in payment, the legatee will not be allowed to profit, but will be compelled to contribute to make good the general deficiency. § 140. Residuary Legatees After payment of all debts and all general and specific legatees, it is the duty of the executor to turn over the residue or surplus of the estate to the person or persons designated as residuary legatee or legatees. This residue may be in money or securities or other personal property, depending on the directions of the will. If, as is sometimes the case, the will fails to designate the residuary legatees, the next of kin will inherit as provided in the laws of the particular state. If there was no will, the administrator would sell the personal property, pay all creditors, and distribute whatever remained as directed by the statutes of the particular state. In this country the rights of husband and wife in the personal property of the other in event of death are defined by the statutes in each state. After the statutory rights of the husband or the wife in the personalty of the other have been satisfied, the remaining personal estate is usually evenly apportioned among the children. REVIEW QUESTIONS 1. How are the various kinds of legacies distinguished? What is the effect if a legatee acts as a witness to the will? 2. What is a general legacy? Is "I leave my sister Mildred Ordway all the stocks and bonds in my safety deposit box No. 621Guardian Trust Company's Vault" a general or a specific legacy? 3. What is a specific legacy? Would "I leave my daughter Amelia Barton 100 shares of stock in the Morton Trust Company" be specific or general? Which is more desirable from the legatee's standpoint, a specific or a general legacy? Why? 4. Why is there usually a residuary legatee? 5. What is a conditional legacy or bequest? How would you phrase a legacy to be paid over on the fulfilment of a condition? How would you arrange the forfeiture of a legacy if a condition were not observed? Is a legacy in restraint of marriage good? Is a proviso that any legatee contesting the will should forfeit all bequests under it good? Why? 6. What is a vested legacy? If a legatee dies before the testator, what happens to the legacy? If a legacy is based on a contingency, is it vested? 7. If a bequest does not describe the legatee certainly, what is the effect? What is the objection to perpetuities? In your state how long may property be tied up? 8. When is a legacy payable? When does it vest? When does a general legacy begin to draw interest? In case of an annuity being left, when should the first payment be made? 9. If a legatee dies, to whom should the legacy be paid? If the legatee is a minor? If the legatee is not sane? What should a trustee do before a legacy may be paid to him? If there is no trustee to take the trust, what must the executor do? o. How should a specific legacy be delivered? How should a cash legacy be paid? II. In what order are legacies and devises cut down to pay debts? How are specific legacies treated to equalize the abatement ? 12. If the executor pays legacies before he has assembled all claims, can the legatees be made to refund? At whose expense would suit for refund be? 13. If the will fails to designate the residuary legatee, who is entitled to the residue? In case of husband and wife, what is done with the personal property in your state? CHAPTER XVIII GUARDIANS FOR MINORS § 141. Definitions A guardian is one who, in the absence of the proper parent or parents, protects and looks after the person or property or person and property of an infant during his period of minority. A guardian of the person is said to be in loco parentis, or in the place of the parent for the time being. The infant under guardianship is legally known as a “ward.” Guardianship of Person. It must be remembered that there are two kinds of guardianship, that of the person of the infant, and that of the property of the infant. A father has the first right to the guardianship of his children and upon his death the mother becomes the natural guardian. The father may have appointed a guardian of the person of the infant other than the mother before his death, but in the absence of good cause for such action on the part of the father, the court will disregard his directions and continue the natural guardianship in the mother. Guardianship of Property. But a father may bequeath the guardianship of the property he leaves to his child to someone other than the mother, the custody of the child remaining in her. This procedure is approved by the courts for the reason that the guardian chosen should be a person of business experience and ability and would probably be better fitted than the mother to look after the property left to the child. § 142. Common Law and Statutory Guardianship All the states have not passed statutory rules on the question of guardianship, and for that reason the rules of the The one kind of common law still apply to some extent. common law guardianship that in a modified form exists in this country is here given and explained. § 143. Guardianship in Socage Guardianship in socage occurred only when the infant had some interest in land or would inherit real property. Land held by the ancient tenure of a certain service or a price certain in lieu of such service was said to be held by "socage" tenure. The guardianship of the heir to such an estate was given to the next of kin of proper age and qualifications, by whom the land could not be inherited. Thus no temptation was given to the guardian to abuse his trust with the hope of reaping any profit. A guardian in socage had charge of both person and property of the infant, and the guardianship continued until the infant was fourteen, when he would choose his own guardian. This kind of guardian, however, had charge only of the real property obtained by descent and had no control over any personal property that the infant might have. In New York it was decided that a statutory guardianship originating by testamentary provision was analogous to the guardianship in socage, and that in accordance therewith such a guardian had no authority over the personal property of his ward. In the particular case, the father as guardian took over an insurance policy and got the insurance company to give him its surrender value. When the eldest child came of age, he was appointed guardian for the younger children and brought suit against the insurance company and compelled it to refund the money they had already paid the father.1 § 144. Statutory Guardianship In the many states that have adopted statutory law on this question, there are for the most part few classes of guardians. 1 Foley v. Ins. Co., 138 N. Y. 333. Testamentary guardians and probate guardians are the usual forms under the statute law. A testamentary guardian for either the person or the property of the infant is one appointed by the parent or parents of an infant by a written will or other instrument. Such guardianship must, however, have the approval of the court of probate judging the will, and the court, if it thinks it necessary, may demand a bond or surety before officially ratifying the appointment of the guardian. A probate guardian is one chosen by the court probating the will for either the person or the property or both of the infant. An infant over fourteen years of age has the privilege of choosing his guardian, but his choice must always be approved by the court, and therefore amounts in the end to the choice of the court. From the two foregoing paragraphs it will be seen that under statutory provisions guardians may be for the person or the property of the infant without being classed under any particular name, aside from the fact that they were selected by the parent or by the court. In the majority of cases the guardian appointed takes care of both the person and the property of the infant. The natural guardians are the father and the mother and on the death of either the remaining parent becomes guardian. Except in rare cases of marked unfitness the courts will not disturb the relationship. § 145. Appointment of Guardian A court will never appoint a guardian where it is not necessary, and then, not until a petition has been presented asking that it do so. The manner and the form of such petition are explained later in this section. The first consideration of the court in regard to the appointment of a guardian will be to promote the best interests of the infant. Its appointment will, of course, be largely influenced by the wishes of the parent or the desire of the infant |