embracing devises, legacies, and charitable trusts, and the duties of executors, administrators, and other testamentary trustees (Google eBook)

Front Cover
Little, Brown, 1866 - Wills
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Contents

The executor can only do necessary acts admitting no delay before
11
The decisions of the courts of last resort in place of domicile fix sae
15
Consideration of points discussed in Redfields edition of Storys Con
23
THE MODE OF PROOF OF WILLS BEFORE THE COURT OF PROBATE
26
The degree of certainty required to change the legal intendment as
30
It would seem that an executor or administrator is Dot bound by perpet
34
Tho cllaracter of conditions determined by the general intent of tes
36
cession to personalty 906
38
Will limited in operation general administration may be granted of
45
The extent of the conclusiveness of letters of administration
54
The term executor originally embraced what are now called adminis
58
Where the word heirs is used with reference to the devisee a
59
The American law corresponds with the English in most respects
64
The husbands right to administer on the wifes estate and to hold
67
Grounds of selection by the probate court among those of equal degree
73
SECTION IL
79
Where no executor probate court appoints administrator with will
84
SECTION V
92
SECTION VIII
100
CHAPTER IV
103
CHAPTER V
113
THE NATURE AND EXTENT OF THE ESTATE OF AN EXECUTOR
116
SECTION m
122
Or in remainder sometimes
127
IS Where the husband survives he takes his wifes chattels real as sur
133
SECTION V
135
The rule now depends mainly upon the intention of the party in affix
143
The devisee will take the fixtures the samo as the heir and more
153
SECTION IX
163
And the same rule holds between tenant for life and him in remainder
171
If the husband survive the wife he will take her choses in action
179
fruni time of accruing
181
Courts of equity commonly enforce their own final decrees But
188
The executor or administrator may have a right of action accruing
195
CHAPTER VII
200
THE AUTHORITY OF THE PERSONAL REPRESENTATIVE
206
Executor c may indorse bills and notes or sell choses in action
219
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
THE PAYMENT OF DEBTS GENERALLY
236
CHAPTER X
249
and n 61 The extent of the responsibility of representative in case
250
If he take possession he is responsible to the extent of the benefit
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
Where executors waste the estate legacy dne them will be retained
287
IS representative undertake to perform an award he is bound person
294
power by attorney iu fact
295
CHAPTER XII
296
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 donee
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
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
This species of gift not abrogated by the statute of wills
320
Eight of married women to make or revoke such gifts
321
and n 70 Attempts to limit the extent of these gifts have not proved successful
322
Bank shares mnst be transferred to constitute such gift
323
2 The American courts reluctantly depart from the obvious
328
The force of the terms begotten or to be begotten may mean
332
The same rule applies to the use of tho word grandchildren
338
Abstract of some recent decisions in Pennsylvania
353
The English statute giving bequests to issue to save a lapse
365
18 The latest English case comes precisely to this point
371
SECTION IV
378
personalty
385
Difference between bequest to one or heirs or to one or execu tors
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
Family used in a more enlarged sense as equivalent to descendants or next of kin
396
The true rule is to allow what is reasonable under all the circum
407
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 H 33 The terms next or nearest will not vary the construction
411
The half blood take concurrently with the whole blood on a bequest to next of kin
412
The next of kin is sometimes applied to the tenant for life instead
418
Legacy to poor inhabitants defined
424
The word effects is more general in its operation than the others
425
Error apparent on face of will by way of miscalculation corrected
426
Bequest of ones share in an estate regarded as specific
457
time of giving
458
Chief Baron Kichardss 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
into permanent fund
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 tho original estate
481
exonerate the residue
482
LAPSED LEGACIES 1 Definition of lapse whether before or after the death of testator
483
The same rule of construction is applied where the payment of a leg acy is postponed
484
survives
499
How far the devise of the legal estate vests the fee absolutely in the trustee
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
Illustration of the point by the case of Greenwood v Greenwood
510
Legacies not cjusdem generis or not payable in same event held
511
Locality in a bequest may be referred to as a limitation or as a mode
528
Pledging or mortgaging goods spccificially bequeathed will not adeem
532
Ademption of specific legacy will not revive general legacy for which
535
Lord Chancellor Cottenhams exposition of the rule as to standing
544
Instances where apparent considerations not held sufficient
547
claim take precedence 551
551
1
555
What will amount to a valid assent is generally matter of fact
560
But courts of equity will require the husband to secure the support
579
SECTION XX
585
SECTION XVIII
590
SS ViceChancellor Stewarts opinion in favor of immediate vesting 611
591
Where a vested estate is clearly given it will not be cut down by vague
616
But any provision in regard to a single member of the class will
622
The leading case in Massachusetts is Furness p Fox Courts favor
629
The same is true in the State of New Hampshire Late cases stated
637
The law against perpetuities applies to personal estates in succession
643
text
650
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 mantain the same distinctions All the particulars to be performed
660
The American cases hold any restraint upon the use or alienation of
661
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
Eminent writers and jndges question whether the refinements on this
671
Exposition of the doctrine of in terrorem conditions by Lord Cran
677
legacy further discussed
686
Sometimes an enumeration of particulars following the words may limit
687
natural force
694
The same rule prevails in Massachusetts
700
The American cases upon both parts of this chapter presented together 716
701
eration it will defeat the estate over 734
702
In Ohio tho devise of the plantation on which I now live will carry
734
The same general presumption prevails where testator has only
736
The widow may claim her share in undisposed of personalty while
753
This class of cases seems to turn n good deal upon the question of vest
759
The courts still resort to this construction to carry out the clear intent
762
Uses solely for benefit of donor or for specific purpose where void
766
Construction of the bequest in regard to the extent of the word orphan and of the limits of the city of Philadelphia 827
768
Subjects embraced in that statute
774
Devise to dissenting ministers good for life but devise over not char
780
Lands devised to charity do not vest the heir may recover at law
786
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 48
838
Trusts for accumulation beyond the allowed term void before the stat ute but since only for the excess
839
2 Avoiding tho accumulation does not hasten the vesting of the estate
840
Where the accumulation directed is illegal bequest takes effect with
843
Illustration of the rule by devise of a reversionary interest
844
CHAPTER XVIII
852
Judge Hares statement of the rule Exceptional cases in America 878
853
If the executor pay debts out of his own money he may reimburse
870
If the sums arc unequal the legatee takes both unless there is proof
875
It is not sufficient to shift the burden that the testator might have been
876
CHAPTER XIX
879
The rule as laid down in Connecticut and by Mr Justice McLean
880
PART II
883
The same rale has been extensively adopted in other states
894
CHAPTER XXI
901
In Massachusetts advancements must have been so intended c
902
the father
910
TO WHOM PAYMENT OF LEGACIES TO BE MADE THE EXECCTORs
943
Personal effects held in trust except money not to be inventoried 205
966

Common terms and phrases

Popular passages

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

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