PREMIUM LEGAL RESOURCES
ASK A LAWYER
A gift of money or of personal property, title to which is passed under the terms of a will.
A bequest or gift of goods or chattels by testament. This word, though properly applicable to bequests of personal estate only, has nevertheless been extended to property not technically within its import, in order to effectuate the intention of the testator, so as to include real property and annuities. Devise is the term more properly applied to gifts of real estate.
The testator's intention, if uncertain, is to be sought, and any words which manifest the intention to give or create a legacy are sufficient.
Legacies are of different kinds - general, specific and residuary.
A legacy is general, when it is so given as not to amount to a bequest of a specific part of a testator's personal estate; as of a sum of money generally or out of the testator's personal estate or the like. A general legacy is relative to the testator's death; it is a bequest of such a sum or such a thing at that time or a direction to the executors, if such a thing be not in the testator's possession at that time, to procure it for the legatee.
A specific legacy is a bequest of a particular thing or money specified and distinguished from all other things of the same kind; e.g., of a particular horse, a particular piece of plate, a particular term of years and the like, which would vest immediately with the assent of the executor. A specific legacy has relation to the time of making the will; it is a bequest of some particular thing in the testator's possession at that time, if such a thing should be in the testator's possession at the time of his death. If it should not be in the testator's possession, the legatee has no claim. There are legacies of quantity in the nature of specific legacies, as of so much money with reference to a particular fund for their payment.
This kind of legacy is so far general and differs so much in effect from a specific one, that if the funds be called in or fail, the legatees will not be deprived of their legacies, but be permitted to receive them out of the general assets.
A residuary legacy is a bequest of all the testator's personal estate, not otherwise effectually disposed of by his will.
As to the interest given, legacies may be considered as; absolute for life, or in remainder. A legacy is absolute when it is given without condition and is to vest immediately.
A legacy for life is sometimes given with an executory limitation after the death of the tenant for life to another person; in this case, the tenant for life is entitled to the possession of the legacy, but when it is of specific article's, the first legatee must sign and deliver to the second, an inventory of the chattels expressing that they are in his custody for life only and that afterwards they are to be delivered and remain to the use and benefit of the second legatee. A bequest for life, if of specific things, is a gift of the property.
In personal property there cannot be a remainder in the strict sense of the word and therefore every future bequest of personal property, whether it be preceded or not by any particular bequest or limited on a certain or uncertain event, is an executory bequest and falls under the rules by which that mode of limitation is regulated. An executory bequest cannot be prevented or destroyed by any alteration whatsoever, in the estate, out of which or after which it is limited. And this privilege of executory bequests, which exempts them from being barred or destroyed, is the foundation of an invariable rule; that the event on which an interest of this sort is permitted to take effect, is such as must happen within a life and twenty-one years.
As to the right acquired by the legatee, legacies may be considered as vested and contingent. 1. A vested legacy is one by which a certain interest, either present or future in possession, passes to the legatee. 2. A contingent legacy is one which is so given to a person, that it is uncertain whether any interest will ever vest in him.
A legacy may be lost by abatement, ademption and lapse. When the legatee dies before the testator or before the condition upon which the legacy is given be performed or before the time at which it is directed to vest in interest have arrived, the legacy is lapsed or extinguished.
As to the payment of legacies, it is proper to consider out of what fund they are to be paid; at what time; and to whom. It is a general rule that the personal estate is the primary fund for the payment of legacies. When the real estate is merely charged with those demands, the personal assets are to be applied in the first place towards their liquidation.
When legacies are given generally to persons under no disability to receive them the payments ought to be made at the end of a year next after the testator's decease. The executor is not obliged to pay them sooner although the testator may have directed them to be discharged within six months after his death, because the law allows the executor one year from the demise of the testator, to ascertain and settle his testator's affairs; and it presumes that at the expiration of that period and not before, all debts due by the estate have been satisfied and the executor to be then able, properly, to apply the residue among the legatees according to their several rights and interests.
The legacy under an universal title is that by which a testator bequeaths a certain proportion of the effects of which the law permits him to dispose; e.g., a half, a third, all his immovables or all his movables, or a fixed proportion of all his immovables or of all his movables.
Every legacy not included in the definition given of universal legacies and legacies under a universal title is a legacy under a particular title.