Legacy

Legacy (Lat. legatum), in English law, some particular thing or things given or left by a testator in his will, to be paid or performed by his executor or administrator. The word is primarily applicable to gifts of personalty or gifts charged upon real estate; but if there is nothing else to which it can refer it may refer to realty; the proper word, however, for gifts of realty is devise.

Legacies may be either specific, general or demonstrative. A specific legacy is “something which a testator, identifying it by a sufficient description and manifesting an intention that it should be enjoyed in the state and condition indicated by that description, separates in favour of a particular legatee from the general mass of his personal estate,” e.g. a gift of “my portrait by X,” naming the artist. A general legacy is a gift not so distinguished from the general mass of the personal estate, e.g. a gift of £100 or of a gold ring. A demonstrative legacy partakes of the nature of both the preceding kinds of legacies, e.g. a gift of £100 payable out of a named fund is a specific legacy so far as the fund named is available to pay the legacy; after the fund is exhausted the balance of the legacy is a general legacy and recourse must be had to the general estate to satisfy such balance. Sometimes a testator bequeaths two or more legacies to the same person; in such a case it is a question whether the later legacies are in substitution for, or in addition to, the earlier ones. In the latter case they are known as cumulative. In each case the intention of the testator is the rule of construction; this can often be gathered from the terms of the will or codicil, but in the absence of such evidence the following rules are followed by the courts. Where the same specific thing is bequeathed twice to the same legatee or where two legacies of equal amount are bequeathed by the same instrument the second bequest is mere repetition; but where legacies of equal amounts are bequeathed by different instruments or of unequal amounts by the same instruments they are considered to be cumulative.

If the estate of the testator is insufficient to satisfy all the legacies these must abate, i.e. be reduced rateably; as to this it should be noticed that specific and demonstrative legacies have a prior claim to be paid in full out of the specific fund before general legacies, and that general legacies abate rateably inter se in the absence of any provision to the contrary by the testator. Specific legacies are liable to ademption where the specific thing perishes or ceases to belong to the testator, e.g. in the instance given above if the testator sells the portrait the legatee will get nothing by virtue of the legacy. As a general rule, legacies given to persons who predecease the testator do not take effect; they are said to lapse. This is so even if the gift be to A and his executors, administrators and assigns, but this is not so if the testator has shown a contrary intention, thus, a gift to A or his personal representative will be effective even though A predecease the testator; further, by the Wills Act 1837, devises of estates tail and gifts to a child or other issue of the testator will not lapse if any issue of the legatee survive the testator. Lapsed legacies fall into and form part of the residuary estate. In the absence of any indication to the contrary a legacy becomes due on the day of the death of the testator, though for the convenience of the executor it is not payable till a year after that date; this delay does not prevent the legacy vesting on the testator’s death. It frequently happens, however, that a legacy is given payable at a future date; in such a case, if the legatee dies after the testator but prior to the date when the legacy is payable it is necessary to discover whether the legacy was vested or contingent, as in the former case it becomes payable to the legatee’s representative; in the latter, it lapses. In this, as in other cases, the test is the intention of the testator as expressed in the will; generally it may be said that a gift “payable” or “to be paid” at a certain fixed time confers a vested interest on the legatee, while a gift to A “at” a fixed time, e.g. twenty-one years of age, only confers on A an interest contingent on his attaining the age of twenty-one.

Legacy Duty is a duty charged by the state upon personal property devolving upon the legatees or next of kin of a dead person, either by virtue of his will or upon his intestacy. The duty was first imposed in England in 1780, but the principal act dealing with the subject is the Legacy Duty Act 1796. The principal points as to the duty are these. The duty is charged on personalty only. It is payable only where the person on whose death the property passes was domiciled in the United Kingdom. The rate of duty varies from 1 to 10% according to the relationship between the testator and legatee. As between husband and wife no duty is payable. The duty is payable by the executors and deducted from the legacy unless the testator directs otherwise. Special provisions as to valuation are in force where the gift is of an annuity or is settled on various persons in succession, or the legacy is given in joint tenancy and other cases. In some cases the duty is payable by instalments which carry interest at 3%. In various cases legacies are exempt from duty—the more important are gifts to a member of the royal family, specific legacies under £20 (pecuniary legacies under £20 pay duty), legacies of books, prints, &c., given to a body corporate for preservation, not for sale, and legacies given out of an estate the principal value of which is less than £100. Further, by the Finance Act 1894, payment of the estate duty thereby created absorbs the 1% duty paid by lineal ancestors or descendants of the deceased1 and the duty on a settled legacy, and, lastly, in the event of estate duty being paid on an estate the total value of which is under £1000, no legacy duty is payable. The legacy duty payable in Ireland is now for all practical purposes assimilated to that in Great Britain. The principal statute in that country is an act of 1814.

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1 The Finance Bill 1909-1910 re-imposed this duty, and extended it to husbands and wives as well as descendants and ancestors.