apprehenſively expreſs'd by him. For Explanation whereof add to the former this one Memorable Caſe more. Suppoſe a Legacy be given by a Teſtator to the Son of him who is indebted to the Teſtator; adding withall theſe Words, viz. I ſhould or I would leave him more, if his Father had paid me what he owes me. In this caſe it is held, That if afterwards that Son happen to be his Fathers Executor, he is by theſe Words freed from that Debt which his Father owed to the Teſtator.pL. ult. §. 1. de Dol. Excep. & Roman. Singu. 535.
qHill. 14, Jac. B. R. per Cur. Rol. Abridgm. tit. Execut. Litt. X.If there be a Deviſe of a Legacy to one and his Aſſigns, though the Deviſee die before Payment, yet his Adminiſtrator ſhall have it as his Aſſign.
rMich. 24, Eliz. Weaſts Caſe. Moo. Rep. nu. 314, Stat. 34, H. 8, 32, of WillsAmerſam ſaid to Moore, That Popham, now Chief Juſtice of England held in his Readings, That if one by a Letter expreſs his Will for the Diſpoſal of his Lands, it is ſufficient: For it was the Caſe of one Weaſt, who went beyond Sea, and wrote ſuch a Letter, wherein he will'd, That his Lands ſhould go in ſuch manner. And it was held a good Deviſe.