Obrazy na stronie
PDF
ePub

LEADING QUESTION—continued. a proposition as though he believed it to be true, with a view of leading the witness into the admission of it. Such questions may be asked upon cross-examination, but not upon examination in chief. They may also be asked with a view to discrediting one's own witness where he unexpectedly proves ailverse.

See also title WITNESSES. LEASE. A lease is a conveyance of lands or tenements to a person for life, for a term of years or at will, in consideration of a return of rent or some other recompense. The person who so conveys such lands or tenements is termed the lessor; and the person to whom they are conveyed the lessee; and when a lessor so conveys lands or tenements to a lessee, he is said to lease, demise, or let them. 4 Cruise, 58.

See also titles ASSIGNMENT; CONVEY

ANCES; FORFEITURE; FRAUDS, STA-
TUTE OF; LANDLORD AND TENANT ;
TENANCIES; UNDERLEASE.

LEASE AND RELEASE. A species of conveyance commonly in use for conveying the fee simple or absolute property in lands or tenements from one person to another. In the reigns of Henry VI. and Edward IV. it was not unusual to transfer freehold estates in the following manner: A deed of lease was made to the intended purchaser for three or four years; and after he bad entered into possession, a deed of release of the inheritance was executed to him, which operated by enlarging his estate into a fee simple. When it was found that the Statute of Uses transferred the actual possession without entry, the idea of a leuse and release was adopted. This kind of conveyance was thus contrived :-A lease, or rather bargain and sale upon some pecuniary consideration for one year was made by the tenant of the freehold to the lessee or bargainee, i.e., to the person to whom the lands were to be conveyed ; now this made the vendor stand seised to the use of the lessee or bargainee, and vested in the latter the use of the term for a year, to which the Statute of Uses immediately transferred the possession. Thus the bargaivee, by being in possession, became immediately capable of accepting a release of the freehold and reversion (which must be made to a tenant in possession), and accordingly a release was made to him, dated the day next after the day of the date of the lease for a year, which at once transferred to him the freehold.

See also titles CONVEYANCES; Uses.

LEGACIES. These are bequests (i.e., gifts by will) of personal property; they are of three kinds, namely :

LEGACIES—continued.

(1.) General, called also pecuniary, legacies, being a gift of money or other tungible substance in quantity :

(2.) Specitic legacies, being a gift of earmarked money, or of other ear-marked fungible substance, in mass, or of any nonfungible substance by description; and,

(3.) Demonstrative legacies, being a gift of money or other fungible substance in quantity, expressed to be made payable out of a specified sum of money or other specified fungible substance; but such legacies become, upon any destruction of the specified source of payment, merely general legacies.

The following are examples of these three kinds of legacies, namely :

(1.) General legacies: £500 in cash (Richards v. Richards, 9 Price, 221;); £50 annuity payable out of, or charged upon, the personal estate (Alton v. Meilicott, 2 Ves. 417); £20 to buy a ring (Apreece y. Apreece, 1 V. & B. 364); my stock (Goodlad v. Burnett, 1 K. & J. 341); and, ordinarily, residuary gifts.

(2.) Specific legacies: sum of money in such a bag (Lawson v. Stitch, 1 Atk. 508); sum of money in the hands of A. (Hinton v. Pinke, i P. Wms. 510); A.'s debt (Fryer v. Morris, 9 Ves. 300); A.'s bond (Davies v. Morgan, 1 Beav. 405); my East India Bonds (Sleech v. Thorington, 2 Ves. 562); gift of one part of debt to a., and of residue thereof to B. (Ford v. Fleming, 2 P. Wms. 469); gift of debt to A, for lite, remainder to B. (Ashburner v. Macguire, 2 Bro. C. C. 108); a lease of lands (Long v. Short, 1 P. Wms. 103); and orasionally residuary gifts. Page v. Leapingwell, 18 Ves. 463.

(3.) Demonstrative legacies : £1000 out of my Reduced Stock (Kirby v. Potter, 4 Ves. 748); £12,000 out of my funded property (Lambert v. Lambert, 11 Ves. 607); £500 annuity or legacy payable out of, or charged on, lands. Savile v. Blacket, 1 P. Wms. 778.

These distinctions between legacies lead to the following consequences :

I. With reference to the Ademption of legacies :

(1.) General legacies are not, as a general rule, liable to ademption; so that although locally described, the alterat.on of locality by removal does not adeem the legacy (Norris v. Norris, 2 Coll. 719); but a general legacy to a child would be adeemed in whole, or pro tanto, by a subseyuent portion given to that child (see title SATISFACTION OF LEGACY BY Portion, infra).

(2.) Specific legacies are invariably liable to ademption, e.g., by the specific thing ceasing to belong to the testator and not becoming his again at or before his death (Stanley v. Potter, 2 Cox, 182), and without LEGACIES —continued. reference to the animus adimendi of the testator (Ashburner v. Macguire, 2 Bro. C. C. 108); or even, in case of the specific thing being specific by local description merely, by the alteration of that description through the removal of the goods in the testator’s life-time (Green v. Symonds, 1 Bro. C. C. 127, n.; Heseltine v. Heseltine, 3 Mad. 276), unless the local description is again in existence at the testator's death (Land v. Devaynes, 4 Bro. C. O. 537); or unless the original removal was due to fire or other inevitable cause (Chapman v. Hart, 1 Ves. 271), or to fraud (Shaftsbury v. Shaftsbury, 2 Vern, 747); or by the destruction of the specific thing, although it is insured and the insurance is recovered after the testator's death, and although the destruction occurred contemporaneously with his death (Durrant v. Friend, 5 De G. & Sm. 313); or in the case of a debt, by the discharge of the debt in the testator's lifetime (Rider v. Wager, 2 P. Wms. 329); (Barker v. Rayner, 5 Madd. 208); although the debt should have been a mortgage debt, and part of it is outstanding at the testator's death on a new security (Gardner v. Hatton, 6 Sim. 93); but in general the partial receipt of a debt is only an ademption pro tanto (Jones v. Southall, 32 Beav. 31); and a destruction by Act of Parliament of stock of one kind followed by a substitution for it of stock of another kind is no ademption (Partridge v. Partridge, Cas. t. Talb. 226; Oakes v. Oakes, 9 Hare, 666); as neither is the unauthorized although provident alteration during lunacy of a specific thing bequeathed by the lunatic when sane (Taylor v. Taylor, 10 Hare, 475). A specific legacy is also adeemed by an assignment of the specific thing, e.g., leaseholds (Cowper v. Maintell, 22 Beav. 223); but not by a pawn or pledge thereof (Knight v. Davis, 3 My.& K. 361); and the executors must redeem same at the cost of the general estate, although the executors peed not in the case of a bequest of fully paid-up shares, or of other like choses already perfected in the testator's lifetime, pay the calls which are made thereon subsequently to the testator's death. Armstrong v. Barnet, 20 Beav. 424.

(3.) Demonstrative legacies, like general legacies, are not liable to ademption, the fund specified as that out of which they are to be paid being the primary fund only, and the general personal estate being liable in subsidium (Sacile v. Blacket, 1 P. Wms. 777); but such a legacy would be adeemed if the specified fund were declared to be the only fund for payment (Coard v. Holderness, 22 Beav. 391); and, semble, it would be adeemed in the case of a child by a subsequent portion to that child,

LEGACIES- continued.

II. With reference to the Abatement of legacies :

(1.) General legacies are liable to abate as between themselves in case the general personal estate, and other the property (if any) available for their payment is insufficient (after payments thereout which are of prior right) to pay them all in full, the payments of prior right heing debts, specific legacies, and demonstrative legacies which have remained demonstrative; see title MARSHALLING AS BETWEEN LEGATEES. A residuary bequest, if general, abates with general legicies (Petre v. Petre, 14 Beav. 197); but a general legacy which is given for value, e.g., for the relinquishment of dower (Burridge v. Bradyl, 1 P. Wms. 126; 3 & 4 Will. 4, c. 105, 8. 12), or for the release of a debt actually due (Davies v. Bush, 1 Younge, 341), is preferred to other general legacies; and similarly any legacy, although general, which the testator expresses a clear intention should be preferred. Lewin v. Levin, 2 Ves. 415.

(2.) Specitic legacies are liable to abate as between themselves, and pari passu with demonstrative legacies which have remained demonstrative, but are preferred to general legacies.

(3.) Demonstrative legacies which have remained demonstrative are liable to abate as between themselves, and pari passu with specific legacies, but are preferred to general legacies (Roberts v. Pocock, 4 Ves. 150); but demonstrative legacies which have become general are not so preferred, Mullins v. Smith, 1 Dr. & Sm. 210.

III. With reference to the repetition of legacies,

See title SATISFACTION OF LEGACY BY

LEGACY. IV. With reference to the satisfaction of legacies,

See title SATISFACTION OF LEGACY BY

LEGACY. V. With reference to the marshalling of legacies,

See title MARSHALLING OF ASSETS. VI. With reference to legacies being annuities,

See title ANNUITIES. VII. With reference to the lapse of legacies,

See title LAPSE. VIII. With reference to interest legacies :

(A.) General legacies carry interest from the time they are payable. Therefore,

(a.) Where the testator has fixed no time of payment, they are not payable until one year after his decease, and therefore only carry interest as from that date (Child v. Elsworth, 2 De G. M. & G. 679), unless they are charged on land, in which case

on

9

LEGACIES-rontinued. they are payable, and therefore carry interest, as from the testator's death (Maxwell v. Wettenhall, 2 P. Wms. 26); and from whichever of these two dates they are payable, they will carry interest, although the actual payment of the legacies themselves should be then impracticable (Wood v. Penoyre, 13 Ves. 333), and whether the assets are productive or not (Pearson v. Pearson, 1 S. & L. 10); and

(6.) Where the testator has fixed a time for payment;

(aa.) If that time is fixed for the convenience of the estate merely, they will be payable, and will therefore carry interest, as from the testator's death or as from one year after the testator's death, according as they are or are not charged on land (Varley v. Winn, 2 K. & J. 700); but

(bb.) If that time is not fixed for the convenience of the estate merely, then it must be observed; and if it exceed the year, the interest will be proportionately delayed (Heath v. Perry, 3 Atk. 101); but if it fall within the year, the interest will be proportionately accelerated (Lord Londesborough v. Somerville, 19 Beav. 295); and

(c.) Whether the testator has fixed a time of payment or not, the following other legacies are payable, and therefore also carry interest, as from the testator's death.

(1.) A legacy which is in satisfaction of a debt, whether of the testator's own (Clark v. Sewell, 3 Atk. 99) or of another man, Shirt v. Westly, 16 Ves. 393.

(2.) A legacy by a parent (Beckford v. Tobin, 1 Ves. 310), or person in loco parentis (Wilson v. Maddison, 2 Y. & C. C. O. 372) to a legitimate child being an infant, but not to a legitimate child being an adult (Raven v. Waite, 1 Sw. 553), nor to a legitimate child although an infant, being otherwise provided with maintenance (In re Rouse's Estate, 9 Hare, 649), nor to an illegitimate child (Beckford v. Tobin, 1 Ves. 310) in the absence of an express direction as to maintenance. Newman v. Bateson, 3 Sw. 689.

(3.) A legacy which is settled upon several takers in succession(Angerstein v. Martin, T. & R. 232; Howe v. Dartmouth (Earl), 7 Ves. 137); but a legacy of consumable articles, other than stock in trade (Philips v. Beal, 32 Beav. 25), and other than farming stock (Groves v. Wright, 2 K. & J.317), being an absolute gift (Andrew v. Andrew, 1 Coll. 690), unless where the consumable articles are included in a residuary bequest comprising other articles of a different nature (Randall v. Russell, 3 Mer. 195), the rule as to payment of interest to the tenant for life as from the death is inapplicable.

(B.) Specific legacies carry interest from the time they are payable, and being con

LEGACIES-continued. sidered as severed from the bulk of the estate and appropriated for the benefit of the specific legatee as from the death of the testator, they carry interest as from the death (Barrington v. Tristam, 6 Ves. 345); and for that matter it makes no difference that the testator has directed them to be paid within twelve calendar months after his decease (Bristow v. Bristow, 5 Beav. 289), or has otherwise postponed the enjoyment of the principal. 2 Rop. Leg. 1250, 4th ed.

(C.) Demonstrative legacies which have remained demonstrative, carry interest, semble, from the testator's death in like manner as specific legacies : but where they are payable out of reversionary property, they carry interest, semble, only as from the date at which the reversion falls in (Earle v. Bellingham, 24 Beav. 448); and if they have ceased to be demonstrative, and are become gi neral legacies, they are subject to the rules above stated regarding the payment of interest on general legacies. Mullins v. Smith, 1 Dr. & Sm. 210.

Where interest is payable, it is usually at the rate of 4 per cent. (Wood v. Bryant, 2 Atk. 523), free of all deductions on account of cost of remittance or otherwise (Cockerell v. Barber, 16 Ves. 461). And

IX. With reference to legacies charged on land :

In general, a legacy which is vested is, in case of the death of the legatee subsequently to the vesting and previously to the commencement of the actual enjoyment of the legacy, transmissible to the personal representatives of the legatee, and the Courts, both of Law and Equity, favour in all cases the vesting of legacies.

Thus, even at Law. all legacies are considered as vested unless where there is a condition precedent to the vesting; and a legacy once vested will not be divested by any condition subsequent either at Law or in Equity unless the latter condition is exactly fulfilled (Harrison v. Foreman, 5 Ves. 207; Doe d. Blakiston v. Haslewood, 10 C. B. 544). Also, words of apparent contingency are construed as words of futurity, and as having reference to the period of enjoyment only and not of the vesting (Maddison v. Chapman, 4 K. & J. 7099). This latter principle being so strong in the case as well of personal as of real estate that a bequest or devise to the chil. dren of A. as a class vests in the existing children of A. at the death of the testator, although A. is then living, and opens up to admit after-born children of A. (if any) successively as they are born (McLachlan v. Taitt, 2 De G. F. & J. 449). And words of apparent conditionality are in like manner construed as words of futurity, having

on

one

es

LEGACIES—continued. reference to the enjoyment only and not to the vesting (Manfield v. Dugard, 1 Eq. Ca. Abr. 194 ; Doe d. Wheedon v. Lea, 3 T. R. 41; Pearsall v. Simpson, 15 Ves. 29); and conditions apparently precedent will, if possible, be construed as conditions subsequent, so as rather to vest the estate meanwhile and leave it liable to be divested afterwards, than prevent it from vestiny at all in the meantime (Edwards v. Hammond, 1 Bos. & Pul. N. R. 324, n.); but, of course, this cannot always be done (Bull v. Pritchard, 5 Hare,567); and where the postponement of enjoyment is merely for the convenience of the estate, the future interest will be held a vested interest (Blamire v. Geldart, 16 Ves. 314); and although the gift is residuary, the Courts strongly incline to construing it as vested, so as to avoid an intestacy. Booth v. Booth, 4 Ves. 399.

All the foregoing statement applies equally to real and to personal estate; but the Common Law, from the favour it shews to the heir, who is always an ascertained or ascertainable person, holds that a legacy payable out of lands (not being also a devise of the very lands themselves or part thereof), although it be vested, yet sinks for the benefit of the inheritance in case the legatee die before the period of actual en: joyment, no matter whether the legacy be to a child as a provision or portion for that child (Paulett v. Paulett, 1 Vern. 321), or be to a stranger (Smith v. Smith, 2 Vern. 92), unless where the postponement of the enjoyment is for the convenience of the estate merely (King v. Withers, 3 P. Wms. 414), or unless the testatur expressly directs the contrary (Watkins v. Cheek, 2 S. & S. 199). The like rules applied mutatis mutandis to legacies payable out of a mixed fund of real and personal estate. Chandos (Duke) v. Talbot, 2 P. Wms. 601.

Legacies charged on land carry interest as from the testator's death (Maxwell v. Wettenhall, 2 P. Wms. 26), and not (like personal legacies) as from one year after the testator's death. Child v. Elsworth, 2 De G. M. & G. 679.

See also title ANNUITIES.

LEGACY DUTY-continued. are supplementary to the prior Act, the duty is payable upon all legacies “paid, delivered, retained, satisfied, or discharged.”

According to Hanson (Probate, Legacy, and Succession Duty Acts), p. 14, “The legacy duties now in force are those imposed by the 55 Geo. 3, c. 184, according to which the duty is payable, (a.) For every legacy of the amount or

value of £20 and upwards given

by will either (aa.) Out of personal estate, or (Ub.) [Where testator has died since

5th April, 1805] out of real estate, or out of the proceeds of the sale or mortgage of real

estate; and also (6.) For the clear residue) either when devolving (aa.) Of the

person, personal and

tate of any (c.) For every share of } testator or in

the clear residue, testate; or when devolving on (bb.) (Where two or more per-| testator has bons,

1 died since 5th April, 1805], of the proceeds of the sale or mort.

gage of real estate ; being a legacy (a), residue (), or share of residue (c), paid, delivered, retained, satisfied, or discharged after the 31st August, 1815.”

With reference to powers of appointment over property, (1.) Where the power is general, an

appointment by will in exercise of a power created either by deed (In re Cholmondeley, 1 Cr. & Mee. 149), or by will, is a legacy under the will of the person exercising the power; and it matters not whether the gift under the appointment be out of real or out of personal estate, or whether it be the gift of an annuity or a specified sum of money; and by the joint effect of the stitutes 36 Geo. 3, c. 52, s. 18, and 16 & 17 Vict.c. 51, s. 4, the donee of the general power (i.e., the appointor), is chargeable with legacy or (at any rate) succession duty, when he makes an appointment; so that,

in fact, two duties are payable. (2.) Where the power is limited, -an ap

pointment by will (Att.-Gen. v. Henniker, 7 Ex. 331), or by deed (Sweeting v. Sweeting, 1 Dr. 331),

in exercise of a power,(a.) Which is created by icill,-is a

legacy under the will creating the power;

LEGACY DUTY. This is a duty imposed upon personal property (other than leaseholds) devolving under any will or intestacy. It was imposed for the first time in 1780, and became payable upon the receipt of the property (Green v. Croft, 2 H. BI. 30); but under the stat. 36 Geo. 3, c. 52, which regulates the duty at the present day, it is payable on the property itself, irrespectively of the receipt thereof, and generally under the last-mentioned Act and the two sub equent stats., 15 Geo. 3, c. 28, and 55 Geo. 3, c. 184, which

LEGACY DUTY-continued. (b.) Which is created by deed, -is a

succession under the deed creating the power. (And see Suo

CESSION DUTY.) In the case of a conflict of laws, – (1.) As regards personal property (not

being chattels real), the law of the domicile determines the liability to, or exemption from, legacy and also succession duty (Thomson v. Adv.-Gen., 12 Cl. & F. 1; Wal

lace v. Att.-Gen., L. R. 1 Ch. 1); (2.) As regards chattels, the lex loci

real, and real pro- rei sitä de

perty generally, termines; (3.) As regards powers of appointment

over property, (a.) If the property is pure personal

estate, and (aa.) The appointment is made by

will, the lex loci situs subjects the same to succession duty, although the domicile of the testator should be different from the situs of the property; and this is so, whether the power be created by deed (In re Lovelace, 4 De G. & J. 340), or by will (In re Wallop's Trusts, 1 De G. J. & S. 656); and for this purpose the situs may be

constructive merely; but if (bb.) The appointment is made by

deed, then only the actual situs, and not the construc

tive, determines; and (b.) If the property is chattels real, or

real property generally, the lex loci rei sitæ governs exclusively.

(Compare SUCCESSION Duty.) Legacy Duty is to be paid at the time when the property chargeable with it is transferred to, or retained for, the person entitled (36 Geo. 3, c. 52, s. 6), and therefore in the case of reversionary property not until the same falls into possession, naturally or by acceleration. (Contrast SrcCESSION DUTY.) In case the reversionary property should devolve under several wills or intestacies before it falls into possession, a cumulative duty is payable in respect of every such will and intestacy (Att.-Gen. V. Malkin, 2 Ph. 64). (Contrast SUCCESSION DUTY.) If any legacy or residue is not wholly satisfied or distributed at once, the duty may be paid on the value of the part from time to time satisfied or distributed, such value to be estimated as the property exists at the time of satisfaction or distribution, and not at the time of the testator's death (Att.-Gen. v. Cavendish, Wightw. 82). (Compare SUCCESSION

LEGACY DUTY-continued. Duty.) If the legacy is a gross sum vesting at once in the legatee, then whether the same be or not given over on a contingency, duty on the whole amount is payable all at once, with an apparent right to be recouped any over-payment in case the gift over takes effect; in which case the legatee over becomes apparently chargeable with the same, and becomes certainly chargeable at the higher rate, if his rate should be higher than that of the first legatee (36 Geo. 3, c. 52, ss. 17, 34) (compare SUCCESSION DUTY); but if the legacy is not a gross sum, but an annuity for life or for years, then, whether the same be or not charged upon some other legacy, and whether the same be or not given over on a contingency, duty is payable on the value only of the annuitant's interest, calculated according to the tables of the Act 16 & 17 Vict. c. 51, and is to be paid by four successive annual instalments, such instalments being payable with the four first successive payments of the annuity itself, with a right to be recouped any over-payment in case the gift over takes effect; but in the case of direction to purchase an annuity, or of a perpetual annuity, the duty is to be paid all at once on the value of the annuitant's interest, calculated as aforesaid (16 & 17 Vict. c. 51, s. 32). (Compare SUCCESSION Duty.) In the case of a legacy producing income to several persons in succession,

(a.) If all the successive legatees are chargeable with the same rate of duty, the whole duty is payable at once for the capital of the fund; and

(6.) If the successive legatees are chargeable with different rates of duty, the duty is to be calculated and paid upon each successive partial interest, in the same manner as if the same were an annuity, and, last of all, upon the ultimate interest (being the absolute interest), in the same manner as if the same were an immediate bequest of the capital (36 Geo. 3, c. 52, s. 12). (Compare SuccessION Duty.) In the case of legatees in joint tenancy, each is chargeable at his own rate of duty in the first instance upon his then share, and afterwards (if it should so happen) upon his accrued share. (Compare SUCCESSION DUTY.) In the case of a legacy of money directed to be converted into land ;

(a.) If the bequest is in fee, the gross amount is chargeable with duty as an absolute bequest; and

(6.) If the bequest is to several successive persons, the interest of each successor until the money is actually invested in real estate is chargeable with duty as for an annuity (36 Geo. 3, c. 52, s. 19), and any person becoming absolutely entitled is

« PoprzedniaDalej »