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CH. II.

payable (1); hence it frequently happens that the time Part III. from which interest is payable is identical with that from which the statute begins to run; but it appears to be erroneous to treat the fact of interest beginning to run as a test of the legatee having a present right to receive the legacy within the meaning of the statute (2). An executor cannot, it seems, be compelled to pay a legacy before the expiration of a year, even if so directed in the will (3); time will, therefore, it seems, in no case run before that period has elapsed, even where, as in the case of a legacy by a parent or in discharge of a debt, interest will be allowed from the testator's death (4). Where a legacy was so given that interest on it was payable to the legatee during his life, but it was doubtful whether the gift was absolute, except in the event of his death without issue, it was held that time did not run during his life, although he had a right during that time to compel the executors to pay the money into Court (5). . In the case of an annuity bequeathed by will a present Bequest of

annuity. right to receive can only arise as to each periodical payment at the time at which such payment becomes due, and hence it would seem that the time must be reckoned separately with regard to each payment. Wood, V.-C., in the case of Ashwell's Will (6), which arose under 3 & 4 Wm. IV. c. 27, s. 40, spoke of the entire annuity as one legacy, and the yearly payments as part payments of the principal of such legacy (7), and seems to have considered that if no payment were made for twenty

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(1) See Williams on Executors, 8th ed. 1430, et seq., and cases referred to.

(2) Earle v. Bellingham (No. 2), 24 Beav. 450; but see Hornsey Local Board v. Monarch Investment Building Society, 24 Q. B. D. per Lindley, L.J. p. 10.

(3) See Williams on Executors, 8th ed. 1393, and cases referred to.
(4) See Williams or. Executors, 8th ed. 1430, and cases referred to.
(5) Lord v. Lord, 3 Jur. N.S. 485.
(6) Johns. 112, 117.
(7) See post, Chapter IV.

CH. II.

Part III. years, the annuity would be extinguished; but the

question whether an annuity charged on land is extinguished will depend upon the 3rd section of 3 & 4 Wm. IV.c. 27 and the 2nd section of 37 & 38 Vict. c. 57; where, however, there is a bequest of an annuity payable out of personalty only, as in the case referred to, there is no more ground for holding it to be absolutely barred by non-payment for twenty years than in the case of an annuity secured by bond or covenant, and in fact twelve years' arrears of an annuity, given by will and payable out of personalty only, may be recovered at whatever time the suit is brought for the purpose (1).

) Case of a On the question when time begins to run against residuary legatee.

a residuary legatee, in the case already mentioned of Prior v. Horniblow (2), Alderson, B., speaking in general terms, seemed to consider it as “the time when the

, residuary legatee is capable of ascertaining what is the clear residue and requiring payment of the amount;” this, it is submitted, is in ordinary cases at the end of the year after the testator's death (3). It is, however, obvious that a residuary legatee may have a right to require the payment to him of part of the assets at one time and part at another. If, for instance, a sum has been set apart to satisfy an annuity, the residuary legatee has no right to the sum until the annuity ceases, and, so long as the annuity lasts, time will not begin to run as against the right to obtain payment of that sum (4). Lord Romilly, M.R., in deciding this point, says: “In every case where a fund is set apart to satisfy an annuity, there is a trust of the fund set apart in favour of the residuary legatee, however long the annuity payable out of it may have lasted. If a sum of £1000

(1) Roch v. Callen, 6 Hare, 531. See Dower v. Dower, 15 L. R. Ir. 264.

(2) 2 Y. & C. Ex. 200, 206.

(3) But see Hornsey Local Board v. Monarch Investment Building Society, per Lindley, L.J., 24 Q. B. D. p. 10.

(4) Bright v. Larcher, 27 Beav. 130, 135.

CH, II.

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Consols was set apart to satisfy an annuity of £30 a year, Part III. and the annuitant lived thirty or forty years, there can be no question but that the £1000 would on the death of the annuitant belong to the residuary legatee, it having been set apart for that particular purpose.” It is submitted that Lord Romilly is inaccurate in speaking of a trust in favour of the residuary legatee, and that when a sum is set apart to satisfy an annuity which is simply given generally, the case is quite different from that of a sum bequeathed to the executors in trust to pay the dividends to one for life, and subject thereto upon trust for the residuary legatee, and is not within the principle of the decision in Phillipo v. Munnings (1), and that the residuary legatee would under 3 & 4 Wm. IV. c. 27, s. 40, be barred twenty years, and now, under 37 & 38 Vict. c. 8, will be barred twelve years after the annuity ceases. The mere existence of an annuity for a long period General

right to cannot keep alive the right of a residuary legatee to a adminisgeneral account and administration of the testator's tration. assets; this is a right which may clearly be distinguished from the right to recover particular assets. As against the general right to administration time runs from the end of the year after the testator's decease, but as against the right of the residuary legatee to assets in the executor's hands which are properly set apart for purposes taking effect in precedence of the right of the residuary legatee, time begins to run when such purposes fail, and not before, as till that time the residuary legatee cannot be said to have a present right to receive the assets in question (2).

As to the right of a residuary legatee to recover particular assets which have actually come into the executor's hands (as distinguished from a general right to adminis

(1) 2 Myl. & C. 309. See ante, p. 171.

(2) See In re Johnson. Sly v. Blake, 29 Ch. D. 964. Ludlam. Ludlam v. Ludlam, 63 L. T. 330.

In re

CH. II.

Part III, tration), time does not begin to run against the residuary

legatee till the assets have come into the executor's hands, however long a period may have elapsed since the testator's death; and a residuary legatee has similarly at any time a right to an inquiry whether any assets of the testator have come into the executor's bands within twelve years of the bringing of the action (1). In following the decisions which establish these points a distinction may be drawn between funds reversionary or contingent or of a like nature falling into the estate within the twelve years, on the one hand, and such funds, on the other hand, as the residuary legatee might have compelled the executor to get in before the expiration of that period; and the Court would be guided by the principle on which, without reference to any statutory limitation to the time of giving relief, it always refuses assistance to persons who have long slumbered on their rights or otherwise been guilty of acquiescence, a principle with which it is expressly declared by 3 & 4

Wm. IV. c. 27, s. 27, that Act is not to interfere Legatee's A further question may be raised whether after the right to compel

expiration of thirteen years from the testator's death the executor to statute will bar the legatee's right to compel the executor

to get in for the legatee's benefit assets coming into existence within twelve years from the bringing of the action. This point seems quite an open one; and as to reversions and contingent estates falling in, it is perhaps not very material, as in many cases the residuary legatee would be able to commence a suit against the parties in whose hands the funds were. If the testator were the obligee of a bond upon which a right of action did not accrue till upwards of thirteen years after the testator's death, the residuary legatee could not, it seems, get at

get in

assets.

(1) Adams v. Barry, 2 Coll. 285. Binns v. Nichols, L. R. 2 Eq. 256; 35 L. J. Ch. 635; Reed v. Fenn, 35 L. J. Ch. 464. In re Johnson. Sly v. Blake, 29 Ch. D. 964. In re Ludlam. Ludlam v. Ludlam, 63 L. T. 330.

CH, II.

the money except by compelling the executor to sue and Part III. account for it. It would seem that in such a case the residuary legatee cannot properly be said to have a right to receive within the meaning of the Act until the bond debt becomes payable.

The cases decided on the points above discussed with General reference to residuary bequests may assist in the solution pecuniary of similar questions arising with regard to general pecuniary legacies, as to which it is believed there is less authority. It must, however, be borne in mind that there is a difference between the right of a residuary legatee and that of a pecuniary legatee, since the former has, subject to the rights of creditors and legatees, a right to have every specific fund or property forming part of the estate transferred to him; whereas the latter has, subject to the rights of creditors and other legatees, a right when the legacy becomes payable to have the amount of his legacy raised and paid out of any funds forming part of the estate. From the above considerations it is submitted that the following observations are probably correct. Until there are assets applicable in due course of administration to the payment of a legacy, the legatee cannot be said to have a present right to receive it, although it may have become payable before (1); but if there have once been assets sufficient for the payment of the legacy, when the right of the legatee as against those assets is barred, it is also barred as against all other assets subsequently becoming applicable.

By assets applicable for the payment of the legacy Time will are meant not merely assets in the hands of the executors but assets which could be got in and so applied, for the assets for legatee has a right to compel the executor to get in such assets and account for them. The only case bearing legacy.

not run till there are

the pay

ment of the

.

(1) Faulkner v. Daniel, 3 Hare, 199, 212; see Ravenscroft v. Frisby, 1 Coll. 16, 23.

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