is usual to conclude "All the rest, residue, and remainder of my estate I leave to my wife May Andrews." This would include everything not otherwise bequeathed. It is customary and always best to have such clause to include everything that is left, and so to provide for the utilization of lapsed legacies or other unexpected additions to the amount of the estate. § 132. Conditional Legacies The testator may make his legacies or devises conditional. A legacy to a son, to be paid if he graduated from college or was admitted to the New York bar, would be legal. In such case the property should be left in trust to be paid over on the fulfilment of the condition, and it should be provided that if at a certain time the condition had not been fulfilled the legacy should lapse and should be paid over to some other legatee. In the same way a reasonable condition as to marriage might be sustained, as a legacy to a nephew provided he should be married before he was thirty years of age. A condition that the legatee should live in a particular place might be sustained if there was some good reason for the condition and nothing against it. Such a condition is usually attached to a bequest of a dwelling place. In all such cases the testator should provide that the property bequeathed should go elsewhere in case of breach of condition. The executor does not continue his task after the estate is settled, and in event of the violation of a condition after his discharge it should be made the interest of someone to enforce it. The conditions of a trust created under a will would be enforced and the income paid over, unless the conditions were against law or good morals. A married man may leave property in this way, the income to be paid his wife conditioned against re-marriage. A woman may leave property to her husband in the same way. In all other cases a positive condi tion in restraint of marriage would be void. A father may, though, impose restrictions as to marriage with classes of persons, as a legacy could be conditioned on the legatee's marriage to a member of the Society of Friends. It is common in wills to provide that any legatee who contests the will shall thereby forfeit his legacy. It is against public policy to terrorize those who might have good cause to contest a will, and if a will procured by fraud or undue influence could stifle legitimate inquiry as to the conditions under which it was executed, it would make fraud the easier. On this account such conditions are not always enforced by the courts. § 133. Vested Legacies A legacy is vested when there is someone in existence who is to take the legacy and every condition has been fulfilled. Generally a legacy vests at the death of a testator. A legacy "to my friend George Giddings, if he be living at my death," would vest if the legatee was alive at the time the testator died. If the legatee should die immediately after the testator died, his heirs would take the legacy, and his executor could demand it. A legacy simply to "Henry Allen" is held to be personal and lapses if he dies before the testator. This lapsing could be made more positive by adding "if living at the time of my death," and could be prevented by making the legacy to "Henry Allen or his heirs." A legacy may be based on a contingency, in which case it will not vest until the contingency occurs. A legacy to be paid to "my nephew James Willard upon his admission to the New York bar within four years from his majority, and at the expiration of that time if he has not been admitted to the New York bar said amount shall be paid to the Legal Aid Society of the City of New York," would be a contingent legacy with a gift over if the contingency did not occur. § 134. Bequests Void for Uncertainty or Perpetuity A bequest that is uncertain in its description of its object may be held void. If a man left property to be divided among the deserving poor of his native village, it would probably be held void for uncertainty. Any attempt to tie up property from absolute ownership for long periods is against public policy and the courts look upon such efforts with a hostile eye. The usual rule is that property may be held in trust and the income paid out year by year for the period of "a life or lives in being and twentyone years more." It would not be legal to let income accumulate even for this period. (See § 28.) § 135. When a Legacy Is Payable A legacy in most cases vests at death. If there are unpaid debts, they are prior claims and must be paid before any part of the testator's estate can be applied to the payment of legacies. To give the representative time to find out whether the payment of debts may leave nothing with which to pay legacies, the rule is that no legacies need be paid for a certain period, usually a year from the time of the testator's death or of the issuance of letters testamentary. If executors pay legacies at an earlier date, as they often do when the estate is large and the outstanding debts. can be easily met, they pay at their own risk. In such cases the executor may protect himself by taking a bond for repayment if outstanding debts make it necessary. When an annuity is given, the first payment need not be made until one year after the death of the testator unless the will specifies a different date. Interest is payable on an unpaid legacy after the year's delay; that is, it draws interest from the date when it is payable. Any income from a specific legacy after date of death belongs to the legatee. § 136. To Whom a Legacy Should Be Paid Primarily, the legacy should be paid to the legatee entitled to receive it. If the legatee has died, his executor or administrator is the proper person. If the legatee is not of age, a guardian of his property must be appointed to whom the legacy is to be paid. Payment to the minor or to his parent would not be safe. If a legatee is not sane, the payment should be made to his guardian or committee. If a legacy is to someone to hold in trust for another, the trustee is the proper person to receive the legacy; but, before this is turned over, the trustee must have his appointment confirmed by the probate court, and should file the required bond and secure whatever authorization the state laws require. If the executor himself is to act as testamentary trustee, he should be specially authorized to act in this capacity and in his accounts should distinguish between his holding as executor and his holding as trustee. If no trustee has been named or the trustee named refuses to serve, or for other reason there is a vacancy, the probate court will usually appoint a trustee to fill the vacancy. Until this is done, it is the duty of the executor to hold and care for the legacy. § 137. Delivery or Payment of Legacy A specific legacy should be identified and delivered. If it were an article or articles that involved selection, the legatee would have the right to choose. If the legacy is of shares of stock or an amount in bonds, the will would be satisfied. by any shares or any bonds of the kind specified. If the legacy was cash, it should be paid in legal tender; usually the executor's check on a responsible bank is the most satisfactory for both parties. If any state inheritance tax has been paid or is to be paid, it should be deducted from the amount to be paid over. § 138. Abatement of Legacies to Pay Claims If claims are allowed to such an extent as to leave insufficient assets to pay all the legacies in full, some of these must be cut down or "abated." The order in which this is done is as follows: 1. General legacies are abated proportionately, if that will yield enough to pay all claims. If necessary, all of the general legacies will be exhausted. 2. Specific legacies will be taken and sold if there are debts. not paid and the general legacies have all been utilized. 3. Real estate may be sold to pay debts after the personalty is exhausted, if the representative receives an order or license to sell from the judge of probate. (See Chapter XVI.) In such case any surplus would go to the heir or the devisee. A will which directs real estate to be sold to pay debts gives the executor authority to sell real estate before abating legacies. In some cases wills direct the sale of land to pay legacies. § 139. Refunding Legacies Legatees may be required to refund if it is necessary to pay creditors. An executor should not pay legacies while there are unpaid debts, but if he does, he should require the legatees to give him bond to refund if it should become necessary to enable the executor to meet lawful claims against the estate. If he does not take a bond, he can proceed against the legatees by a suit in equity. In such a suit the executor would have to show: (1) that creditors were still unpaid; (2) that the legatee had received assets from the estate; (3) that no unappropriated assets remained; and (4) that the deficiency was not caused by the executor's waste or mismanagement. The objective is: (1) to pay all creditors, and, (2) so to arrange any refunding that all legatees of the same class. fare alike. If the executor has favored any particular legatee |