There appeared also the fact that Mr. Bonard combined with his ardent love of animals an unbounded admiration for the benevolence of Mr. Henry Bergh. Memoranda were found among his papers which plainly showed he had some ulterior purpose concerning that gentleman. On the 11th of February, 1871, and while he was very ill, he made a will, bequeathing a portion of his property to two of his friends. On the 13th he made another, revoking the former, and left all his estate, real and personal, to the Society for the Prevention of Cruelty to Animals, of which Mr. Bergh was then, as now, the honored president. Here was a case, bold in its outlines, and presenting the salient features of a dogma of a heathen creed, constituting the avowed belief of a man who was born and who died in the Catholic faith. The opinion of the learned Surrogate is very able and interesting. He declares that the belief which Mr. Bonard held did not constitute insanity; that “if a court is to ascribe insanity to a man, or a class of men, constituting a sect according to his or their opinion or belief as to a future state, the logical deduction would necessarily be, that a major portion of all mankind, comprised in all other and different sects, were of unsound mind, or monomaniacs on that subject.” The learned Surrogate then proceeds to consider the facts of this case, not as presenting one of general insanity, but as one in which the only appearance of unsoundness of mind consisted in the alleged monomania concerning the transmigration of souls. But he adverts to the fact that there was no connection necessarily of this belief with the terms of the will—that there was nothing in the will to show that he held the opinions alleged any more than he was impressed with a belief in utter annihilation after death; nor was there any testimony to associate any provision of the will with a belief respecting the future condition of the human soul. These considerations, coupled with the further fact that “the testator had neither wife nor child, father nor mother, nor any known, near, or remote relatives living, or others on whom he was or felt himself under obligation to bestow his property,” induced the court to sustain the will and overrule the allegation of mental incapacity.

But let us suppose that, actuated by this belief, so uncommon in the present day, Mr. Bonard, having before his mind the fate of an itinerant cur running around the city, yelled and hooted at by idle lads, or stunned by a policeman’s baton, had feared that his soul after death might pass into the body of such a hapless vagrant, and, under the impression of this possible fate, had provided a safe asylum where such unfortunates might find shelter from the pelting storm; and still further, that there were relatives who would appear and contest the will. Then we introduce quite a different and a new element into the consideration of the case.

This would have indicated that the dispository provisions were intended by the testator for his own physical comfort and benefit in another sphere of physical existence, and would have furnished one and the principal element of that quality of unsoundness of mind which the law recognizes as such in cases of disputed wills.

A late case in New York, decided in June, 1875, by the Surrogate, is another illustration. This was the case of the will of Harriet Douglas Cruger, made when the decedent was seventy-nine years of age, and in which she disposed of the bulk of her very large estate to the American Bible Society, and the Board of Foreign Missions of the Presbyterian Church. The history of the lady’s life is an eventful and interesting one. Belonging to a family of wealth and standing, possessed of a large private fortune, and endowed by education and training with rare personal and mental accomplishments, she married early in life, and met with disappointment and misfortune; for it was soon followed by a separation, and a law suit which continued for over eight years, between herself and her husband. She had some nephews and nieces, to whom, at one time, she expressed an intention of leaving her property. In the year 1866, she suffered an injury which affected her mind, and then, at times, was undoubtedly a raving, excited lunatic. Her pastor, the Rev. Dr. Paxton, and her physician, Dr. Parker, testify to her condition then as one of undoubted lunacy. She had on her mind a delusion that the devil was bodily present under her bed, and because of this was in the greatest anxiety and terror. She told her pastor of it, and further communicated to him her intention to give, as a means for her soul’s salvation, the most of her property to the religious and charitable societies of her church. He very prudently dissuaded her from this, properly instructing her that her salvation could not depend on such an act, and endeavoring to reason her out of her delusion, but to no purpose. In the fall of 1867, a will was prepared by Charles O’Connor, who was deceived as to her condition, giving her property to the societies named. The will was contested, and rejected, according to the established rule, that her insane delusion, acting on her mind at the time, affected the disposition of her property, and her will was clearly the offspring of such a delusion.

In the case of Austen v. Graham,[97] the testator was a native of England, but had lived in the East, and was familiar with Eastern habits and superstitions, and professed his belief in the Mohammedan religion. He died in England, leaving a will, which, after various legacies, gave the residue to the poor of Constantinople, and also towards erecting a cenotaph in that city, inscribed with his name, and bearing a light continually burning therein. The court pronounced the testator to be of unsound mind, principally upon the ground of this extraordinary bequest, which sounded like folly, together with the wild and extravagant language of the testator, proved by parol. But on appeal it was held that as the insanity attributed to the testator was not monomania, but general insanity, or mental derangement, the proper mode of testing its existence was to review the life, habits, and opinions of the testator, and on such a review there was nothing absurd or unnatural in the bequest, or anything in his conduct at the date of the will indicating derangement, and it was therefore admitted to probate.

Section 3.—Senile Dementia.

The imbecility and feebleness of mind resulting from extreme old age is another cause of testamentary incapacity. Not that the law fixes a limit beyond which it is presumed a testator cannot exercise the testamentary disposition of his property intelligently; but it takes into account the well known, familiar instances of the loss of a person’s memory and mental capacity, owing to the decrepitude of old age, and it accepts evidence in those instances where senile decay is alleged, as to the ability of an aged person to rightly and understandingly make his will. It was said, in a case in the Ecclesiastical Court in England, that “extreme old age raises some doubt of capacity, but only so far as to excite the vigilance of the court.”[98]

But if a man in his old age becomes a very child again in his understanding, and becomes so forgetful that he knows not his own name, he is then no more fit to make his testament than a natural fool, a child, or a lunatic.[99]

Courts are not disposed to accept every statement regarding the eccentric or weak movements of an old person as incapacitating such a one from making a will; on the contrary, there is every disposition to permit such a one, if not unmistakably enfeebled in intellect, or unduly influenced, to exercise a right that throws around one, at such a period, a dignity and power entitling them to the respectful regards of those who otherwise might not bestow upon them the attention due to the helplessness of old age. Chancellor Kent well expressed this leaning of courts, in the case of Van Alst v. Hunter.[100] He says: “A man may freely make his testament, how old soever he may be.... It is one of the painful consequences of old age, that it ceases to excite interest, and is apt to be left solitary and neglected. The control which the law still gives to a man over the disposal of his property is one of the most efficient means which he has, in protracted life, to command the attention due to his infirmities. The will of such an aged man ought to be regarded with great tenderness, when it appears not to have been procured by fraudulent acts, but contains those very dispositions which the circumstances of his situation and the course of the natural affections dictated.”

In the case of Maverick v. Reynolds,[101] it appeared that Mrs. Maverick, at the time of making the will offered for proof, was ninety years of age, and the probate was contested on the ground of testamentary incompetency and undue influence. It was shown that though the old lady did not remember the decease of her son and his wife, that she had sufficient intelligence to inquire about a certain one of her houses, its repairs, and the collection of the rent. One witness stated, as instances of her bad memory, that she forgot to pay her a dollar she had borrowed (a defect of memory not confined to old age); that she was in the habit of making statements, and afterwards denying she had made them, (not confined to old age, by any means) and that she would repeat the same questions after they had been answered. As an instance of the popular belief as to the capacity of old age, one witness said: “She had a bad memory; she was like other old people eighty years old; we consider them childish.” Another witness, a lady, testified: “As long as I can bring my memory to bear, (a considerable time, it appeared) she has been childish. In my opinion, she was childish twenty-five years ago. She would sing childish and foolish songs, and tell foolish stories, which I considered unbecoming for a woman of her years, and the people would all laugh at it. She would talk sometimes of getting married, and would fancy she was making ready to be married.” Against all this was the testimony of her pastor, Rev. Dr. Berrian, that her conversation was devout and pertinent, and he considered her a rather remarkable person for her age. Her physician also testified that he never observed any indication of unsound mind.

Surrogate Bradford, in an able opinion, examined the evidence carefully and at length, and came to the conclusion to admit the will to probate. About her levity, he remarks: “It is worthy of remark, that persons attaining great age often possess a large degree of that cheerful and lively manner which characterizes youth, and which probably in them contributes greatly to a green old age, when others, not so old, and possessing less of this sprightliness and vivacity, appear more decrepid and stricken in years.”

As a principle of such cases, he announces: “Great age alone does not constitute testamentary disqualification, but, on the contrary, it calls for protection and aid to further its wishes. When a mind capable of acting rationally, and a memory sufficient in essentials, are shown to have existed, and the last will is in consonance with definite and well settled intentions, it is not unreasonable in its provisions, and has been executed with fairness.”

Section 4.—Coverture.

The incapacity arising from coverture is to a great extent removed, and is gradually disappearing by remedial legislation, and for this reason it will not be necessary to treat of it at much length.

There has been a tendency, for many years past, to remove the various property disabilities attaching to a married woman, and which were only to be justified, if then at all, by quite a different state of social organization from the present. Perhaps in no branch of the law have there been so many radical changes as in that part pertaining to the status of a married woman. A lawyer who had only in his mind the old common-law theory and rules, and had neglected to make himself familiar with modern legislation on this subject, would find himself strangely bewildered to define a married woman’s rights and powers at the present time.

Still, testamentary power did not come as soon as other rights. Even when the right to a separate and independent ownership of property was granted, the right to a testamentary disposition did not accompany it; as, for instance, in the State of New York, the right to retain for her own use any personal or real property coming to her during marriage, free from any control of the husband, was granted in 1848, but it was not until the next year she was empowered to dispose of it by will.

Married women were excepted from the Statute of Wills of the reign of Henry VIII, which first allowed the disposition of real estate by will in England; but they frequently exercised testamentary disposition under a power given them when an estate was conferred upon them to their separate use.[102]

They had what was called a power of appointment by will, given by the donor of the estate, who was presumed to make the will through them as an instrument.

They could only make a will of personal property by the consent of the husband under the old law,[103] and this is the case yet in a few States. In Massachusetts, a married woman can dispose of only half of her personal property by will without the consent of her husband;[104] and some such restriction exists in many of our States.

The law of the American States in regard to the separate estate of the wife being exclusively under her control, and subject to any disposition on her part, is fast verging towards the rules of the Roman civil law, which allowed a married woman the same testamentary capacity, in all respects, as a feme sole.[105] In most of the more important and commercial States, the wife’s right to dispose of her estate by will, both real and personal, is recognized to the fullest extent by statute.[106] The only general restriction is, that she cannot defeat, in her will of her real estate, her husband’s right of curtesy. In some States, where the estates by dower and curtesy are abolished, this restriction, of course, cannot exist, as, for instance, in California.

In New York, the power to dispose of her separate real estate by will seems to be unrestricted, for there is no limitation mentioned. But opinions differ on this question: some hold that the husband’s right of curtesy is not cut off by the statute, while others hold that the whole unrestricted disposition of her property is given, and that she can defeat her husband’s curtesy, even if issue be born and the estate become vested. The matter is in a little uncertainty, because we have not as yet an authoritative opinion of the highest court on the subject, since the remedial statutes were passed. We are inclined to think, however, that the wife can defeat her husband’s right of curtesy by a disposition of her estate by will.[107]

It would be impracticable to give the various statutes of the States on this subject, and, besides, it would be useless, as the changes are very frequent, and what would be correct for a State today may to-morrow be obsolete; we have only endeavored to give some general information on the subject.

CHAPTER IV.

Of legacies, there are two kinds—a general legacy, and a specific legacy; with the former is classed what is termed a pecuniary legacy. A legacy is general when it is so given as not to amount to the giving of some particular thing, or money, belonging to the testator. A legacy is specific when it is a bequest of a specified part of the testator’s personal estate, which may be distinguished from all others of the same kind. Thus, for example, “I give a diamond ring” is a general legacy, which may be satisfied by the delivery of any ring of that kind; while “I give the diamond ring presented to me by A” is a specific legacy, which can only be fulfilled by the delivery of the identical ring mentioned; for the object is accurately referred to and described, and the legacy can only be satisfied by a delivery in specie.[108]

Again, if the testator have many brooches and horses, and bequeath “a brooch” or “a horse” to B, in these cases it is a general legacy; for it is uncertain, from the description, whether any particular brooch or horse was intended; so that the bequest may be satisfied by the delivery of something of the same species as that mentioned.[109] But a bequest “of such part of my stock of horses as A shall select, to be fairly appraised, to the value of $800,” or “of all the horses which I may have in my stable at the time of my death,” is specific.[110]

A bequest to a wife in the following words: “I give and bequeath to my wife, A, the annual sum of £300 sterling each and every year during her natural life, in order that she may live in quiet and easy circumstances,” and which, with other legacies afterwards given to her, was expressed to be in lieu of dower, was held to be specific.

If there be an error in the description of the chattel intended to be specifically given, the mistake may be of such a nature as not to permit a failure of the specific bequest. If, therefore, A, having one horse only, which is white, bequeath it to B by the words “my black horse,” the mistake is obvious and easily remedied, and the legatee will be entitled to the specific horse, although it be not of the color described; for there can be no doubt of that being the horse intended for him, and the legacy will be specific.[111] If the testator had two white horses of different values, and, intending one of them in particular for B, bequeathed it to him by the words, “my white horse,” it is presumed that evidence is admissible to show which of the two horses was intended.[112]

As respects the doctrine of specific bequests, the intention of testators upon this subject, as in every question of the construction of wills, is the principal object to be ascertained; and it is, therefore, necessary that the intention be either expressed in reference to the thing bequeathed, or otherwise clearly appear from the will. The intention must be clear, and courts in general are averse to construing legacies to be specific.[113]

With respect to legacies for money, securities for money, debts, etc., under some circumstances even pecuniary legacies are held to be specific, as of a certain sum of money in a certain bag or chest;[114] or of £200, the balance due the testator from his partner on the last settlement between them;[115] but a legacy of “£400 to be paid to A,” in cash, is a general legacy.[116]

Stock or government securities, or shares in public companies, may be specifically bequeathed, where, to use the expression often applied, there is a clear reference to the “corpus” of the fund. Thus, the word “my,” preceding the word stock or annuities, has been several times adjudged sufficient to render the legacy specific; as where the bequest is of “my capital stock of £1,000 in the India Company’s stock.”[117] So a bequest of all the testator’s right, interest, and property in thirty shares of the Bank of the United States of America is a specific legacy.[118]

The distinction between these two sorts of legacies is of the greatest importance; for, in the settlement of an estate by executors or administrators, articles not specifically bequeathed are first to be sold to pay debts and other legacies; and, if there be a deficiency to pay debts, the general or pecuniary legatees have first to abate ratably, or contribute in proportion to the value of their individual legacies.[119] The principle on which this is done is, the presumed intention of the testator to give a preference to those legatees, by severing particular parts of his personal estate from the rest. But another distinction between them is, that, if the particular thing bequeathed happens, during the lifetime of the testator, to become extinguished, or in some way disposed of by him, which, in law, is called an ademption, the legacy fails, which cannot be the case with a general legacy; so that, though specific legacies have, in some respects, the advantage of those that are general, yet, in other respects, they are distinguished from them to their disadvantage.[120]

The bequest of all a man’s personal estate generally is not specific; the very terms of such a disposition demonstrate its generality.[121] But if a man, having personal property at A and elsewhere, bequeath all his personal estate at A to a particular person, the legacy is specific; and, if there is a deficiency of assets to pay other legacies, such a legatee shall not be obliged to abate with the other legatees.[122] So, where the testator bequeaths the residue of all his personal estate in the Island of Jamaica, this is a specific legacy.[123]

It has been held in Pennsylvania that a pecuniary legacy may be exempt from abatement, as in the case of a wife or child destitute of other provision, or where a legacy is given in lieu of dower.[124]

Section 2.—Legacies Vested or Contingent.

A legacy is said to be vested when the right to it, either in the present or in the future, is absolutely given to a person, and does not depend upon the happening of some event. It is contingent, if the payment of it is dependent upon the happening of some event; as, if a person shall marry, or attain a certain age. The cases establish the principle that contingent or executory interests, though they do not vest in possession, may vest in right, so as to be transmissible to the executors or the administrators of the party dying before the contingency on which they depend takes effect; but where that contingency is the endurance of life of the party till a particular period, the interest will obviously be altogether extinguished by his death before that period.[125]

The general principle as to the lapse of legacies by the death of the legatee may be stated to be, that if the legatee die before the testator’s decease, or before any other condition precedent to the vesting of the legacy is performed, the legacy lapses, and is not payable to the executors or the administrators of the legatee.[126] But this general rule may be controlled by the manifest intention of the testator appearing upon the face of the will, that the legacy shall not lapse, and by his distinctly providing a substitute for the legatee dying in his lifetime.

The authorities appear to have settled that a testator may, if he thinks fit, prevent a legacy from lapsing; though, in order to effect this object, he must declare, either expressly or in terms from which his intention can with sufficient clearness be collected, what person or persons he intends to substitute for the legatee dying in his lifetime.

In ascertaining the intention of the testator, in this respect, the courts of equity have established two positive rules of construction: 1. That a bequest to a person payable, or to be paid, at or when he shall attain twenty-one years of age, or at the end of any other certain determinate time, confers on him a vested interest immediately on the testator’s death, as debitum in præsenti solvendum in futuro, and transmissible to his executors or administrators; for the words payable, or to be paid, are supposed to disannex the time from the gift of the legacy, so as to leave the gift immediate, in the same manner, in respect to its vesting, as if the bequest stood singly, and contained no mention of time. 2. That if the words payable, or to be paid, are omitted, and the legacies are given at twenty-one, or if, when, in case, or provided, the legatees attain twenty-one, or any other future definite time, and make the legatee’s right to depend on his being alive at the time fixed for its payment, consequently, if the legatee happens to die before that period arrives, his personal representatives will not be entitled to the legacy.[127]

The application of this rule was well illustrated in the case of Patterson v. Ellis,[128] and the doctrine discussed and maintained in an opinion by Chief Justice Savage, in the Court of Errors, in New York. It was there held, that where the gift of a legacy is absolute, and the time of payment only postponed, as where the sum of $1,000 is given to A, to be paid when he shall attain the age of twenty-one, the time not being of the substance of the gift postpones the payment, but not the vesting of the legacy; and if the legatee die before the period specified, his representatives are entitled to the money. But where the legacy is given when the legatee shall attain the age of twenty-one, or provided he attains that age, time is of the substance of the gift, and the legacy does not vest until the contingency happens.

But even where the legacy is given when the legatee attains the age of twenty-one, if the devisor directs the interest of the legacy to be applied, in the meantime, for the benefit of the legatee, there being an absolute gift of the interest, the principal will be deemed to have vested.[129] The giving of interest before the payment has been considered as evidence of an intention to vest the legacy. Hence, when a portion was devised to a child with interest, but not to be paid or payable until the child should attain twenty-one years, or be married, and the child died under twenty-one, and unmarried, it was decreed that the portion should go to the administrator of the child.[130]

The rule with respect to the vesting of legacies payable out of real estate is somewhat different. It is this: Where the gift is immediate, but payment is postponed until the legatee attains the age of twenty-one years, or marries, there it is contingent, and will fail if the legatee dies before the time of payment arrives; but where the payment is postponed in regard to the convenience of the person, and the circumstances of the estate charged with the legacy—and not on account of the age, condition, or circumstances of the legatee—in such a case it will be vested, and must be paid, although the legatee should die before the time of payment.[131]

The rule in question is always liable to the operation of the more general and powerful rule, namely, that the intention of the testator, to be gathered from the words of the will, must prevail.

As an illustration of the rule in regard to the vesting of legacies on personal estate, the following is in point: A testator bequeathed to his daughters the sum of £3,000, five per cent. navy annuities, and all the dividends and proceeds arising therefrom, to be equally divided between them, and all his estate at S, to be equally divided between them when they should arrive at twenty-four years of age. One of his daughters died before she attained the age of twenty-four years. The court was of opinion that, according to the true rule of construction, the word when could not be otherwise considered than as denoting the period of payment, and must not be deemed as a condition precedent upon which the legacy was to vest, but merely postponing the payment of this £3,000, with the dividends thereon, till twenty-four.[132]

A legacy of £30 was given to an infant to bind him an apprentice. The infant died before he attained a proper age to be bound an apprentice. It was decreed that this legacy was vested, and the infant being seventeen years old, and having made a will, and named an executor, it was allowed to be a good disposition of the £30.[133]

As to charging legacies on real estate, and observing the rule above laid down, the following is in point:

T S, by will, gave his daughter £1,000, to be paid by his executor at her age of twenty-one, or marriage, which should first happen, willing the same to be raised out of the rents and profits of the lands; and further willed, that in case his son should die before the age of twenty-one, or without heirs of his body lawfully begotten, then from and after the death of his son, he gave all his said lands, etc., to the defendant, he making up his daughter’s portion to £2,000; and the daughter died soon after the testator’s death, an infant, unmarried, upon which her mother took out letters of administration and claimed the £2,000; it was decreed that she was not entitled to any part of it, for it appears that the intention of the testator was that it should be for a portion, and it is expressly called a portion in the will; it is no personal legacy, but money to be raised out of the rents and profits of lands, and the payment is expressly to be at twenty-one years, or marriage.[134]

Section 3.—Conditional Legacies.

By the bestowal of legacies a rare opportunity is offered to testators either to gratify some peculiar desire, or to restrain or control some one who is the beneficiary. It is on the legal principle of quid pro quo, a consideration for a consideration. Accordingly, we find that testators, in bestowing their bounty by way of legacies, avail themselves of the opportunity to effect various objects—some to regulate and restrain a wayward, errant child, some to curb the eager readiness of a widow to find a new partner, some to check a child rashly rushing into wedlock, and some to gratify a whim or a prejudice.

The law allows conditions to be annexed to a legacy, provided they are not against public policy or good morals.

A conditional legacy is defined to be a bequest whose existence depends upon the happening or not happening of some uncertain event, by which it is either to take place or be defeated.[135] No precise form of words is necessary to create conditions in wills; wherever it clearly appears that it was the testator’s intent to make a condition, that intent shall be carried into effect.

Conditions are subject to the well-known division, into conditions precedent and conditions subsequent. When a condition is of the former sort, the legatee has no vested interest till the condition is performed; when it is of the latter, the interest of the legatee vests, in the first instance, subject to be divested by the non-performance or breach of the condition.

Whether a condition be precedent or subsequent, that is, whether it must be performed before the legatee can be entitled to an absolute interest in the bequest, or not till after, of course depends upon the words and intention of the testator. But a testator, in making a bequest, may use words of condition, which, however, shall not be construed as such, if it clearly appear that they do not involve the motive and reason of the bequest.[136] Any consideration exacted from the beneficiary, or any duty imposed on him, unless it is spread over a very unusual period of time, is a condition precedent. A condition that the beneficiary shall cease to resort to public houses is a condition precedent, and is not void for uncertainty.[137]

In the case of Tattersall v. Howell,[138] a legacy was given, provided the legatee changed his course of life, and gave up all low company, and frequenting public houses. And Sir William Grant held that this was a condition such as the court could carry into effect, and directed an inquiry whether the legatee had discontinued to frequent public houses, keeping low company, etc.

Had this been a devise of land, it would have been a void condition, as will appear in the next chapter.[139]

In Dunstan v. Dunstan, the executors were required by the will to pay to the legatee annually $200, and also one-fifth of the testator’s estate, in case the legatee should refrain from vicious habits, and conduct himself with sobriety and good morals. About two years after the testator’s death, the legatee filed his bill against the executors, insisting that he had reformed, and claiming the payment of his share of the estate. The defendants had refused to pay over to the claimant his one-fifth of the estate, not being satisfied of his complete reformation. The provision of the will was supported, and as the complete reformation of the legatee was not distinctly proved, and a sufficient time had not elapsed between the death of the testator and the filing of the bill to enable the executors to form a sound opinion as to the permanency of the legatee’s good conduct, it was held that the executors were right in refusing to place the whole property in his hands at that time, and it was referred to a Master to ascertain and report whether there had been such a permanent reformation in his character and habits as to entitle him to receive the whole amount bequeathed to him at that time.

If the condition is at all capable of being construed as subsequent, it will be deemed to be such. Thus, in Page v. Hayward,[140] lands were devised to A and B in case they married a person named S. They married each a person of a different name, yet they were held to take vested interests, the condition being subsequent, and being capable of being performed, as their husbands might die, and they might then marry persons of the coveted name.

A testator declared that if either Jane or Mary married into the families of Prudence or Resignation, and had a son, then he gave all his estate to such son; but if they did not marry, then the estate was to go to A. Jane and Mary married, but not into the families mentioned, and A claimed the estate; but it was held that during the lives of Jane and Mary the claim was premature, for one of them might afterwards satisfy the condition.[141]

The race as well as the religious antipathy of a testator sometimes crops out in his will.[142] The testator in the following instance must have had as much dislike to Scotchmen as the celebrated Dr. Johnson. He devised his real and personal estate to trustees, out of which to pay an annuity to his wife for life, and out of the residue to pay sufficient for the maintenance, education, and support of his only daughter until she should attain the age of twenty-one years, or marry, and then in fee, with a proviso that if either his wife or daughter should marry a Scotchman, then his wife or daughter so marrying should forfeit all benefit under his will, and the estates given should descend to such person or persons as would be entitled under his will in the same manner as if his wife or daughter were dead. It was held that such partial restraint of marriage was legal, and that, the daughter having while under age married a Scotchman, and died leaving a son, the son could not inherit.[143]

The most interesting inquiry in connection with conditional legacies, is, as to how far conditions annexed to legacies which restrain marriage are to be performed, and in what case the neglect or non-performance of them will forfeit the legacy. The Roman civil law made absolutely void all such conditions in restraint of marriage, as against the policy of the State; but our law has not evinced the same impatience of nuptial restrictions, for a condition inhibiting marriage until majority, or any other reasonable age, or requiring consent, or restraining marriage with any particular individual, and in the case of a widow, even a general restraint, is lawful.[144]

Thus, if an annuity be bequeathed by a man to his wife for so many years, if she shall remain so long a widow, it is a good conditional bequest, because of the particular interest every husband has in his wife remaining a widow, for thereby she will the better take care of the concerns of his family.[145] But if a stranger gives a legacy upon such condition, it is not a good condition, for there is no more reason restraining a widow from marrying than a maid.[146]

In the American States, we permit such a condition to be annexed to a legacy, as well as in England.[147]

A restraint of this sort, annexed as a condition, occurred in a case in Pennsylvania,[148] in connection with the will of William Geigley, and, as a singular instance of a testator’s forethought and exactness, together with an unusual effusion of sentimental argument, very seldom met with in the sober, well considered decisions of courts, it will be interesting to refer to it.

The testator provided as follows: “I will and bequeath to my loving wife, Susan Geigley, all my real and personal estate that I am possessed of, (with a few exceptions, that I will afterwards bequeath to my brother George) provided my wife Susan remains a widow during her life. But in case she should marry again, my will is, she then shall leave the premises, and receive all the money and property she had of her own, or that I received of hers.... It is my will and desire, that if my wife remain a widow during her life on the premises, that after her death all the money or property that I got or had of my wife’s shall be paid to her friends, whomsoever she wills it to; and all property belonging to me as my own at my death (not including my wife’s part) I will and bequeath to my father and mother, if living. But if they are both deceased, my will is that my brother, George Geigley, and my sister, Catharine Geigley, shall have the whole of that share or part that was my own, to them, their heirs and assigns, forever.”

This condition was held to be good, and, the widow having married, the mother became entitled to the proceeds of the real estate.

The language of the judge before whom the case was at first heard is deserving of a place in legal literature, as something rare in these matter-of-fact, prosaic days. He thought it shocking to his sense of personal liberty that any such restraint should be valid, and concludes his decision with the following beautiful effusion:

“The principle of reproduction stands next in importance to its elder-born correlative, self-preservation, and is equally a fundamental law of existence. It is the blessing which tempered with mercy the justice of expulsion from Paradise. It was impressed upon the human creation by a beneficent Providence to multiply the images of himself, and thus to promote His own glory and the happiness of His creatures. Not man alone, but the whole animal and vegetable kingdom are under an imperious necessity to obey its mandates. From the lord of the forest to the monster of the deep—from the subtlety of the serpent to the innocence of the dove—from the celastic embrace of the mountain Kalmia to the descending fructification of the lily of the plain, all nature bows submissively to this primeval law. Even the flowers which perfume the air with their fragrance, and decorate the forests and fields with their hues, are but curtains to the nuptial bed. The principles of morality—the policy of the nation—the doctrines of the common law—the law of nature and the law of God—unite in condemning as void the condition attempted to be imposed by this testator upon his widow.”

It may be considered an unfair partiality in our law that wives are not allowed the same privilege to prohibit their husbands from marrying again; for it has just been lately decided in England, in the case of Allen v. Jackson,[149] that while a restraint of a widow is a good condition and valid as such, a similar restraint of a widower in regard to his marriage is invalid, and of no effect. It would seem at first blush that the same rule should govern in each case; but Vice-Chancellor Wood, in Newton v. Marsden,[150] suggested a reason which he thinks justifies the distinction, namely, that a condition restraining the marriage of a widow is valid, because it is not an arbitrary prohibition of marriage, but the condition of a gift, made to the widow because she was a widow, and because the circumstances would be entirely changed if she entered into a new relation.[151]

While the law sanctions, in this case, the restraint of a second marriage, it does not tolerate a general restraint of a first marriage; as Swinburne says:[152] “A prohibition of the first marriage is much more odious in law than the second.” The utmost privilege it has given in this respect is to permit a restraint as to time, place, or person, as not to marry before twenty-one, not to marry at York, not to marry a papist. Still, the law is not indulgent of such conditions, and in some cases will not permit a forfeiture if the condition is not observed. Thus, if a legacy be given on condition of asking consent to marriage, if the person marries without such consent, he does not lose the legacy. Such a condition is said to be in terrorem only—something like an idle threat, to prevent persons exercising an imprudent choice.

In Bellasis v. Ermine,[153] a suit was brought for £8,000, given to the plaintiff’s wife. The defendant pleaded that it was given her provided she married with the consent of A, and, if not, that she should have but £100 per annum; and that she married without the consent of A. It was ordered that the plea be overruled. And the court all declared that this proviso was but in terrorem, to make the person careful, and that it would not defeat the portion. But it was said that if the party who gave the portion had limited it to another, in the case of her marriage without the consent of A, there it would have been otherwise. We, in this country, follow the same law.[154] So long, therefore, as the legacy does not go to another named in the will, in case of a breach of the condition, the legatee will be entitled, notwithstanding a marriage without consent. The reason of this is said to be, that the courts cannot relieve against the forfeiture without doing an injury to the person to whom it is limited over.[155] Thus, A bequeathed £3,000 to his daughter, the plaintiff Garret’s wife, at twenty-one or marriage, and recommended her to the care of S, provided that, if she married without the consent of S, her legacy of £3,000 was to cease, and she was to have but £500, and made the defendant, his son, executor. The plaintiff married the daughter without the consent of S, yet the court decreed her the whole £3,000, with interest from the marriage, and principally because it was not expressly devised over.[156]

However, courts do not permit this doctrine of in terrorem to apply, in case the marriage is to be with consent during minority. In such a case the condition is enforced, as it is deemed a safe and proper one for the protection of youth.

The reason of the application of the doctrine in terrorem, is, that if a consent be withheld after a person has attained majority, it may be for a long period, either from caprice, willfulness, or some other cause, and would practically restrain marriage, which is what the law will not permit.[157]

If a portion be given on condition that the daughter should never marry, such a condition should be rejected as repugnant to the original institution of mankind.[158]

So, if a condition be illegal, or contrary to the policy of the law, as, if a legacy be given to a woman if she does not cohabit with her husband and lives apart, such a condition is void, and the legatee is entitled absolutely.[159]

Section 4.—Payment of Legacies.

Attention is now to be given to the payment of legacies. It is evident that an executor cannot safely pay a legacy until he ascertains that the personal estate of the deceased is sufficient to pay the debts, and for this reason the law generally allows the space of a year to satisfy himself as to the condition of the personal estate.[160] And should an executor, acting under the impression that the condition of the assets was such as to entitle him to pay a legacy before the end of the year, pay it before, and if, afterwards, a deficiency arises, he is responsible for the payment of any claim or demand against the estate. Sometimes the exigencies of a person may require an earlier payment of a legacy, and in this case an executor may pay such legacy, provided he gets a bond, with two good sureties, to refund in case of any deficiency; this is the case by statute in New York,[161] and in many other States. Even if a testator desires a payment of a legacy before the expiration of a year, an executor is not bound to make payment.[162] As regards the time of payment, the law makes no difference between general or specific legacies.

The next inquiry may be as to when a legacy is to be paid, where a legatee is to become entitled at twenty-one, or at some other age, and dies, having a vested interest, before he attains the specified age. In this case, it is a rule that no payment is to be made until the time arrives when the deceased, if living, would become entitled.[163] But if interest be given during minority, the representative of the deceased may claim the legacy immediately.[164]

A legacy of £500 was given to the eldest son of A to be begotten, to place him out apprentice; A had a son born after the death of the testator; and on a bill brought by him for the legacy, it was decreed to be paid, though it was before the time when he was fit to be placed out an apprentice.[165] The following case brings up a reminiscence of a state of society that is now very unfamiliar to us at the present day:

The testator by his will emancipated his slave, and devised to him two hundred dollars, “to assist him in buying his wife.” The specification of the object of the bequest does not qualify it, nor affect the legatee’s right to it. The executors, it was decided, cannot compel him to use the two hundred dollars in the matrimonial market, nor delay him payment until he makes a purchase there.[166]

A testator devised as follows: “I lend to my wife the plantation whereon I now live, and after her decease I give and bequeath the said land to my child that my wife is now pregnant with, if a boy; and if it should be a girl, I give the said land to my son H, upon his paying to the said child, if a girl, one hundred pounds.” The child proved to be a girl; and it was held that the legacy of one hundred pounds was not payable until the death of the testator’s widow.[167]

If a legacy be given to A, with a bequest over if he succeed to a certain estate, or upon condition that it shall be void in that event, the legacy must be paid to A, notwithstanding.[168]

If a legacy be devised generally, it is regularly to carry interest from the expiration of the first year after the death of the testator; but if it be a specific legacy upon which interest can accrue, the interest will be given from the death of the testator, and it is immaterial whether the enjoyment of the principal is postponed by the testator or not.[169] Even if there be a direction to pay a general legacy as soon as possible, interest only begins at the end of a year.[170] But if the legatee, being of full age, neglects to demand it at that time, he cannot have interest but from the time of the demand, because a legacy differs from a debt.[171]

While this was formerly the rule, it is not now in force, for it has been held that, no matter whether the legatee demands or not, the legacy will draw interest. It was so decided in a case in New York.[172]

The general rule is, that a legacy payable at a future day does not carry interest before the time of payment; and the rule applies to an infant payable at twenty-one, unless in the case of an infant having a right to demand maintenance from the testator, or of the legacy to him being a residue, or there are special circumstances showing clearly an intention to give interest.[173] And if a legacy is given in lieu of dower, or is decreed to be a satisfaction of a debt, the court always allows interest from the death of the testator.[174]

A legacy to a child whose support and maintenance is otherwise provided for by the bounty of the testator, like a legacy to a more distant relative, or to a stranger, is not payable and does not draw interest until one year after the death of the testator, where no time of payment is prescribed by the will.[175]

An annuity bestowed by will, without mentioning any time of payment, is considered as commencing at the death of the testator, and the first payment as due at the expiration of one year; from which latter period interest may be claimed in cases where it is allowed at all.[176]

The rule as to interest being reckoned on a specific legacy from the death of the testator was strictly applied in the case of Churchill v. Speake,[177] where a testator made a specific bequest of a mortgage for £1,000 to his wife, and desired her to give the sum of £500 to M C, his grandchild; “but, for the time and manner of doing it, I leave it freely to herself, and as she shall see it best for her”; and the wife exercised this freedom so well as to live twenty years after the testator, and never paid the £500; and the court decreed payment of it to M C, with interest from the testator’s death.

The inquiry to whom legacies are to be paid is one of great importance to the executor, who must be careful to pay legacies into the hands of those who have authority to receive them. It is a general rule that, where the legatee is an infant, and would be entitled to receive a legacy if he were of age, the executor is not justified in paying it either to the infant, or to the father, or any other relation of the infant, on his account, without the sanction of a court of equity.[178] And even in the case of a child who has attained majority, payment to the father is not good, unless it be made by the consent of the child, or confirmed by his subsequent ratification. It may happen that an executor has, with the most honorable intentions, paid the legacy to the father of the infant; nevertheless, he will be held liable to pay it over again to the legatee on his coming of age. And although such cases have been attended with many circumstances of hardship to the executor, yet he has been held responsible, on the policy of obviating a practice so dangerous to the interests of infants, and so naturally productive of domestic discord.[179]

Many of our States regulate the payment of legacies to infants by statute, as in New York, where a legacy of $50 may be paid to the father of the legatee, to the use and for the benefit of such minor; but, if it exceeds $50, it must be paid to the general guardian of the infant, who will be required to file a bond to pay it over to the infant.[180]

It was formerly the law that, if a legacy was given to a married woman, it should be paid to the husband. So, where a legacy was given to a married woman living separate from her husband, with no maintenance, and the executor paid it to the wife, and took her receipt for it; yet, on a suit instituted by the husband against the executor, he was decreed to pay it over again, with interest.[181] It was also adjudged that, if the husband and wife were divorced a mensa et thoro, and a legacy was left to her, the husband alone could give a proper receipt for it, and consequently to him alone was it payable.[182]

But now, by statutes in almost all of our States, a married female may take by devise and bequest, and hold to her sole and separate use, real and personal property, or any interest or estate therein, in the same manner, and with the like effect, as if she were unmarried.

Section 5.—The Person who may Take.

The only person generally disqualified to receive a legacy is the witness to a will. The law has thought fit to guard a deceased from all imposition, and it is thought if a person took any beneficial interest under a will to which he was one of the witnesses, he could not be a disinterested person to attest its due execution.

In New York, he is disqualified, if such will cannot be proved without his testimony;[183] and, in a case on this head, Caw v. Robertson,[184] where there were three witnesses to the will, each of whom took legacies under it, the Surrogate called the first two, whose names appeared first, which were sufficient, and omitted calling the third. It was decided that he only became entitled to the legacy, as the will could be proved without his testimony.

An executor is not disqualified from receiving a legacy; but in his case, it seems, it will not carry interest.[185]

In wills, legatees are sometimes designated under a general name or class, and a difficulty often arises to determine what individuals shall be included in such a designation. Where a testator uses such general terms, without defining or limiting them, they have a meaning given them by the general rules of construction in law. Indeed, the testator’s intention may be frustrated by using certain terms, which may appear to him to include or exclude certain individuals in his bounty, but which may be so enlarged or restricted by the rules of law as to defeat their object. As in the instance where a lady, dying, and intending to give her personal wearing apparel to her servant maid, bequeathed to her all her personalty, which under the rules of law meant all her personal estate, which was valued at $60,000, and which under such a term must necessarily go to the servant.

In general, no rule is better settled than that legatees must answer the description and character given them in the will, but it will presently appear, from the cases, that there are many important exceptions to it.

We shall refer to some of these general names or classes, sometimes met with in a will, by which individuals belonging to such classes become entitled to a legacy.

When a testator leaves a legacy to “children,”[186] it is a general rule, that those within that designation at the time of the testator’s death become entitled; but if, from the expressions and context of the will, it is ascertained that he intended only those who answered that description at the date of the instrument, such intention will be observed.[187] A court of equity, however, is careful that a liberal construction be placed upon such a term, and always, if possible, will hold that it shall include children in existence at the death of the testator, and especially if the testator stood in loco parentis to the legatees.[188]