SECTION VIII. Of the Duty of Executors as to the payment of THE principal doctrines and decisions concerning legacies in general, are treated of in the former * The great legacy act is the 36th Geo. 3. c. 52. which imposes the following duties upon legacies, and bequests of personal property, i. e. upon all legacies of 207. and upwards, and upon all residuary bequests and shares of residues in case of intestacy, of 1007. and upwards. Brother or sister, or their descendants, 2 per cent. Great uncle, or great aunt, &c. Other persons, 3 per cent. 4 per cent. - 6 per cent. This act directs that the duties shall be managed by the Commissioners of Stamps.-The stamp act of the 44th of Geo. 3. c. 98. enacts that all former duties, under the care of the Commissioners of Stamps, shall cease, and in their stead imposes the following duties upon legacies and bequests out of the personal estate, of 201. or more; and upon all residues and shares of residues of 100%. and upwards, i. e. Brother or sister, &c. All other persons, £2 10 per cent. 8 0 By this act, the duties, &c. given by other acts are to cease, but no other parts of such acts are repealed, so that the new duties imposed by it are to be collected and managed in the same manner as the old duties. The new legacy stamps hereby imposed are, therefore, to be collected, managed and computed, by the Commissioners of Stamps, according to the direction of the 36th Geo. 3. By the 45th Geo. 3. c. 28. a duty is imposed on legacies to children, &c. of 1 per cent. and a new duty of 10 per cent. in lega. volume. This section will therefore be confined to the mere duty and office of the executor concerning them. To the duty of the executor, every other claim under the will, as to the personal property of the tes cies to strangers, &c. instead of the duty of 8 per cent. by the 44th Geo. 3. The duties imposed by this act, and by those of the 44th of Geo. 3. are likewise extended to bequests of monies arising from, or charged upon real estates, &c. The 48th Geo. 3. c. 149. repeals the duties granted by the 44th and 45th Geo. 3. but with respect to legacies and residues, imposes the same again as they stood after the 45th Geo. 3. with very little variation. The legacy duties, as they now stand, by the 48th Geo. 3. c. 149. Great uncle or great aunt, and their descendants, 5 0 All other persons, 10 O These duties are imposed upon all legacies of 201. and upwards, either out of the personal or moveable estate, or out of or charged upon the real or heritable estate, or out of any monies to arise by sale, mortgage, or other disposition of the real estate, or any part thereof. Also for the clear residue (when devolving to one person) and for every share of the clear residue, (when devolving to two or more) whether arising from a testamentary disposition, or from a partial or total intestacy, where such residue shall be of the value of 20%. and upwards. And also for the clear residue (when given to one) and for every share of it, (when given to two) of the monies to arise from the sale, mortgage, or other disposition of the real estate, when of the value of 207. and upwards. And all gifts of annuities, or by way of annuity, or of any other partial benefit or interest out of any such estate or effects as aforesaid, are to be deemed legacies within the intent and meaning of the schedule. necessity sent of the executor; and its ef fect. As to the tator, is subordinate. It is his duty to see that the for the as- fund is first applied to the satisfaction of the creditors. No legacy, therefore, takes effect in the legatee, until executed by the assent of the executor; but the assent of one of several executors is sufficient. The personal property devolves first upon him to fulfil his primary duty of paying the debts of his testator. And if, notwithstanding a deficiency of assets, he pays legacies, he makes himself responsi * Com. Dig. Admon. (c. 8.) Out of this act, however, are excepted all legacies, residues, and shares of residues of any such estate or effects as aforesaid, given or devolving to or for the benefit of the husband or wife of the deceased, or to or for the benefit of the Royal Family. And all legacies exempted from duty by an act of the 39th Geo. 3. c. 73. for exempting certain specific legacies given to bodies corporate or other public bodies, from payment of duty. By the 3d section of this act, the new duties are to be under the management of the Commissioners of Stamps, &c. and they are empowered to employ such officers or persons under them, and to do all such other acts and things as shall be thought necessary for carrying the act into execution, in as full and ample a manner, as they or any former commissioners are or have been authorised to do, for the raising or collecting of any former stamp duties, or for putting into execution any act or acts of parliament relating thereto. By sect. 8. the powers and provisions of former acts are to be put into execution with regard to duties under this act. Cases of all persons dying, after the 5th April, 1805, where the legacies, &c. are paid after the 10th Oct. 1808, are included in this act. A principal difference between this and former acts, with regard to the legacy duty is, that the duty imposed upon bequests of the residue, &c. is extended to all cases where the amount is 207. and upwards. Whereas, in former statutes, the duty upon residuary bequests was only imposed where they amounted to 100l. and upwards. ble to the extent of the legacies so paid to the creditors. as to the assent in the cases of general and speci cies. This assent of the executor is equally necessary, Difference whether the legacy be general or specific. And if the effect of legatee, in either case, takes the thing bequeathed, without such assent, he is liable thereby to an action of trespass by the executor. Even if the chattel be fic lega in the hands of the legatee at the time of the testator's death, he cannot retain it against the demand of the executor. If such legacy is payable out of the general funds of the testator, the law will not raise an implied promise on proof of an acknowledgment of assets, so as to enable the legatee to bring an action at law, the reasons of which rule are well expounded in Deeks v. Strutt'. But in the case of the bequest of a specific thing, the assent passes the legal title under the will. The rule is the same, whether the subject of the bequest be a personal or real chattel. And the assent of the executor vests the term, or other specific thing bequeathed, in the legatee, from the death of the testator, by relation". As this interest is vested in the executor for the sake only of other persons, it is compatible with an interest vested in the legatee, which, if he die before the executor's assent, passes to his personal representatives. '5 T. R. 690. Doe d. Lord Saye and Sele v. Guy, 3 East. 120. and see Paramour. Yardley, Plowd. 539. Saunders's Case, 5 Rep. 12. b. Chamberlain v. Chamberlain, 1 Chan. Ca. 256. Bastard v. Stukeley, 2 Lev. 209. Barton's Case, 2 Freem. 289. What amounts to Even the release of a debt by the will of a creditor, and which operates by extinguishment rather than by donation, is so far in the nature of a legacy, that to be complete and effectual, it ought to have the executor's assent. But in all cases, and in the last more especially, a slight expression, or demonstration of assent, is sufficient. The assent of an executor may be inferred from an assent. his acts, and such constructive assent will be as avail able as an assent positively and expressly given. Any recognition of the property, or right of the legatee, amounts to an assent;-as if the executor, in any manner, deals with the legacy as the owner'. If a term of years be devised to one for life, remainder to another, the assent of the executor to the first devise, operates as an assent in favour of the remainder man, and an assent to the remainder is an assent to the preceding estate; for, in legal consideration, they make together but one estate". Nor can the executor give such assent, upon terms which subject it to be withdrawn upon any subsequent event; but he may impose a condition, precedent to the payment of the legacy, though he cannot encumber it with future stipulations: and whenever the assent is given, it must relate to the testator's death, and perfect the title of the legatee, ab initio. An assent to a devise for a lease for years, is also to be considered as an assent to all conditional springing or contingent interests, coupled with it by the devise. 2 P. Wms. 332. 1 Roll. Abr. 620. "Com. Dig. Adm. (c. 6.) 4 Bac. Abr. 445. 2 Vent. 358. Plow. 545. n. 1 1 Roll. Abr. 620. |