| slovo | definícia |
legate
(mass) | legate
- člen veľvyslanectva, legát |
legate
(encz) | legate,legát n: Zdeněk Brož |
legate
(encz) | legate,papežský vyslanec n: Zdeněk Brož |
Legate
(gcide) | Legate \Leg"ate\ (l[e^]g"[asl]t), n. [OE. legat, L. legatus, fr.
legare to send with a commission or charge, to depute, fr.
lex, legis, law: cf. F. l['e]gat, It. legato. See Legal.]
1. An ambassador or envoy.
[1913 Webster]
2. An ecclesiastic representing the pope and invested with
the authority of the Holy See.
[1913 Webster]
Note: Legates are of three kinds: (a) Legates a latere, now
always cardinals. They are called ordinary or
extraordinary legates, the former governing provinces,
and the latter class being sent to foreign countries on
extraordinary occasions. (b) Legati missi, who
correspond to the ambassadors of temporal governments.
(c) Legati nati, or legates by virtue of their
office, as the archbishops of Salzburg and Prague.
[1913 Webster]
3. (Rom. Hist.)
(a) An official assistant given to a general or to the
governor of a province.
(b) Under the emperors, a governor sent to a province.
[1913 Webster] |
legate
(wn) | legate
n 1: a member of a legation [syn: legate, official emissary] |
LEGATE
(bouvier) | LEGATES. Legates are extraordinary ambassadors sent by the pope to catholic
countries to represent him, and to exercise his jurisdiction. They are
distinguished from the ambassadors of the pope who are sent to other powers.
2. The canonists divide them into three kinds, namely: 1. Legates A
latere. 2. Legati missi. 3. Legati nati.
3.-1. Legates latere hold the first rank among those who are honored
by a legation; they are always chosen from the college of cardinals, and are
called a latere, in imitation of the magistrates of ancient Rome, who were
taken from the court, or side of the emperor.
4.-2. The legati missi are simple envoys.
5.-3. The legati nati, are those who are entitled to be legates by
birth.
|
LEGATE
(bouvier) | LEGATEE. A legatee is a person to whom a legacy is given by a last will and
testament.
2. It is proposed to consider, 1. Who may be a legatee. 2. Under what
description legatees may take.
3.-1. Who may be a legatee. In general, every person may be a
legatee. 2 Bl. Com. 512. But a person civilly dead cannot take a legacy.
II. Under what description legatees may take.
4.-1. Of legacies to legitimate children. 1. When it appears from
express declaration, or a clear inference arising upon the face of the will,
that a testator in giving a legacy to a class of individuals generally,
intended to apply the terms used by him to such persons only as answered the
description at the date of the instrument, those individuals alone will be
entitled, although if no such intention had been expressed, or appeared in
the will, every person failing within that class at the testator's death,
would have been included in the terms of the bequest. 1 Meriv. 320; and see
3 Ves. 611; Id. 609; 15 Ves. 363; Ambl. 397; 2 Cox, 291; 4 Bro. C. C. 55; 3
Bro. C. C. 148; 2 Cox, 384.
5.-2. Where a legacy is given to a class of individuals, as to
children, in general terms, and no period is appointed for the distribution
of it, the legacy is due at the death of the testator; the payment of it
being merely postponed to the end of a year after that event, for the
convenience of the executor or administrator in administering the assets.
The rights of the legatees are finally settled, and determined at the
testator's decease. 1 Ball & B. 459; 2 Murph. 178. Upon this principal, is
founded the well established rule that children in existence at that period,
or legally considered so to be, are alone entitled to participate in the
bequest. 1 Bro. C. C. 532, n.; 2 Bro. C. C. 658; 2 Cox, 190.; 1 Dick. 344;
14 Ves. 576; 1 Ves. jr. 405; 1 Cox, 68; 3 Bro. C. C. 391; Amb. 448; 1 Ves.
sen. 485; 5 Binn. 607.
6.-3. A child in ventre sa mere takes a share in a fund bequeathed to
children, under the general description of "children," or of "children
living at the testator's death." 1 Ves. sen. 85; and see 1 P. Wms. 244, 341;
2 Bro. C. C. 63; 1 Salk. 229; 2 Cox, 425; 5 Serg. & Rawle, 38. See tit. In
ventre sa mere.
7.-4. When legacies are given to a class of individuals, generally,
payable at a future period, as to the children of B, when the youngest shall
attain the age of twenty-one, or to be divided among them upon the death of
C; any child who can entitle itself under the description, at the time when
the fund is to be divided, may claim a share, viz: as well children living
at the period of distribution, although not born till after the testator's
death, as those born before, and living at the happening of that event. 1
Supp. to Ves. jr. 115, note 3, to Hill v. Chapman; 2 Supp. to Ves. jr. 157,
note 1, to Lincoln v. Pelham. This general rule may be divided into two
branches. First, when the division of the fund is postponed until a child
or children attain a particular age; as, when a legacy is given to the
children of A, at the age of twenty-one; in that case, so soon as the eldest
arrives at that period, the fund is distributable among so many as are in
existence at that time; and no child born afterwards can be admitted to a
share, because the period of division fixes the number of legatees.
Distribution is then made, and nothing remains for future partition. 1 Ball
& Beat. 459; 3 Bro. C. C. 402; 5 Binn. 607; 2 Ves. jr. 690; 3 Ves. 730; 3
Bro. C. C. 352, ed. by Belt; 14 Ves. 256; 6 Ves. 345; 10 Ves. 152; 11 Ves.
238. Second, when the distribution of the fund is deferred during the life
of a person in esse. In these cases, when the enjoyment of the thing given,
is by the testator's express declaration not to be immediate by those, among
whom it is to be finally divided, but is postponed to a particular period,
as the death of A, then the children or individuals who answer the general
description at that time, when distribution is to be made, are entitled to
take, in exclusion of those afterwards coming in esse. 1 Ves. sen. 111; 1
Bro. C. C. 386; Id. 530; Id. 582; Id. 537; 1 Atk. 509; 2 Atk. 329; 5 Ves.
136; 3 Bro. C. C. 417; 1 Cox, 327; 8 Ves. 375; 15 Ves. 122; 1 Madd. R. 290;
1 Ball & Beat. 449.
8.-5. The word "children" does not, ordinarily and properly speaking,
comprehend grandchildren or issue generally; these are included in that term
only in two cases, namely, 1. From necessity, which occurs where the will
would remain inoperative unless the sense of the word "children" were
extended beyond its natural import; and, 2. Where the testator has shown by
other words, that he did not intend to use the term children in its proper
and actual meaning, but in a more extended sense. 1 Supp. to Ves. jr. 202,
note 2, to Bristow v. Ward. In the following cases, the word children was
extended beyond its natural import from necessity. 6 Rep. 16; 10 Ves. 201; 2
Desaus. R. 123, in note. The following are instances where by using the
words children and issue, indiscriminately, the testator showed his
intention to use the former term in the sense of issue so as to entitle
grandchildren, &c. to take. 1 Ves. sen. 196; S. C. Ambl. 555; 3 Ves. 258; 3
Ves. & Bea. 68; 4 Ves. 437; 2 Supp. to Ves. jr. 158. There is another class
of cases wherein it was determined that grandchildren, &c. were not included
in the word children. 2 Vern. 107; 4 Ves. 692; 10 Ves. 195; 3 Ves. & Bea.
59; see 2 Desauss. 308.
9.-2. Of legacies to natural children. 1. Natural children unborn at
the date of the will, cannot take under a bequest to the children generally,
or to the illegitimate children of A B by Mary C; because a natural child
cannot take as the issue of a particular person, until it has acquired the
reputation of being the child of that person, which cannot be before its
birth. Co, Litt. 3, b.
10.-2. Natural children, unborn at the date of the will and described
as children of the testator or another man, to be born of a particular
woman, cannot take under such a description. 1 Peere, Wms. 529; 18 Ves. 288.
11.-3. A legacy to an illegitimate child in ventre sa mere, described
as the child of the testator or of another man, will fail, since whether the
testator or such person were or were not in truth the father, is a fact
which can only be ascertained by evidence that public policy forbids to be
admitted. 1 Meriv. 141 to 152.
12.-4. A child in ventre sa mere described merely as a child with
which the mother is enceinte, without mentioning its putative father; or if
the testator express a belief that the child is his own, and provide for it
under that impression, regardless of the chance of being mistaken; then the
child will in the first place be capable of taking and in the second, as
presumed, be also, entitled in consequence of the testator's intent to
provide for it, whether he be the father or not. 1 Meriv. 148, 152.
13.-5. Natural children in existence, having acquired by reputation
the name and character of children of a particular person, prior to the date
of the will, are capable of taking under the name of children. 1 P. Wms.
529; 1 Ves. & Bea. 467. But the term child, son, issue, and every other word
of that species, is to be considered as prima facie to mean legitimate
child, son, or issue. Id.
14.-6. Whether such children take or not depends upon the evidence of
the testator's intention, manifested by the will, to include them in the
term children; these cases are instances where the evidence of such
intention was deemed insufficient. 5 Ves. 530; 1 Ves. & Bea. 454; 6 Ves. 43,
48; 1 Ves. & Bea. 4619; and see 1 Ves. & Bea. 456; 2 East, 530, 542. In the
following, the evidence of intention was held to be sufficient. 1 Ves. &
Bea. 469; Blundell v. Dunn, cited in 1 Madd. 433; Beachcroft v. Beachcroft,
cited in 1 Madd. 430; 2 Meriv. 419.
15.-3. Of legacies of personal estate to a man and his heirs. 1. A
legacy to A and his heirs, is an absolute legacy to A, and the whole
interest of the money vests in him for his use. 4 Mad. 361. But when no
property in the bequest is given to A, and the money is bequeathed to his
heirs, or to him with a limitation to his heirs, if he die before the
testator, and the contingency happens, then if there be nothing in the will
showing the sense in which the testator made use of the word heirs, the next
of kin of A, are entitled to claim under the description, as the only
persons appointed by law to succeed to personal estate. 5 Ves. 403; 4 Ves.
649; 1 Jac. & Walk. 388.
16.-2. A bequest to the heirs of an individual, without addition or
explanation, will belong to the next of kin; the rule, however, is subject
to, alteration by the intention of the testator. If then the contents of the
will show, that by the word heirs the testator meant other persons than the
next of kin, those persons will be entitled. Ambl. 273; 1 P. Wms. 432;
Forrest, 56; 2 Atk. 89; See, also, 1 Ves. jr. 145; 4 Madd. 361; 14 Ves. 488;
1 Car. Law R. 484.
17.-4. Legacies to issue. 1. The term issue, is of very extensive
import, and when used as a word of purchase, and unconfined by any
indication of intention, will comprise all persons who can claim as
descendants from or through the person to whose issue the bequest is made;
and in order to restrain the legal sense of the term, a clear intention must
appear upon the will. 3 Ves. 257; Id. 421; 1 Meriv. 434; 13 Ves. 344.
18.-2. Where it appears clearly to be a testator's meaning to provide
for a class of individuals living at the date of his will, and he provides
against a lapse by the death of any of them in his lifetime, by the
substitution of their issue; in such case, although the word will include
all the descendants of the designated legatees, yet if any person who would
have answered the description of an original legatee when the will was made,
be then dead, leaving issue, that issue will be excluded, because the issue
of those individuals only who were capable of taking original shares, at the
date of the will, were intended to take by substitution; so that as the
person who was dead when the will was made, could never have taken an
original share, there is nothing for his issue to take in his place. 1
Meriv. 320.
19.-3. When it can be collected from the will that a testator in using
the word issue, did not intend it should be understood in its common
acceptation, the import of it will be confined to the persons whom it was
intended to comprehend. 7 Ires. 531; 3 Ves. 383; 7 Ves. 522; 1 Ves. jr. 143.
20.-5. Of legacies to relations. 1. Under a bequest to relations, none
are entitled but those, who in the case of intestacy, could have claimed
under the statute of distribution. Forrest. 251; 4 Bro. C. C. 207; 1 Bro. C.
C. 31; 3 Bro. C. C. 234; 5 Ves. 529; Ambl. 507; Dick. 380; 1 P. Wms. 327; 2
Ves. sen. 527; 19 Ves. 403; 1 Taunt. 263; 1 T. R. 435; n. See the following
cases where the bequests were to "poor relations;" 1 P. Wms. 327; 8 Serg. &
Rawle, 45; 1 Sch. & Lef. 111; "most necessitous relations;" Ambl. 636.
21.-2. To this general rule there are several exceptions, namely,
first, when the testator has delegated a power to an individual to
distribute the fund among the testator's relations according to his
discretion; in such an instance whether the bequest be made to "relations"
generally, or to "poor," or "poorest," or "most necessitous" relations, the
person may exercise his discretion in distributing the property among the
testator's kindred although they be not within the statute of distributions.
1 Scho. & Lef. 111, and 16 Ves. 43; 1 T. R. 485, n.; Ambl. 708; 16 Ves. 27,
43. Secondly. Another exception occurs where a testator has fixed ascertain
test, by which the number of relatives intended by him to participate in his
property, can be ascertained; as if a legacy be given to such of the
testator's relations as should not be worth a certain sum, in such case, it
seems, all the testator's relatives answering the description would take,
although not within the degrees of the statute of distributions. Ambl. 798.
Thirdly. Another exception to the general rule is, where a testator has
shown an intention in his will, to comprehend relations more remote than
those entitled nuder the statute; in that case his intention will prevail. 1
Bro. C. C. 32, n., and see 1 Cox, 235.
22.-3. The word "relation" or "relations," may be so qualified as to
exclude some of the next of kin from participating in the bequest; and this
will also happen when the terms of the bequest are to my "nearest
relations;" 19 Ves. 400; Coop. 275; 1 Bro. C. C. 293; and see 1 Ves. sen.
337; Ambl. 70; to testator's relations of his name 1 Ves. sen. 336; or
stock, or blood; 15 Ves. 107.
23.-4. The word relations being governed by the statute of
distributions, no person can regularly answer the description but those who
are of kin to the testator by blood, consequently relatives by marriage are
not included in a bequest to relations generally. 1 Ves. sen. 84; 3 Atk.
761; 1 Bro. C. C. 71, 294.
24.-6. Legacies to next of kin. 1. When a bequest is made to
testator's next of kin, it is understood the testator means such as are
related to him by blood. But it is not necessary that the next of kin should
be of the whole blood, the half blood answering the description of next of
kin, are equally entitled with the whole, and if nearer in degree, will
exclude the whole blood. 1 Ventr. 425; Alley. L. D. of Mar. 36; Sty. 74.
25-2. Relations by marriage are in general excluded from
participating in a legacy given to the next of kin. 18 Ves. 53; 14 Ves. 376,
381, 386; and, see 3 Ves. 244; 18 Ves. 49. But this is only a prima facie
construction, which may be repelled by the contrary intention of a testator.
14 Ves. 382.
26.-3. A testator is to be understood to mean by the expression "next
of kin," when he does not refer to the statute, or to a distribution of the
property as if he had died intestate, those persons only who should be
nearest of kin to him, to the exclusion of others who might happen to be
within the degree limited by the statute. 3 Bro. C. C. 69; 19 Ves. 404; 14
Ves. 385. See 3 Bro. C. C. 64.
27.-4. Nearest of kin will alone be entitled under a bequest to the
next of kin in equal degree. 12 Ves. 433; 1 Madd. 36.
28.-7. Legacies to legal personal representatives or to personal
representatives. 1. Where there is nothing on the face of the will to
manifest a different intention, the legal construction of the words
"personal representatives," or "legal personal representatives," is
executors or administrators of the person described. 6 Ves. 402; 6 Mead.
159. A legacy limited to the personal or legal personal representatives of
A, unexplained by anything in the will, will entitle A's executors or
administrators to it, not as representing A, or as part of his estate, or
liable to his debts, but in their own right as personae designated by the
law. 2 Mad. 155.
29.-2. In the following cases the executors or administrators were
held to be entitled under the designation of personal, or legal personal
representatives. 3 Ves. 486; Anstr. 128.
30.-3. The next of kin and not the executors or administrators, were,
in the following cases, held to be entitled under the same designation. 3
Bro. C. C. 224, approved by Lord Rosslyn in 3 Ves. 486; 3 Ves. 146; 19 Ves.
404.
31.-4. The same words were held to mean children, grandchildren, &c.
to the exclusion of those persons who technically answer the description of
"personal representatives." 3 Ves. 383.
32.-5. A husband or wife may take as such, if there is a manifest
intention in the will that they should and if either be clothed with the
character of executor or administrator of the other, the prima facie legal
title attaches to the office, which will prevail, unless an intention to the
contrary be expressed or clearly apparent in the instrument. See 14 Ves.
382; 18 Ves. 49; 3 Ves. 231; 2 Ves. sen. 84; 3 Atk. 758; 1 Rop. on H.& W.,
326; 2 Rop. on H.& W., 64.
33.-8. The construction of bequests when limited to executors and
administrators. 1. Where personal estate is given to B, his executors and
administrators, the law transfers to B the absolute interest in the legacy.
15 Ves. 537; 2 Mad. 155.
34.-2. If no interest were given to B, and the bequest were to his
executors and administrators, it should seem that the individual answering
the description would be beneficially entitled as personal designatee, in
analogy to the devise of real estate to the heir of B, without a previous
limitation to B, whose heir would take by purchase in his own right, and not
by force of the word "heir" considered as a term of limitation. 2 Mad. 155.
See 8 Com. Dig. Devise of Personal Property, xxxvi.
35:-9. Legacies to descendants. 1. A legacy to the descendants of A,
will comprehend all his children, grandchildren, &c.; and if the will direct
the bequest to be divided equally among them, they are entitled to the fund
per capita. Ambl. 97; 3 Bro. C. C. 369.
36.-10. Legacies to a family. 1. The word family, when applied to
personal property, is synonymous with "kindred," or "relations;" see 9 Ves.
323. This being the ordinary acceptation of the word family, it may
nevertheless be confined to particular relations by the context of the will;
or the term may be enlarged by it, so that the expression may, in some
cases, mean children, or next of kin, and in others may even include
relations by marriage. See 8 Ves. 604; Dy. 333; 5 Ves. 166; Hob. 33; Coop.
122; 5 M. & S. 126; 17 Ves. 263; 1 Taunt. 266; 14 Ves. 488; 9 Ves. 319; 3
Meriv. 689.
37.-11. Legacies to servants. 1. To entitle himself to a bequest "to
servants," the relation of master and servant must have arisen out of a
contract by which the claimant must have formed an engagement which entitled
the master to the service of the individual during the whole period, or each
and every part of the time for which he contracted to, serve. 12 Ves. 114; 2
Vern. 546.
38.-2. To claim as a servant, the legatee must in general be in the
actual service of the testator at the time of his death. Still a servant may
be considered by a testator as continuing in his employment, and be intended
to take under the bequest, although he quitted the testator's house previous
to his death, so as to answer the description in the instrument; and to
establish which fact declarations of the testator upon the subject cannot be
rejected; but testimony that the testator meant a servant notwithstanding
his having left the testator's service, to take a legacy bequeathed only to
servants in his employment at his death, cannot be received as in direct
opposition to the will. 16 Ves. 486, 489.
39.-12. The different periods of time at which persons answering the
descriptions of next of kin, family relations, issue, heirs, descendants and
personal representatives, (to whom legacies are given by those terms
generally, and without discrimination,) were required to be in esse, for
the purpose of participating in the legatory fund. 1. When the will
expresses or clearly shows that a testator in bequeathing to the relations,
&c. of a deceased individual, referred to such of them as were in existence
when the will was made, they only will be entitled; as if the bequest was,
"I give 1000 to the descendants of the late A B, now living," those
descendants only in esse at the date of the will can claim the legacy. Ambl.
397.
40.-2. But, in general, a will begins to speak at the death of the
testator, and consequently in ordinary cases, relations, next of kin, issue,
descendants, &c., living at that period will alone divide the property
bequeathed to them by those words. See 1 Ball &. Beat. 459; 1 Bro. C. C.
532; 3 Bro. C. C. 224; 5 Ves. 399; 1 Jac. & Walk, 388, n.; 3 Meriv. 689; 5
Binn. 607; 2 Murph. 178.
41.-3. If a testator express, or his intention otherwise appear from
his will, that a bequest to his relations, &c., living at the death of a
person, or upon the happening of any other event, should take the fund, his
next of kin only in existence at the period described, will be entitled, in
exclusion of the representatives of such of them as happened to be then
dead. 3 Ves. 486; 9 Ves. 325; 1 Atk. 469; 15 Ves. 27; 4 Vin. Abr. 485, pl.
16; 8 Ves. 38; 5 Binn. 606; see 6 Munf. 47.
42.-13. When the fund given to legatees, by the description of
"family," "relations" "next in kin," &c., is to be divided among them either
per capita, or per stirpes, or both per stirpes et capita. 1. Where the
testator gives a legacy to his relations generally, if his next of kin be
related to him in equal degree, as brothers, there being no children of a
deceased brother, the brothers will divide the fund among them in equal
shares, or per capita; each being entitled in his own right to an equal
share. So it would be if all the brothers had died before the testator, one
leaving two children, another three, &c., all the nephews and nieces would
take in equal shares, per capita, in their own rights, and not as
representing their parents; because they are sole next of kin, and related
to the testator in equal degree. Pre. Ch. 54; and see 1 P. Wms. 595; 1 Atk.
454; 3 P. Wms. 50. But if the testator's next of kin happen not to be
related to him in equal degrees, as a brother, and the children of a
deceased brother, so as that under the statute the children would take per
stirpes as representing their parent, namely, the share he would have taken
had he been living; yet if the testator has shown au intention that his next
of kin shall be entitled to his property in equal shares, i. e. per capita,
the distribution by the statute will be superseded. This may happen where
the bequest is to relations, next of kin, &c., to be equally divided among
them; or by expressions of like import. Forrest. 251; and see 1 Bro. C. C.
33; 8 Serg. & Rawle, 43; 11 Serg. & Rawle 103; 1 Murph. 383.
43.-2. Where a bequest is to relations, &c., those persons only who
are next of kin are entitled, and the statute of distributions is adopted,
not only to ascertain the persons who take, but also the proportions and
manner in which the property is to be divided; the will being silent upon
the subject, if the next of kin of the person described be not related to
him in equal degree, those most remote can only claim per stirpes, or in
right of those who would have been entitled under the statute if they had
been living. Hence it appears that taking per stirpes, always supposes an
inequality in relationship. For example, where a testator bequeaths a legacy
to his "relations," or "next of kin," and leaves at his death two children,
and three grandchildren, the children of a deceased child; the grandchildren
would take their parents' share, that is, one-third per stirpes under the
statute, as representing their deceased parent. 1 Cox, 235.
44.-3. Where a testator bequeaths personal estate to several persons
as tenants in common, with a declaration that upon all or any of their
deaths before a particular time, their respective shares shall be equally
divided among the issue or descendants of each of them, and they die before
the arrival of the period, some leaving children, others grandchildren, and
great grandchildren, and other grandchildren and more remote descendants in
such case the issue of each deceased person will take their parents share
per stirpes; and such issue, whether children only, or children and
grandchildren, &c., will divide each parent's share among them equally per
capita. 1 Ves. sen. 196.
45.-14. The effect of a mistake in the names of legatees. 1. Where the
name has been mistaken in a will or deed, it will be corrected from the
instrument, if the intention appear in the description of the legatee or
donee, or in other parts of the will or deed. For example, if a testator
give a bequest to Thomas second son of his brother John, when in fact John
had no son named Thomas, and his second son was called William; it was held
William was entitled. 19 Ves. 381; Coop. 229; and see Ambl. 175; Co. Litt.
3, a; Finch's R. 403; 3 Leon, 18. When a bequest is made to a class of
individuals, nominatim, and the name or christian name of one of them is
omitted, and the name or christian name of another is repeated; if the
context of the will show that the repetition of the name was error, and the
name of the person omitted was intended to have been inserted, the mistake
will be corrected. As where a testator gave his residuary estate to his six
grandchildren, by their christian names. The name of Ann, one of them, was
repeated, and the name of Elizabeth, another of them, was omitted. The
context of the will clearly showed the mistake which had occurred, and
Elizabeth was admitted to an equal share in the bequest. 1 Bro. C. C. 30;
see 2 Cox, 186. And is to cases where parol evidence will be received to
prove the mistakes in the names or additions of legatees, and to ascertain
the proper person, see 3 B. & A. 632 to 642; 6 T. R. 676; 2 P. Wms. 137; 1
Atk. 410: 1 P. Wms. 421; 5 Rep. 68, b; 6 Ves. 42; 7 East, 302; Ambl. 75.
46.-15. The effect of mistakes in the descriptions of legatees, and
the admission of parol evidence in those cases. 1. Where the description of
the legatee is erroneous, the error not having been occasioned by any fraud
practiced upon the testator, and there is no doubt as to the person who was
intended to be described, the mistake will not disappoint the bequest. Hence
if a legacy be given to a person by a correct name, but a wrong description
or addition, the mistaken description will not vitiate the bequest, but be
rejected; for it is a maxim that veritas nominis tollit errorem
demonstrationis. Ld. Bac. Max. reg. 25; and see 2 Ves. jr. 589; Ambl. 75; 4
Ves. 808; Plowd. 344; 19 Ves. 400.
47.-2. Wherever a legacy is given to a person under a particular
description and character which he himself has falsely assumed; or, where a
testator, induced by the false representations of third persons to regard
the legatee in a relationship which claims his bounty, bequeaths him a
legacy according with such supposed relationship, and no motive for such
bounty can be supposed, the law will not, in either case, permit the legatee
to avail himself of the description, and therefore he cannot demand his
legacy. See 4 Ves. 802; 4 Bro. C. C. 20.
48.-3. The same principle which has established the admissibility of
parol evidence to correct errors in naming legatees, authorizes its
allowance to rectify mistakes in the description of them. Ambl. 374; 1 Ves.
jr. 266; 1 Meriv. 184.
49.-4. If neither the will nor extrinsic evidence is sufficient to
dispel the ambiguity arising from the attempt to apply the description of
the legatee to the person intended by the testator, the legacy must fail
from the uncertainty of its object. 7 Ves. 508; 6 T. R. 671.
50.-16. The consequences of imperfect descriptions of, or reference to
legatees, appearing upon the face of wills, and when parol evidence is
admissible. These cases occur, 1. When a blank is left for the Christian
name of the legatee. 2. When the whole name is omitted. 3. When the testator
has merely written the initials of the name; and, 4. When legatees have been
once accurately described, but in a subsequent reference to one of them, to
take an additional bounty, the person intended is doubtful, from ambiguity
in the terms.
51.-1. When a blank is left for the Christian name of the legatee,
evidence is admissible to supply the omission. 4 Ves. 680.
52.-2. When the omission consists of the entire name of the legatee,
parol evidence cannot be admitted to supply the blank. 2 Ch. Ca. 51.; 2 Atk.
239; 3 Bro. C.C. 311.
53.-3. When a legatee is described by the initials of his name only,
parol evidence may be given to prove his identity. 3 Ves. 148. When a patent
ambiguity arises from an imperfect reference to one of two legatees
correctly described in a prior part of the will, parol evidence is admitted
to show which of them was intended, so that the additional legacy intended
for the one will depend upon the removal of the obscurity by a sound
interpretation of the whole will. 3 Atk. 257 and see 2 Ves. 217; 2 Eden,
107.
See further, upon this subject, Lownd on Leg. ch. 4; 1 Roper on Leg.
ch. 2; Com. Dig. Chancery, 3 Y; Bac. Abr. h.. t. Vin. Abr. h.t.; Nels. Abr.
h.t.; Whart. Dig. Wills, G. P.; Hamm. Dig. 756; Grimk. on Ex. ch. 5;
Toll. on Executors, ch. 4.
|
| | podobné slovo | definícia |
delegate
(mass) | delegate
- zástupca, zastupovať |
delegated
(mass) | delegated
- zastúpený |
delegate
(encz) | delegate,delegát n: pl. lukedelegate,pověřit v: např. pravomocí lukedelegate,zástupce n: lukedelegate,zastupovat v: luke |
delegated
(encz) | delegated,pověřený adj: lukedelegated,zastoupený v: luke |
delegates
(encz) | delegates,delegáti n: pl. lukedelegates,deleguje v: lukedelegates,pověřuje v: luke |
legatee
(encz) | legatee,dědic [eko.] RNDr. Pavel Piskačlegatee,obdařený odkazem Jaroslav Šedivý |
legateship
(encz) | legateship, n: |
relegate
(encz) | relegate,degradovat v: Zdeněk Brožrelegate,odsunout v: Zdeněk Brožrelegate,přeřadit v: Zdeněk Brožrelegate,sesadit v: Zdeněk Brožrelegate,vyhostit v: Zdeněk Brožrelegate,vykázat v: Zdeněk Brožrelegate,vypovědět v: Zdeněk Brož |
relegated
(encz) | relegated,odsunutý adj: Zdeněk Brožrelegated,sesazený adj: Zdeněk Brož |
walking delegate
(encz) | walking delegate, n: |
Ablegate
(gcide) | Ablegate \Ab"le*gate\, v. t. [L. ablegatus, p. p. of ablegare;
ab + legare to send with a commission. See Legate.]
To send abroad. [Obs.] --Bailey.
[1913 Webster]Ablegate \Ab"le*gate\, n. (R. C. Ch.)
A representative of the pope charged with important
commissions in foreign countries, one of his duties being to
bring to a newly named cardinal his insignia of office.
[1913 Webster] |
Apostolic delegate
(gcide) | Apostolic delegate \Ap`os*tol"ic del"e*gate\ (R. C. Ch.)
The diplomatic agent of the pope highest in grade, superior
to a nuncio.
[Webster 1913 Suppl.] Apostolicism |
Co-legatee
(gcide) | Co-legatee \Co-leg`a*tee"\, n.
A joint legatee.
[1913 Webster] |
Court of delegates
(gcide) | Delegate \Del"e*gate\, n. [L. delegatus, p. p. of delegare to
send, delegate; de- + legare to send with a commission, to
depute. See Legate.]
1. Any one sent and empowered to act for another; one deputed
to represent; a chosen deputy; a representative; a
commissioner; a vicar.
[1913 Webster]
2.
(a) One elected by the people of a territory to represent
them in Congress, where he has the right of debating,
but not of voting.
(b) One sent by any constituency to act as its
representative in a convention; as, a delegate to a
convention for nominating officers, or for forming or
altering a constitution. [U.S.]
[1913 Webster]
Court of delegates, formerly, the great court of appeal
from the archbishops' courts and also from the court of
admiralty. It is now abolished, and the privy council is
the immediate court of appeal in such cases. [Eng.]
[1913 Webster] |
Delegate
(gcide) | Delegate \Del"e*gate\, a. [L. delegatus, p. p.]
Sent to act for or represent another; deputed; as, a delegate
judge. "Delegate power." --Strype.
[1913 Webster]Delegate \Del"e*gate\, v. t. [imp. & p. p. Delegated; p. pr. &
vb. n. Delegating.]
1. To send as one's representative; to empower as an
ambassador; to send with power to transact business; to
commission; to depute; to authorize.
[1913 Webster]
2. To intrust to the care or management of another; to
transfer; to assign; to commit.
[1913 Webster]
The delegated administration of the law. --Locke.
[1913 Webster]
Delegated executive power. --Bancroft.
[1913 Webster]
The power exercised by the legislature is the
people's power, delegated by the people to the
legislative. --J. B. Finch.
[1913 Webster]Delegate \Del"e*gate\, n. [L. delegatus, p. p. of delegare to
send, delegate; de- + legare to send with a commission, to
depute. See Legate.]
1. Any one sent and empowered to act for another; one deputed
to represent; a chosen deputy; a representative; a
commissioner; a vicar.
[1913 Webster]
2.
(a) One elected by the people of a territory to represent
them in Congress, where he has the right of debating,
but not of voting.
(b) One sent by any constituency to act as its
representative in a convention; as, a delegate to a
convention for nominating officers, or for forming or
altering a constitution. [U.S.]
[1913 Webster]
Court of delegates, formerly, the great court of appeal
from the archbishops' courts and also from the court of
admiralty. It is now abolished, and the privy council is
the immediate court of appeal in such cases. [Eng.]
[1913 Webster] |
Delegated
(gcide) | Delegate \Del"e*gate\, v. t. [imp. & p. p. Delegated; p. pr. &
vb. n. Delegating.]
1. To send as one's representative; to empower as an
ambassador; to send with power to transact business; to
commission; to depute; to authorize.
[1913 Webster]
2. To intrust to the care or management of another; to
transfer; to assign; to commit.
[1913 Webster]
The delegated administration of the law. --Locke.
[1913 Webster]
Delegated executive power. --Bancroft.
[1913 Webster]
The power exercised by the legislature is the
people's power, delegated by the people to the
legislative. --J. B. Finch.
[1913 Webster] |
Legate
(gcide) | Legate \Leg"ate\ (l[e^]g"[asl]t), n. [OE. legat, L. legatus, fr.
legare to send with a commission or charge, to depute, fr.
lex, legis, law: cf. F. l['e]gat, It. legato. See Legal.]
1. An ambassador or envoy.
[1913 Webster]
2. An ecclesiastic representing the pope and invested with
the authority of the Holy See.
[1913 Webster]
Note: Legates are of three kinds: (a) Legates a latere, now
always cardinals. They are called ordinary or
extraordinary legates, the former governing provinces,
and the latter class being sent to foreign countries on
extraordinary occasions. (b) Legati missi, who
correspond to the ambassadors of temporal governments.
(c) Legati nati, or legates by virtue of their
office, as the archbishops of Salzburg and Prague.
[1913 Webster]
3. (Rom. Hist.)
(a) An official assistant given to a general or to the
governor of a province.
(b) Under the emperors, a governor sent to a province.
[1913 Webster] |
Legatee
(gcide) | Legatee \Leg`a*tee"\ (l[e^]g`[.a]*t[=e]"), n. [See Legacy.]
(Law)
One to whom a legacy is bequeathed.
[1913 Webster] |
Legateship
(gcide) | Legateship \Leg"ate*ship\ (l[e^]g"[asl]t*sh[i^]p), n.
The office of a legate.
[1913 Webster] |
Prolegate
(gcide) | Prolegate \Pro"leg`ate\ (?; 48), n. [L. prolegatus; pro for +
legatus legate.] (Rom. Hist.)
The deputy or substitute for a legate.
[1913 Webster] |
Relegate
(gcide) | Relegate \Rel"e*gate\ (r?l"?-g?t), v. t. [imp. & p. p.
Relegated (-g?`t?d); p. pr. & vb. n. Relegating.] [L.
relegatus, p. p. of relegare; pref. re- re- + legare to send
with a commission or charge. See Legate.]
To remove, usually to an inferior position; to consign; to
transfer; specifically, to send into exile; to banish.
[1913 Webster]
It [the Latin language] was relegated into the study of
the scholar. --Milman.
[1913 Webster] |
Relegated
(gcide) | Relegate \Rel"e*gate\ (r?l"?-g?t), v. t. [imp. & p. p.
Relegated (-g?`t?d); p. pr. & vb. n. Relegating.] [L.
relegatus, p. p. of relegare; pref. re- re- + legare to send
with a commission or charge. See Legate.]
To remove, usually to an inferior position; to consign; to
transfer; specifically, to send into exile; to banish.
[1913 Webster]
It [the Latin language] was relegated into the study of
the scholar. --Milman.
[1913 Webster] |
Residuary legatee
(gcide) | Residuary \Re*sid"u*a*ry\ (-?-r?), a. [See Residue.]
Consisting of residue; as, residuary matter; pertaining to
the residue, or part remaining; as, the residuary advantage
of an estate. --Ayliffe.
[1913 Webster]
Residuary clause (Law), that part of the testator's will in
which the residue of his estate is disposed of.
Residuary devise (Law), the person to whom the residue of
real estate is devised by a will.
Residuary legatee (Law), the person to whom the residue of
personal estate is bequeathed.
[1913 Webster] |
Subdelegate
(gcide) | Subdelegate \Sub*del"e*gate\, n.
A subordinate delegate, or one with inferior powers.
[1913 Webster]Subdelegate \Sub*del"e*gate\, v. t.
To appoint to act as subdelegate, or as a subordinate; to
depete.
[1913 Webster] |
Undelegated
(gcide) | Undelegated \Undelegated\
See delegated. |
Vice legate
(gcide) | Vice \Vice\, a. [Cf. F. vice-. See Vice, prep.]
Denoting one who in certain cases may assume the office or
duties of a superior; designating an officer or an office
that is second in rank or authority; as, vice president; vice
agent; vice consul, etc.
[1913 Webster]
Vice admiral. [Cf. F. vice-amiral.]
(a) An officer holding rank next below an admiral. By the
existing laws, the rank of admiral and vice admiral in
the United States Navy will cease at the death of the
present incumbents.
(b) A civil officer, in Great Britain, appointed by the lords
commissioners of the admiralty for exercising admiralty
jurisdiction within their respective districts.
Vice admiralty, the office of a vice admiral.
Vice-admiralty court, a court with admiralty jurisdiction,
established by authority of Parliament in British
possessions beyond the seas. --Abbott.
Vice chamberlain, an officer in court next in rank to the
lord chamberlain. [Eng.]
Vice chancellor.
(a) (Law) An officer next in rank to a chancellor.
(b) An officer in a university, chosen to perform certain
duties, as the conferring of degrees, in the absence of
the chancellor.
(c) (R. C. Ch.) The cardinal at the head of the Roman
Chancery.
Vice consul [cf. F. vice-consul], a subordinate officer,
authorized to exercise consular functions in some
particular part of a district controlled by a consul.
Vice king, one who acts in the place of a king; a viceroy.
Vice legate [cf. F. vice-l['e]gat], a legate second in rank
to, or acting in place of, another legate.
Vice presidency, the office of vice president.
Vice president [cf. F. vice-pr['e]sident], an officer next
in rank below a president.
[1913 Webster] |
apostolic delegate
(wn) | apostolic delegate
n 1: (Roman Catholic Church) a representative of the Holy See in
a country that has no formal diplomatic relations with it |
delegate
(wn) | delegate
n 1: a person appointed or elected to represent others
v 1: transfer power to someone [syn: delegate, depute]
2: give an assignment to (a person) to a post, or assign a task
to (a person) [syn: delegate, designate, depute,
assign] |
eucalyptus delegatensis
(wn) | Eucalyptus delegatensis
n 1: tall timber tree with hard heavy pinkish or light brown
wood [syn: alpine ash, mountain oak, {Eucalyptus
delegatensis}] |
legatee
(wn) | legatee
n 1: someone to whom a legacy is bequeathed |
legateship
(wn) | legateship
n 1: the post or office of legate [syn: legation,
legateship] |
relegate
(wn) | relegate
v 1: refer to another person for decision or judgment; "She
likes to relegate difficult questions to her colleagues"
[syn: relegate, pass on, submit]
2: assign to a lower position; reduce in rank; "She was demoted
because she always speaks up"; "He was broken down to
Sergeant" [syn: demote, bump, relegate, break, {kick
downstairs}] [ant: advance, elevate, kick upstairs,
promote, raise, upgrade]
3: expel, as if by official decree; "he was banished from his
own country" [syn: banish, relegate, bar]
4: assign to a class or kind; "How should algae be classified?";
"People argue about how to relegate certain mushrooms" [syn:
relegate, classify] |
walking delegate
(wn) | walking delegate
n 1: a union representative who visits workers at their jobs to
see whether agreements are observed |
CONDELEGATE
(bouvier) | CONDELEGATES. Advocates who have been appointed judges of the high court of
delegates are so called. Shelf. on Lun. 310.
|
HIGH COURT OF DELEGATES
(bouvier) | HIGH COURT OF DELEGATES, English law. The name of a court established by
stat. 25 Hen. VIII. c. 19, s. 4. No permanent judges are appointed, but in
every case of appeal to this court, there issues a special commission, under
the great seal of Great Britain, directed to such persons as the lord
chancellor, lord keeper, or lords commissioners of the great seal, for the
time being, shall think fit to appoint to bear and determine the same. The
persons usually appointed, are three puisne judges, one from each court of
common law, and three or more civilians; but in special cases, a fuller
commission is sometimes issued, consisting of spiritual and temporal peers,
judges of the common law, and civilians, three of each description. In case
of the court being equally divided, or no common law judge forming part of
the majority, a commission of adjuncts issues, appointing additional judges
of the same description. 1 Hagg. Eccl. R. 384; 2 Hagg. Eccl. R. 84; 3 Hagg.
@Eccl. R. 471; 4 Burr. 2251.
|
LEGATE
(bouvier) | LEGATES. Legates are extraordinary ambassadors sent by the pope to catholic
countries to represent him, and to exercise his jurisdiction. They are
distinguished from the ambassadors of the pope who are sent to other powers.
2. The canonists divide them into three kinds, namely: 1. Legates A
latere. 2. Legati missi. 3. Legati nati.
3.-1. Legates latere hold the first rank among those who are honored
by a legation; they are always chosen from the college of cardinals, and are
called a latere, in imitation of the magistrates of ancient Rome, who were
taken from the court, or side of the emperor.
4.-2. The legati missi are simple envoys.
5.-3. The legati nati, are those who are entitled to be legates by
birth.
LEGATEE. A legatee is a person to whom a legacy is given by a last will and
testament.
2. It is proposed to consider, 1. Who may be a legatee. 2. Under what
description legatees may take.
3.-1. Who may be a legatee. In general, every person may be a
legatee. 2 Bl. Com. 512. But a person civilly dead cannot take a legacy.
II. Under what description legatees may take.
4.-1. Of legacies to legitimate children. 1. When it appears from
express declaration, or a clear inference arising upon the face of the will,
that a testator in giving a legacy to a class of individuals generally,
intended to apply the terms used by him to such persons only as answered the
description at the date of the instrument, those individuals alone will be
entitled, although if no such intention had been expressed, or appeared in
the will, every person failing within that class at the testator's death,
would have been included in the terms of the bequest. 1 Meriv. 320; and see
3 Ves. 611; Id. 609; 15 Ves. 363; Ambl. 397; 2 Cox, 291; 4 Bro. C. C. 55; 3
Bro. C. C. 148; 2 Cox, 384.
5.-2. Where a legacy is given to a class of individuals, as to
children, in general terms, and no period is appointed for the distribution
of it, the legacy is due at the death of the testator; the payment of it
being merely postponed to the end of a year after that event, for the
convenience of the executor or administrator in administering the assets.
The rights of the legatees are finally settled, and determined at the
testator's decease. 1 Ball & B. 459; 2 Murph. 178. Upon this principal, is
founded the well established rule that children in existence at that period,
or legally considered so to be, are alone entitled to participate in the
bequest. 1 Bro. C. C. 532, n.; 2 Bro. C. C. 658; 2 Cox, 190.; 1 Dick. 344;
14 Ves. 576; 1 Ves. jr. 405; 1 Cox, 68; 3 Bro. C. C. 391; Amb. 448; 1 Ves.
sen. 485; 5 Binn. 607.
6.-3. A child in ventre sa mere takes a share in a fund bequeathed to
children, under the general description of "children," or of "children
living at the testator's death." 1 Ves. sen. 85; and see 1 P. Wms. 244, 341;
2 Bro. C. C. 63; 1 Salk. 229; 2 Cox, 425; 5 Serg. & Rawle, 38. See tit. In
ventre sa mere.
7.-4. When legacies are given to a class of individuals, generally,
payable at a future period, as to the children of B, when the youngest shall
attain the age of twenty-one, or to be divided among them upon the death of
C; any child who can entitle itself under the description, at the time when
the fund is to be divided, may claim a share, viz: as well children living
at the period of distribution, although not born till after the testator's
death, as those born before, and living at the happening of that event. 1
Supp. to Ves. jr. 115, note 3, to Hill v. Chapman; 2 Supp. to Ves. jr. 157,
note 1, to Lincoln v. Pelham. This general rule may be divided into two
branches. First, when the division of the fund is postponed until a child
or children attain a particular age; as, when a legacy is given to the
children of A, at the age of twenty-one; in that case, so soon as the eldest
arrives at that period, the fund is distributable among so many as are in
existence at that time; and no child born afterwards can be admitted to a
share, because the period of division fixes the number of legatees.
Distribution is then made, and nothing remains for future partition. 1 Ball
& Beat. 459; 3 Bro. C. C. 402; 5 Binn. 607; 2 Ves. jr. 690; 3 Ves. 730; 3
Bro. C. C. 352, ed. by Belt; 14 Ves. 256; 6 Ves. 345; 10 Ves. 152; 11 Ves.
238. Second, when the distribution of the fund is deferred during the life
of a person in esse. In these cases, when the enjoyment of the thing given,
is by the testator's express declaration not to be immediate by those, among
whom it is to be finally divided, but is postponed to a particular period,
as the death of A, then the children or individuals who answer the general
description at that time, when distribution is to be made, are entitled to
take, in exclusion of those afterwards coming in esse. 1 Ves. sen. 111; 1
Bro. C. C. 386; Id. 530; Id. 582; Id. 537; 1 Atk. 509; 2 Atk. 329; 5 Ves.
136; 3 Bro. C. C. 417; 1 Cox, 327; 8 Ves. 375; 15 Ves. 122; 1 Madd. R. 290;
1 Ball & Beat. 449.
8.-5. The word "children" does not, ordinarily and properly speaking,
comprehend grandchildren or issue generally; these are included in that term
only in two cases, namely, 1. From necessity, which occurs where the will
would remain inoperative unless the sense of the word "children" were
extended beyond its natural import; and, 2. Where the testator has shown by
other words, that he did not intend to use the term children in its proper
and actual meaning, but in a more extended sense. 1 Supp. to Ves. jr. 202,
note 2, to Bristow v. Ward. In the following cases, the word children was
extended beyond its natural import from necessity. 6 Rep. 16; 10 Ves. 201; 2
Desaus. R. 123, in note. The following are instances where by using the
words children and issue, indiscriminately, the testator showed his
intention to use the former term in the sense of issue so as to entitle
grandchildren, &c. to take. 1 Ves. sen. 196; S. C. Ambl. 555; 3 Ves. 258; 3
Ves. & Bea. 68; 4 Ves. 437; 2 Supp. to Ves. jr. 158. There is another class
of cases wherein it was determined that grandchildren, &c. were not included
in the word children. 2 Vern. 107; 4 Ves. 692; 10 Ves. 195; 3 Ves. & Bea.
59; see 2 Desauss. 308.
9.-2. Of legacies to natural children. 1. Natural children unborn at
the date of the will, cannot take under a bequest to the children generally,
or to the illegitimate children of A B by Mary C; because a natural child
cannot take as the issue of a particular person, until it has acquired the
reputation of being the child of that person, which cannot be before its
birth. Co, Litt. 3, b.
10.-2. Natural children, unborn at the date of the will and described
as children of the testator or another man, to be born of a particular
woman, cannot take under such a description. 1 Peere, Wms. 529; 18 Ves. 288.
11.-3. A legacy to an illegitimate child in ventre sa mere, described
as the child of the testator or of another man, will fail, since whether the
testator or such person were or were not in truth the father, is a fact
which can only be ascertained by evidence that public policy forbids to be
admitted. 1 Meriv. 141 to 152.
12.-4. A child in ventre sa mere described merely as a child with
which the mother is enceinte, without mentioning its putative father; or if
the testator express a belief that the child is his own, and provide for it
under that impression, regardless of the chance of being mistaken; then the
child will in the first place be capable of taking and in the second, as
presumed, be also, entitled in consequence of the testator's intent to
provide for it, whether he be the father or not. 1 Meriv. 148, 152.
13.-5. Natural children in existence, having acquired by reputation
the name and character of children of a particular person, prior to the date
of the will, are capable of taking under the name of children. 1 P. Wms.
529; 1 Ves. & Bea. 467. But the term child, son, issue, and every other word
of that species, is to be considered as prima facie to mean legitimate
child, son, or issue. Id.
14.-6. Whether such children take or not depends upon the evidence of
the testator's intention, manifested by the will, to include them in the
term children; these cases are instances where the evidence of such
intention was deemed insufficient. 5 Ves. 530; 1 Ves. & Bea. 454; 6 Ves. 43,
48; 1 Ves. & Bea. 4619; and see 1 Ves. & Bea. 456; 2 East, 530, 542. In the
following, the evidence of intention was held to be sufficient. 1 Ves. &
Bea. 469; Blundell v. Dunn, cited in 1 Madd. 433; Beachcroft v. Beachcroft,
cited in 1 Madd. 430; 2 Meriv. 419.
15.-3. Of legacies of personal estate to a man and his heirs. 1. A
legacy to A and his heirs, is an absolute legacy to A, and the whole
interest of the money vests in him for his use. 4 Mad. 361. But when no
property in the bequest is given to A, and the money is bequeathed to his
heirs, or to him with a limitation to his heirs, if he die before the
testator, and the contingency happens, then if there be nothing in the will
showing the sense in which the testator made use of the word heirs, the next
of kin of A, are entitled to claim under the description, as the only
persons appointed by law to succeed to personal estate. 5 Ves. 403; 4 Ves.
649; 1 Jac. & Walk. 388.
16.-2. A bequest to the heirs of an individual, without addition or
explanation, will belong to the next of kin; the rule, however, is subject
to, alteration by the intention of the testator. If then the contents of the
will show, that by the word heirs the testator meant other persons than the
next of kin, those persons will be entitled. Ambl. 273; 1 P. Wms. 432;
Forrest, 56; 2 Atk. 89; See, also, 1 Ves. jr. 145; 4 Madd. 361; 14 Ves. 488;
1 Car. Law R. 484.
17.-4. Legacies to issue. 1. The term issue, is of very extensive
import, and when used as a word of purchase, and unconfined by any
indication of intention, will comprise all persons who can claim as
descendants from or through the person to whose issue the bequest is made;
and in order to restrain the legal sense of the term, a clear intention must
appear upon the will. 3 Ves. 257; Id. 421; 1 Meriv. 434; 13 Ves. 344.
18.-2. Where it appears clearly to be a testator's meaning to provide
for a class of individuals living at the date of his will, and he provides
against a lapse by the death of any of them in his lifetime, by the
substitution of their issue; in such case, although the word will include
all the descendants of the designated legatees, yet if any person who would
have answered the description of an original legatee when the will was made,
be then dead, leaving issue, that issue will be excluded, because the issue
of those individuals only who were capable of taking original shares, at the
date of the will, were intended to take by substitution; so that as the
person who was dead when the will was made, could never have taken an
original share, there is nothing for his issue to take in his place. 1
Meriv. 320.
19.-3. When it can be collected from the will that a testator in using
the word issue, did not intend it should be understood in its common
acceptation, the import of it will be confined to the persons whom it was
intended to comprehend. 7 Ires. 531; 3 Ves. 383; 7 Ves. 522; 1 Ves. jr. 143.
20.-5. Of legacies to relations. 1. Under a bequest to relations, none
are entitled but those, who in the case of intestacy, could have claimed
under the statute of distribution. Forrest. 251; 4 Bro. C. C. 207; 1 Bro. C.
C. 31; 3 Bro. C. C. 234; 5 Ves. 529; Ambl. 507; Dick. 380; 1 P. Wms. 327; 2
Ves. sen. 527; 19 Ves. 403; 1 Taunt. 263; 1 T. R. 435; n. See the following
cases where the bequests were to "poor relations;" 1 P. Wms. 327; 8 Serg. &
Rawle, 45; 1 Sch. & Lef. 111; "most necessitous relations;" Ambl. 636.
21.-2. To this general rule there are several exceptions, namely,
first, when the testator has delegated a power to an individual to
distribute the fund among the testator's relations according to his
discretion; in such an instance whether the bequest be made to "relations"
generally, or to "poor," or "poorest," or "most necessitous" relations, the
person may exercise his discretion in distributing the property among the
testator's kindred although they be not within the statute of distributions.
1 Scho. & Lef. 111, and 16 Ves. 43; 1 T. R. 485, n.; Ambl. 708; 16 Ves. 27,
43. Secondly. Another exception occurs where a testator has fixed ascertain
test, by which the number of relatives intended by him to participate in his
property, can be ascertained; as if a legacy be given to such of the
testator's relations as should not be worth a certain sum, in such case, it
seems, all the testator's relatives answering the description would take,
although not within the degrees of the statute of distributions. Ambl. 798.
Thirdly. Another exception to the general rule is, where a testator has
shown an intention in his will, to comprehend relations more remote than
those entitled nuder the statute; in that case his intention will prevail. 1
Bro. C. C. 32, n., and see 1 Cox, 235.
22.-3. The word "relation" or "relations," may be so qualified as to
exclude some of the next of kin from participating in the bequest; and this
will also happen when the terms of the bequest are to my "nearest
relations;" 19 Ves. 400; Coop. 275; 1 Bro. C. C. 293; and see 1 Ves. sen.
337; Ambl. 70; to testator's relations of his name 1 Ves. sen. 336; or
stock, or blood; 15 Ves. 107.
23.-4. The word relations being governed by the statute of
distributions, no person can regularly answer the description but those who
are of kin to the testator by blood, consequently relatives by marriage are
not included in a bequest to relations generally. 1 Ves. sen. 84; 3 Atk.
761; 1 Bro. C. C. 71, 294.
24.-6. Legacies to next of kin. 1. When a bequest is made to
testator's next of kin, it is understood the testator means such as are
related to him by blood. But it is not necessary that the next of kin should
be of the whole blood, the half blood answering the description of next of
kin, are equally entitled with the whole, and if nearer in degree, will
exclude the whole blood. 1 Ventr. 425; Alley. L. D. of Mar. 36; Sty. 74.
25-2. Relations by marriage are in general excluded from
participating in a legacy given to the next of kin. 18 Ves. 53; 14 Ves. 376,
381, 386; and, see 3 Ves. 244; 18 Ves. 49. But this is only a prima facie
construction, which may be repelled by the contrary intention of a testator.
14 Ves. 382.
26.-3. A testator is to be understood to mean by the expression "next
of kin," when he does not refer to the statute, or to a distribution of the
property as if he had died intestate, those persons only who should be
nearest of kin to him, to the exclusion of others who might happen to be
within the degree limited by the statute. 3 Bro. C. C. 69; 19 Ves. 404; 14
Ves. 385. See 3 Bro. C. C. 64.
27.-4. Nearest of kin will alone be entitled under a bequest to the
next of kin in equal degree. 12 Ves. 433; 1 Madd. 36.
28.-7. Legacies to legal personal representatives or to personal
representatives. 1. Where there is nothing on the face of the will to
manifest a different intention, the legal construction of the words
"personal representatives," or "legal personal representatives," is
executors or administrators of the person described. 6 Ves. 402; 6 Mead.
159. A legacy limited to the personal or legal personal representatives of
A, unexplained by anything in the will, will entitle A's executors or
administrators to it, not as representing A, or as part of his estate, or
liable to his debts, but in their own right as personae designated by the
law. 2 Mad. 155.
29.-2. In the following cases the executors or administrators were
held to be entitled under the designation of personal, or legal personal
representatives. 3 Ves. 486; Anstr. 128.
30.-3. The next of kin and not the executors or administrators, were,
in the following cases, held to be entitled under the same designation. 3
Bro. C. C. 224, approved by Lord Rosslyn in 3 Ves. 486; 3 Ves. 146; 19 Ves.
404.
31.-4. The same words were held to mean children, grandchildren, &c.
to the exclusion of those persons who technically answer the description of
"personal representatives." 3 Ves. 383.
32.-5. A husband or wife may take as such, if there is a manifest
intention in the will that they should and if either be clothed with the
character of executor or administrator of the other, the prima facie legal
title attaches to the office, which will prevail, unless an intention to the
contrary be expressed or clearly apparent in the instrument. See 14 Ves.
382; 18 Ves. 49; 3 Ves. 231; 2 Ves. sen. 84; 3 Atk. 758; 1 Rop. on H.& W.,
326; 2 Rop. on H.& W., 64.
33.-8. The construction of bequests when limited to executors and
administrators. 1. Where personal estate is given to B, his executors and
administrators, the law transfers to B the absolute interest in the legacy.
15 Ves. 537; 2 Mad. 155.
34.-2. If no interest were given to B, and the bequest were to his
executors and administrators, it should seem that the individual answering
the description would be beneficially entitled as personal designatee, in
analogy to the devise of real estate to the heir of B, without a previous
limitation to B, whose heir would take by purchase in his own right, and not
by force of the word "heir" considered as a term of limitation. 2 Mad. 155.
See 8 Com. Dig. Devise of Personal Property, xxxvi.
35:-9. Legacies to descendants. 1. A legacy to the descendants of A,
will comprehend all his children, grandchildren, &c.; and if the will direct
the bequest to be divided equally among them, they are entitled to the fund
per capita. Ambl. 97; 3 Bro. C. C. 369.
36.-10. Legacies to a family. 1. The word family, when applied to
personal property, is synonymous with "kindred," or "relations;" see 9 Ves.
323. This being the ordinary acceptation of the word family, it may
nevertheless be confined to particular relations by the context of the will;
or the term may be enlarged by it, so that the expression may, in some
cases, mean children, or next of kin, and in others may even include
relations by marriage. See 8 Ves. 604; Dy. 333; 5 Ves. 166; Hob. 33; Coop.
122; 5 M. & S. 126; 17 Ves. 263; 1 Taunt. 266; 14 Ves. 488; 9 Ves. 319; 3
Meriv. 689.
37.-11. Legacies to servants. 1. To entitle himself to a bequest "to
servants," the relation of master and servant must have arisen out of a
contract by which the claimant must have formed an engagement which entitled
the master to the service of the individual during the whole period, or each
and every part of the time for which he contracted to, serve. 12 Ves. 114; 2
Vern. 546.
38.-2. To claim as a servant, the legatee must in general be in the
actual service of the testator at the time of his death. Still a servant may
be considered by a testator as continuing in his employment, and be intended
to take under the bequest, although he quitted the testator's house previous
to his death, so as to answer the description in the instrument; and to
establish which fact declarations of the testator upon the subject cannot be
rejected; but testimony that the testator meant a servant notwithstanding
his having left the testator's service, to take a legacy bequeathed only to
servants in his employment at his death, cannot be received as in direct
opposition to the will. 16 Ves. 486, 489.
39.-12. The different periods of time at which persons answering the
descriptions of next of kin, family relations, issue, heirs, descendants and
personal representatives, (to whom legacies are given by those terms
generally, and without discrimination,) were required to be in esse, for
the purpose of participating in the legatory fund. 1. When the will
expresses or clearly shows that a testator in bequeathing to the relations,
&c. of a deceased individual, referred to such of them as were in existence
when the will was made, they only will be entitled; as if the bequest was,
"I give 1000 to the descendants of the late A B, now living," those
descendants only in esse at the date of the will can claim the legacy. Ambl.
397.
40.-2. But, in general, a will begins to speak at the death of the
testator, and consequently in ordinary cases, relations, next of kin, issue,
descendants, &c., living at that period will alone divide the property
bequeathed to them by those words. See 1 Ball &. Beat. 459; 1 Bro. C. C.
532; 3 Bro. C. C. 224; 5 Ves. 399; 1 Jac. & Walk, 388, n.; 3 Meriv. 689; 5
Binn. 607; 2 Murph. 178.
41.-3. If a testator express, or his intention otherwise appear from
his will, that a bequest to his relations, &c., living at the death of a
person, or upon the happening of any other event, should take the fund, his
next of kin only in existence at the period described, will be entitled, in
exclusion of the representatives of such of them as happened to be then
dead. 3 Ves. 486; 9 Ves. 325; 1 Atk. 469; 15 Ves. 27; 4 Vin. Abr. 485, pl.
16; 8 Ves. 38; 5 Binn. 606; see 6 Munf. 47.
42.-13. When the fund given to legatees, by the description of
"family," "relations" "next in kin," &c., is to be divided among them either
per capita, or per stirpes, or both per stirpes et capita. 1. Where the
testator gives a legacy to his relations generally, if his next of kin be
related to him in equal degree, as brothers, there being no children of a
deceased brother, the brothers will divide the fund among them in equal
shares, or per capita; each being entitled in his own right to an equal
share. So it would be if all the brothers had died before the testator, one
leaving two children, another three, &c., all the nephews and nieces would
take in equal shares, per capita, in their own rights, and not as
representing their parents; because they are sole next of kin, and related
to the testator in equal degree. Pre. Ch. 54; and see 1 P. Wms. 595; 1 Atk.
454; 3 P. Wms. 50. But if the testator's next of kin happen not to be
related to him in equal degrees, as a brother, and the children of a
deceased brother, so as that under the statute the children would take per
stirpes as representing their parent, namely, the share he would have taken
had he been living; yet if the testator has shown au intention that his next
of kin shall be entitled to his property in equal shares, i. e. per capita,
the distribution by the statute will be superseded. This may happen where
the bequest is to relations, next of kin, &c., to be equally divided among
them; or by expressions of like import. Forrest. 251; and see 1 Bro. C. C.
33; 8 Serg. & Rawle, 43; 11 Serg. & Rawle 103; 1 Murph. 383.
43.-2. Where a bequest is to relations, &c., those persons only who
are next of kin are entitled, and the statute of distributions is adopted,
not only to ascertain the persons who take, but also the proportions and
manner in which the property is to be divided; the will being silent upon
the subject, if the next of kin of the person described be not related to
him in equal degree, those most remote can only claim per stirpes, or in
right of those who would have been entitled under the statute if they had
been living. Hence it appears that taking per stirpes, always supposes an
inequality in relationship. For example, where a testator bequeaths a legacy
to his "relations," or "next of kin," and leaves at his death two children,
and three grandchildren, the children of a deceased child; the grandchildren
would take their parents' share, that is, one-third per stirpes under the
statute, as representing their deceased parent. 1 Cox, 235.
44.-3. Where a testator bequeaths personal estate to several persons
as tenants in common, with a declaration that upon all or any of their
deaths before a particular time, their respective shares shall be equally
divided among the issue or descendants of each of them, and they die before
the arrival of the period, some leaving children, others grandchildren, and
great grandchildren, and other grandchildren and more remote descendants in
such case the issue of each deceased person will take their parents share
per stirpes; and such issue, whether children only, or children and
grandchildren, &c., will divide each parent's share among them equally per
capita. 1 Ves. sen. 196.
45.-14. The effect of a mistake in the names of legatees. 1. Where the
name has been mistaken in a will or deed, it will be corrected from the
instrument, if the intention appear in the description of the legatee or
donee, or in other parts of the will or deed. For example, if a testator
give a bequest to Thomas second son of his brother John, when in fact John
had no son named Thomas, and his second son was called William; it was held
William was entitled. 19 Ves. 381; Coop. 229; and see Ambl. 175; Co. Litt.
3, a; Finch's R. 403; 3 Leon, 18. When a bequest is made to a class of
individuals, nominatim, and the name or christian name of one of them is
omitted, and the name or christian name of another is repeated; if the
context of the will show that the repetition of the name was error, and the
name of the person omitted was intended to have been inserted, the mistake
will be corrected. As where a testator gave his residuary estate to his six
grandchildren, by their christian names. The name of Ann, one of them, was
repeated, and the name of Elizabeth, another of them, was omitted. The
context of the will clearly showed the mistake which had occurred, and
Elizabeth was admitted to an equal share in the bequest. 1 Bro. C. C. 30;
see 2 Cox, 186. And is to cases where parol evidence will be received to
prove the mistakes in the names or additions of legatees, and to ascertain
the proper person, see 3 B. & A. 632 to 642; 6 T. R. 676; 2 P. Wms. 137; 1
Atk. 410: 1 P. Wms. 421; 5 Rep. 68, b; 6 Ves. 42; 7 East, 302; Ambl. 75.
46.-15. The effect of mistakes in the descriptions of legatees, and
the admission of parol evidence in those cases. 1. Where the description of
the legatee is erroneous, the error not having been occasioned by any fraud
practiced upon the testator, and there is no doubt as to the person who was
intended to be described, the mistake will not disappoint the bequest. Hence
if a legacy be given to a person by a correct name, but a wrong description
or addition, the mistaken description will not vitiate the bequest, but be
rejected; for it is a maxim that veritas nominis tollit errorem
demonstrationis. Ld. Bac. Max. reg. 25; and see 2 Ves. jr. 589; Ambl. 75; 4
Ves. 808; Plowd. 344; 19 Ves. 400.
47.-2. Wherever a legacy is given to a person under a particular
description and character which he himself has falsely assumed; or, where a
testator, induced by the false representations of third persons to regard
the legatee in a relationship which claims his bounty, bequeaths him a
legacy according with such supposed relationship, and no motive for such
bounty can be supposed, the law will not, in either case, permit the legatee
to avail himself of the description, and therefore he cannot demand his
legacy. See 4 Ves. 802; 4 Bro. C. C. 20.
48.-3. The same principle which has established the admissibility of
parol evidence to correct errors in naming legatees, authorizes its
allowance to rectify mistakes in the description of them. Ambl. 374; 1 Ves.
jr. 266; 1 Meriv. 184.
49.-4. If neither the will nor extrinsic evidence is sufficient to
dispel the ambiguity arising from the attempt to apply the description of
the legatee to the person intended by the testator, the legacy must fail
from the uncertainty of its object. 7 Ves. 508; 6 T. R. 671.
50.-16. The consequences of imperfect descriptions of, or reference to
legatees, appearing upon the face of wills, and when parol evidence is
admissible. These cases occur, 1. When a blank is left for the Christian
name of the legatee. 2. When the whole name is omitted. 3. When the testator
has merely written the initials of the name; and, 4. When legatees have been
once accurately described, but in a subsequent reference to one of them, to
take an additional bounty, the person intended is doubtful, from ambiguity
in the terms.
51.-1. When a blank is left for the Christian name of the legatee,
evidence is admissible to supply the omission. 4 Ves. 680.
52.-2. When the omission consists of the entire name of the legatee,
parol evidence cannot be admitted to supply the blank. 2 Ch. Ca. 51.; 2 Atk.
239; 3 Bro. C.C. 311.
53.-3. When a legatee is described by the initials of his name only,
parol evidence may be given to prove his identity. 3 Ves. 148. When a patent
ambiguity arises from an imperfect reference to one of two legatees
correctly described in a prior part of the will, parol evidence is admitted
to show which of them was intended, so that the additional legacy intended
for the one will depend upon the removal of the obscurity by a sound
interpretation of the whole will. 3 Atk. 257 and see 2 Ves. 217; 2 Eden,
107.
See further, upon this subject, Lownd on Leg. ch. 4; 1 Roper on Leg.
ch. 2; Com. Dig. Chancery, 3 Y; Bac. Abr. h.. t. Vin. Abr. h.t.; Nels. Abr.
h.t.; Whart. Dig. Wills, G. P.; Hamm. Dig. 756; Grimk. on Ex. ch. 5;
Toll. on Executors, ch. 4.
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RESIDUARY LEGATE
(bouvier) | RESIDUARY LEGATEE. He to whom the residuum of the estate is devised or
bequeathed by will. Roper on Leg. Index, h.t.; Powell Mortg. Index, h.t.;
8 Com. Dig. 444.
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