embracing devises, legacies, and charitable trusts, and the duties of executors, administrators, and other testamentary trustees

Isaac Fletcher Redfield

Little, Brown, 1866

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Table des matières

SPECIAL FORMS OF PROBATE AND OF LETTERS TESTAMENTARY	lxxvii

PRELIMINARIES TO THE PROBATE	1

No one can justify interfereing with the estate except by letters testa	2

The husbands right to administer on the wifes estate and to hold	3

Uses solely for benefit of donor or for specific purpose where void	5

8 and n 11 Lineal descendants sometimes held to include those descended from a common ancestor 396	8

Setoffs existing before the decease allowed at law others of equitable	9

But if the award be only that the estate is indebted and no finding that representative shall pay he is not so bound 294	10

cussed	467

Funds deposited in bank specifically bequeathed	468

Legacy may be specific in one alternative and general in another	469

All devises of real estate or chattels real are specific	471

Legacies out of the avails of real estate regarded as specific but not so of a mere charge	472

The intention of the testator will have a controlling influence	473

Legacies may be so charged on real estate as to exonerate the per sonal	474

Questions often occur how far residuary bequests are specific	475

11 and n 24 How far representative bound by contracts executed under power by attorney in fact 295	11

Illustration of the rule by devise of a reversionary interest	12

The decisions of the courts of last resort in place of domicile fix suc cession to personalty 906	15

The authority of the executor or administrator is limited to state where	16

Whether one dies intestate as to personalty determined by law	17

The same general presumption prevails where testator has only	18

After payment of debts funds should be remitted to principal adminis	22

SECTION III	26

ViceChancellor Stewarts opinion in favor of immediate vesting 611	29

The degree of certainty required to change the legal intendment as	30

Such a trust with one of two or more joint devisees will avoid the	31

One witness sufficient if he remember all the requisites to valid execu	32

The American cases upon both parts of this chapter presented together 716	33

Devise to executors to sell and pay the avails to devisee creates fee	34

The character of conditions determined by the general intent of tes	36

Where a specific legacy is charged with the payment of debts it will	37

When testators knowledge of contents of will should be proved	38

executors	42

The modes of establishing this proposition Presumptions of survi	43

Discussion of the extent of equity jurisdiction over wills after probate	49

All estates devisable or descendible where there is any present inter	51

Where the word heirs is used with reference to the devisee a	59

An alien may be executor but he must generally be resident	60

The executor of an executor cannot administer in America	66

The husbands right to such personalty vests upon the decease of	67

Grounds of selection by the probate court among those of equal degree	73

Construction of the bequest in regard to the extent of the word orphan	75

SECTION II	79

THE APPOINTMENT AND DUTY OF ADMINISTRATORS	84

Such administrations not effected by statutory limitations upon original	92

Any person interested or who believes himself interested may petition	97

SECTION VIII	100

Administration is often granted for the performance of a single act	101

The use and effect of a caveat filed in the probate court	107

CHAPTER V	113

SECTION III	122

Or in remainder sometimes	127

The residue of an estate pur autre vie after death of grantee not devis	129

SECTION V	135

Any one having custody of will may be cited to produce the same	143

The mode of attaching personalty to the freehold sometimes decides	149

7	154

SECTION IX	163

All papers referred to in will to be deposited in registry of probate	167

If the husband survive the wife he will take her choses in action	179

Upon causes of action accruing to deceased statute of limitations runs	186

SECTION II	190

REVIVING SUITS BY EXECUTOR OR ADMINISTRATOR	196

What choses in action to be inventoried and how	204

THE AUTHORITY OF THE PERSONAL REPRESENTATIVE	206

The primary probate jurisdiction is in the place of the domicil of	207

But where the party making advances is put upon inquiry his title	214

Executor c may indorse bills and notes or sell choses in action	219

Testator may so frame his limitations as to depend upon events as they	221

This should be so regulated as fairly to meet the public demand	224

Probate fees and other charges for administration should be kept low	231

CHAPTER X	249

It would seem that an executor or administrator is not bound by perpet	250

Continuing contracts in the nature of agency terminated by death	256

The responsibility of the assignee or personal representative dis	262

ual covenant to pay rent	265

Where the personal representative prevails in the suit he recovers costs	271

No occasion to appoint receivers to take charge of effects in America	273

The estate of a deceased partner not released until payment or clear	278

Occasions where resort to courts of equity is needful	284

CHAPTER XI	288

If representative undertake to perform an award he is bound person	294

GIFTS MORTIS CAUSA 1 General definitions of such gifts	296

Swinburnes definitions	297

The same subject further examined	298

Enumeration of the requisites to constitute such a gift	299

2 Must be made to take effect only in the event of death	301

3 Must be an actual and continual change of possession to the donce	303

4 Most doubt arises in regard to the delivery of choses in action	305

5 Delivery to a third person for the donee sufficient	306

6 Cash notes were early held good subjects of such gifts	308

7 Never any question that banknotes and government securi ties were also	309

9 Enumeration of the different securities making good gifts mortis causa	312

10 Promissory notes and other contracts of donor not sufficient	313

11 Query how far a deed of chattels is equivalent to delivery	315

Courts of equity will aid the donee	317

Lord Eldons criticisms upon the subject in Duffield v Elwes	318

One may remit a debt by way of gift mortis causa	319

C	320

Right of married women to make or revoke such gifts	321

All gifts made during last sickness presumptively made mortis causa	324

But where trustees decline acting the court supplies others in their	325

The force of the terms begotten or to be begotten may mean	332

The same rule applies to the use of the word grandchildren	338

The same rules of construction apply to other relative terms as neph	344

Children will include those by different marriages	350

Abstract of some of the early cases	357

The English construction often works great injustice	363

The only case which has occurred is in substance the same as the Eng	369

sentation 397	371

The Supreme Court of Pennsylvania adopt the same view	375

rum creates only an estate for life	378

The present state of the English law	385

Difference between bequest to one or heirs or to one or exeси tors c	386

In America real and personal estate go generally to same persons	388

Case in Connecticut where heirs allowed to take as purchasers	389

Similar case in New York Contingent remainders Cases in Maine	391

SECTION V	392

tance here	393

Such bequests were in the early cases often held void for uncertainty	394

In England it has been held to mean the heir of the family	395

tives	405

But these terms often used merely as words of limitation to define the estate given	406

The rule laid down in the latest English edition of Jarman	407

Distinction between estates given direct and after an intervening estate	408

The question always arises in such cases whether the executor takes beneficially	409

This rule often defeats the intention of the testator	410

In Pope v Whitcombe representation admitted General rule all take per capita	411

The half blood take concurrently with the whole blood on a bequest to next of kin	412

Bequests to testators next of kin means next of kin at his death	414

The word then used in fixing the period of the gift over creates	420

The word effects is more general in its operation than the others	425

How far defect of persons answering primary import will affect con	439

It is important to observe whether enumeration in residuary bequests	445

Family used in a more enlarged sense as equivalent to descendants or next of kin 395	446

construction	448

One considered as possessed of what he has contracted for	450

Any error in the description of subjectmatter of bequest readily set right	451

The interest of the mortgagee is merely that of personalty until fore closure perfected	452

Bequest of 500 out of such property as legatee may select will not justify taking real estate	453

Bequest of the amount of a note held to pass the note merely	454

Bequest of copyright how construed 55	455

Devise of a house carries all within the curtilage	456

Bequest of ones share in an estate regarded as specific	457

time of giving	458

Chief Baron Richardss definition of distinction between general and specific legacies	459

Civil Law definition adopted into English law	460

Balance of partnership settlement may be specifically bequeathed	461

Advantages and disadvantages of legacy being specific	462

Sometimes enumerated articles although connected with residuary clause held specific	476

But this cannot be done unless consistent with expressed intent of the will	478

The precise change in the title or estate which will adeem the legacy	479

Formerly courts of equity required security of the tenant for life of goods for the protection of him entitled in remainder	480

Renewal of leaseholds treated as part of the original estate	481

exonerate the residue	482

SECTION VIII	483

The same rule of construction is applied where the payment of a leg	484

acy is postponed	494

A legacy by way of trust will not lapse by the death of the trustee	495

Bequest depending upon contingency may lapse	496

How legacies to the uses of the will of another may lapse	497

Husband and wife take differently under wills from any other two per sons	498

Devise or bequest to a class will not lapse so long as one of the class survives	499

It will make no difference at what time the class is ascertained as to the survivors taking	500

An estate will not lapse because an intervening estate upon which it depends lapses	501

By the present English statute such lapse operates for the benefit of	504

tionary no accumulation	507

Illustration of the point by the case of Greenwood v Greenwood	510

14 and n 21 Evidence to place court in position of testator admissible	513

Legacy to child presumably in satisfaction of debts by way of advance	520

The subject of less importance here but not wholly unimportant	525

Locality in a bequest may be referred to as a limitation or as a mode	528

d	529

Stock specificially bequeathed is adeemed by any voluntary change	531

Bequest of terms for years may refer exclusively to date of will	534

The cases referred to by and the views of Sir James Wigram	540

Lord Chancellor Cottenhams exposition of the rule as to standing	544

Instances where apparent considerations not held sufficient	547

child born after the making of the will	555

SECTION XVII	564

The bequest of the residue carries such income as the fund actually	570

appointed guardian 574	573

But courts of equity will require the husband to secure the support	579

PART II	585

same time with the other	590

The cases upon this point stated 613	591

PART II	597

15 and n 70 Attempts to limit the extent of these gifts have not proved successful 322	602

Sir William Grant construed all similar gifts in favor of vesting	614

The general rule in regard to a devise over to a class is that it is con	621

The American cases are numerous but follow the lead of the English	629

The same is true in the State of New Hampshire Late cases stated	637

Such estate must continue until the vesting of that in remainder	642

The law against perpetuities applies to personal estates in succession	643

Bequest to widow for life and then to children creates vested interest	648

Equity will require the tenant for life to furnish inventory will decree	654

can States	656

So also in regard to remoteness and the effect of estate over being void	657

An executory devise may take effect in futuro without an intermediate estate	658

An executory devise over cannot be limited upon absolute devise to the first taker	659

The American cases hold any restraint upon the use or alienation of	661

Where condition is in the nature of a consideration it is held precedent	662

Conditions that devisee do a particular act or abstain held precedent	663

But conditions subsequent becoming impossible or illegal do not defeat the estate	664

Where the estate is personal no distinction between conditions prece dent and subsequent	665

Devises in fee incumbered by conditions against alienation or use of the estate	666

Bequests of personalty affected the same as those of realty by conditions against use or alienation	667

There is no doubt property may be bequeathed for the sole use of	669

Statement of what conditions restraining marriage are valid	676

SECTION IV	687

Sir J Romilly favors that view to some extent	695

2 and n 3 The basis of the present American law found in the early	701

But where the devise gives a power of sale if devised without consid	702

But if the charge be upon the land merely it will not have that effect	705

The courts seize any plausible excuse to rescue particular cases from	708

The word reversion will pass a fee but not the words residue	714

Devise over without words of inheritance carries only lifeestate	718

The general rules of the common law upon this subject prevail in Massachusetts	719

A devise will be construed to carry such an estate as is requisite for the object	720

Discussion of the rule in Shellys Case as applied in America	721

Discussion of the question in two cases in Vermont	722

Statement of the decisions in Connecticut upon this point	723

The rule qualified in Pennsylvania by the courts and in New York by statute	726

The Connecticut courts favor the construction of general devises giv ing a fee	728

Statement of other cases confirming the general rules before stated	729

Other cases illustrating the same question	730

Clear lifeestate in personalty enlarged by absolute power of disposition	731

General intent may create an estate in fee without words of limitation	732

But where an aliquot portion of the whole estate is so devised the first deviseę takes only a lifeestate	733

Devise of farm or the proceeds of its sale creates a legacy to	735

reversion or equity	736

The heir not bound to elect by an imperfectly executed will	744

any share	748

The widow here may hold under the will and claim dower unless clearly repugnant	749

The general devise of an estate carries an implied exception of dower	750

Renunciation under the will only extends to the particular benefit	751

The acceptance of the provisions of the will presumed because more beneficial	752

The widow may claim her share in undisposed of personalty while excluded from dower	753

The widows right of election is personal and not transmissible by de scent	754

The doctrine of election as held in Pennsylvania	755

This view confirmed by the opinion of Lord Eldon	757

The foregoing propositions illustrated by case of Crowder v Stone	758

The courts still resort to this construction to carry out the clear intent	762

Court will select a trustee most interested in carrying forward	767

Gift of the surplus to donee carries any increase or income 798	768

English statutes in regard to superstitious uses	769

Bequests for the support of the interests of the testator not regarded	771

Objects of charitable trust not confined to the poor exclusively	777

The policy of the early English cases and statutes was favorable	783

It is now clear that equity had jurisdiction of charitable uses	802

Some of the American courts go great lengths in carrying charitable	809

provided 592	816

Indefiniteness is the peculiarity which distinguishes charitable trusts	817

The distinction between charities administered in chancery and by	823

control	827

Chancellor Kents definition of the extent of charitable trusts	828

The rule as defined in Storys Equity Jurisprudence	829

The English courts of equity have declined to maintain indefinite trusts not exclusively charitable	830

Objects of charity may be selected by trustees in Connecticut	831

Trusts and especially charitable ones do not come within statutes of limitations Not barred by lapse of time	832

Of great importance in removing doubts as to true construction	833

Long contemporaneous usage cannot be disregarded except on clearest proof	834

This rule may determine the application of any surplus income	835

The same rule applied in New Hampshire	836

CHAPTER XVI	837

3 ch 98	838

Trusts for accumulation beyond the allowed term void before the stat ute but since only for the excess	839

2 Avoiding the accumulation does not hasten the vesting of the estate L	840

The payment of premiums of life policies does not necessarily amount	841

Devise to unborn persons valid and may be so framed as to vest	844

Illustrations of the preceding rule	847

CHAPTER XVIII	852

3 Real estate descended to the heir	867

The question as between a specific devisee of real estate and real estate	873

Judge Hares statement of the rule Exceptional cases in America	878

The rule as laid down in Connecticut and by Mr Justice McLean	880

The cestui que trust may follow the fund into the hands of third par	884

Nothing allowed trustees in England by way of commissions	891

CHAPTER XXI	901

the share of such child	908

Ordinary expenses not advancements but premium for apprentice ship is	909

Abstract of some of the cases in this state upon the point	910

Expressions et termes fréquents

accruing adeemed ademption Admr American courts ancillary administration Appeal appointment assets Beav bequeathed bequest bond Bradf cause of action Chancellor chattels choses in action cited claim construction contingent court of equity courts of probate coverture creditors death deceased decree donatio mortis causa ecclesiastical courts emblements English courts English statute entitled executor or administrator Exrs favor gift granted ground heir held husband intention interest intestate inventory issue Jarman jurisdiction lapse legatee letters testamentary liable limited Lord Lord Eldon mortis causa party payment Penn personal estate personal representative personalty portion possession presumption probate court proof question real estate regard remainder residuary residue rule seems settled settlement Smith specific legacy statute of distributions survive survivorship take effect tenant term testator's tion trust unless Vesey vested wife wife's witnesses words

Fréquemment cités

Page 365 - Bequest shall not lapse, but shall take effect as if the Death of such Person had happened immediately after the Death of the Testator, unless a contrary Intention shall appear by the Will.

Cité dans 461 livres de 1830 à 2006

Page 335 - Where there is nothing in the context of a will from which it is apparent that a testator has used the words in which he has expressed himself in any other than their strict and primary sense, and where his words so interpreted are sensible with reference to extrinsic circumstances, it is an inflexible rule of construction that the words of the will shall be interpreted in their strict and primary sense, and in no other, although they may be capable...

Cité dans 85 livres de 1835 à 2000

Page 724 - When the ancestor, by any gift or conveyance taketh an estate of freehold, and in the same gift or conveyance an estate is limited, either mediately or immediately to his heirs In fee or in tail .... the heirs are words of limitation of the estate and not words of purchase", and by Preston on Estates (Vol.

Cité dans 103 livres de 1790 à 1999

Page 165 - Whenever the death of a person shall be caused by wrongful act, neglect, or default, and the act, neglect, or default is. such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof...

Cité dans 392 livres de 1843 à 2007

Page 775 - Majesty, and her most noble progenitors, as by sundry other well-disposed persons: some for relief of aged, impotent and poor people, some for maintenance of sick and maimed soldiers and mariners, schools of learning, free schools, and scholars in universities, some for repair of bridges, ports, havens, causeways, churches, seabanks and highways, some for education and preferment of orphans...

Cité dans 172 livres de 1809 à 2007

Page 896 - Territory, or any personal property or interest therein, transferred by deed, grant, bargain, sale, or gift, made or intended to take effect in possession or enjoyment after the death of the grantor...

Cité dans 353 livres de 1778 à 1999

Page 881 - ... exercising reasonable care and diligence, will not be responsible for the failure or depreciation of the fund in which any part of the estate may be invested, or for the insolvency or misconduct of any person who may have possessed it, yet if that line of duty be not strictly pursued, and any part of the property be invested by such personal representative in funds or upon securities not authorized, or be put within the control of persons who ought not to be...

Cité dans 48 livres de 1842 à 1996

Page 165 - ... and the act, neglect, or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured, ami although the death shall have been caused under such circumstances as amount in law to felony.

Cité dans 440 livres de 1847 à 2007

Page 897 - ... the person or persons entitled to any beneficial interest in such property...

Cité dans 137 livres de 1856 à 1966

Page 293 - g reements (1677) no action shall be brought whereby to charge any executor or administrator upon any special promise to answer damages out of his own estate...

Cité dans 443 livres de 1804 à 2007

Informations bibliographiques

Titre	embracing devises, legacies, and charitable trusts, and the duties of executors, administrators, and other testamentary trustees Partie 2 de The Law of Wills, Isaac Fletcher Redfield
Auteur	Isaac Fletcher Redfield
Édition	2
Éditeur	Little, Brown, 1866

Exporter la citation	BiBTeX EndNote RefMan

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