from
Bouvier's Law Dictionary, Revised 6th Ed (1856)
LEGACY. A bequest or gift of goods or chattels by testament. 2 Bl. Com. 512;
Bac. Abr. Legacies, A. See Merlin, Repertoire, mot Legs, s. 1; Swinb. 17;
Domat, liv. 4, t. 2, Sec. 1, n. 1. 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. 5 T. R. 716; 1
Burr. 268; 7 Ves. 522; Id. 391; 2 Cain. R. 345. Devise is the term more
properly applied to gifts of real estate. Godolph. 271.
2. As the testator is presumed at the time of making his will to be
inops concilii, his intention is to, be sought for, and any words which
manifest the intention to give or create a legacy, are sufficient. Godolph.
281, pt. 3, c. 22, s. 21; Com. Dig. Chancery, 3 Y 4; Bac. Abr. Legacies, B
1.
3. Legacies are of different kinds; they may be considered as general,
specific, and residuary. 1. 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. 1 Rop. Leg. 256; Lown. Leg. 10. 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. Cas.
Temp. Talb. 227; Amb. 57; 4 Ves. jr. 675; 7 Ves. jr. 399.
4.-2. A specific legacy is a bequest of a particular thing, or money
specified and distinguished from all other things of the same kind; as 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.
1 Rop. Leg. 149; Lownd. Leg. 10, 11; 1 Atk. 415. 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. Touchs. 433; Amb. 310; 4
Ves. 565; 3 Ves. & Bea. 5.
5. 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; yet the legacies are go far specific, that they will
not be liable to abate with general legacies upon a deficiency of assets. 2
Ves. jr. 640; 5 Ves. jr. 206; 1 Mer. R. 178.
6.-3. A residuary legacy is a bequest of all the testator's personal
estate, not otherwise effectually disposed of by his will. Lown. Leg, 10;
Bac. Abr. Legacies, I.
7. As to the interest given, legacies may be considered, as absolute,
for life, or in remainder. 1. A legacy is absolute, when it is given without
condition, and is to vest immediately. See 2 Vern. 181; Ambl. 750; 19 Ves.
86; Lownd. 151; 2 Vern. 430; 1 Vern. 254; 5 Ves. 461; Com. Dig. Appendix,
Chancery IX.
8.-2. 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. 3 P. Wms. 336; 1 Atk.
471; 2 Atk. 82; 1 Bro. C. C. 279; 2 Vern. 249. See 1 Rop. Leg. 404, 5, 580.
It seems that a bequest for life, if specific of things quo ipso usu
consumuntur, is a gift of the property, and that there cannot be a
limitation over, after a life interest in such articles. 3 Meriv. 194.
9.-8. 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. Fearne, Cont. R. 401,
n. An executory bequest cannot be prevented or destroyed by any alteration
whatsoever, in the estate, out of which, or after, which it is limited. Id.
421; 8 Co. 96, a; 10 Co. 476. 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 or lives in
being, and twenty-one years, and the fraction of another year, allowing for
the period of gestation afterwards. Fearne, Cont. R. 431.
10. 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.
11. A legacy may be lost by abatement, ademption, and lapse. I.
Abatement, see Abatement of Legacies. 2. Ademption, see, Ademption. 3. 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. See
Bac. Abr. Legacies, E; Com. Dig. Chancery, 3 Y. 13; 1 P. Wms. 83; Lownd.
Leg. ch. 12, p. 408 to 415; 1 Rop. Leg. ch. 8, p. 319 to 341.
12. In Pennsylvania, by legislative enactment, no legacy in favor of a
child or other lineal descendant of any testator, shall be deemed or held to
lapse or become void, by reason of the decease of such devisee or legatee,
in the lifetime of the testator, if such devisee or legatee shall leave
issue surviving the testator, but such devise or legacy shall be good and
available, in favor of such surviving issue, with like effect, as if such
devisee or legatee had survived the testator. The testator may however,
intentionally exclude such surviving issue, or any of them. Act of March 19,
1810, 5 Smith's L. of Pa. 112.
13. 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. 1. 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. 1 Serg. & Rawle, 453; 1 Rop. Leg. 463.
14.-2. 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. 5 Binn. 475. 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.
15. When a legacy is given generally, and is subject to a limitation
over upon a subsequent event, the divesting contingency will not prevent the
legatee from receiving his legacy at the end of the year after the
testator's death, and he is under no obligation to give security for
repayment of the money, in case the event shall happen. The principle seems
to be, that as the testator has entrusted him without requiring security, no
person has authority to require it. 1 Ves. Jr. 97; 18 Ves. 131; Lownd. on
Legacies, 403.
16. As to the persons to whom payment to be made, see, where the legacy
is given to an infant 1 Rop. Leg. 589 ;1 P. Wms. 285; 1 Eq. Cas. Abr. 300; 3
Bro. C. C. 97, edit. by Belt; 2 Atk. 80; 2 Johns. C. R. 614; where the
legacy is given to a married woman; 1 Rop. Leg. 595; Lownd. Leg 399; where
the legacy is given to a lunatic, 1 Rop. Leg. 599; where it is given to a
bankrupt; Id. 600; 2 Burr. 717.; where it is given to a person abroad, who
has not been heard of for a long time. Id. 601 Finch, R. 419; 3 Bro. C. C.
510; 5 Ves. 458; Lownd. Leg. 398.
See, generally, as to legacies; Roper on Legacies; Lowndes on Legacies;
Bac. Abr. Legacy; Com. Dig. Administration, C 3, 5; Id. Chancery, 3 A; 3 G;
8 Y 1; Id. Prohibition, G 17; Vin. Abr. Devise; Id. Executor; Swinb. 17 to
44; 2 Salk. 414 to 416.
17. By the Civil Code of Louisiana, legacies are divided into universal
legacies, legacies under an universal title, and particular legacies. 1. An
universal legacy is a testamentary disposition, by which the testator gives
to one or several persons the whole of the property which he leaves; at his
decease. Civ. Code of Lo. art. 1599.
18.-2. 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, as a half, a third, or all his immovables, or all
his movables, or a fixed proportion of all his immovables, or of all his
movables. Id. 1604.
19.-3. Every legacy not included in the definition given of universal
legacies, and legacies under a universal title, is a legacy under a
particular title. Id. 1618. Copied from Code Civ. art. 1003 and 1010. See
Toullier, Droit Civil Francais, tome 5, p. 482, et seq.