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The Incidence of General Pecuniary Legacies
Published online by Cambridge University Press: 16 January 2009
Extract
Before the coming into force of the 1925 legislation it was possible to state with reasonable certainty the rules for determining which of the assets comprised in a testator's estate could be used for paying general pecuniary legacies and in what order such assets ought to be applied for that purpose. The pecuniary legatee was, in the absence of any indication in the will of a contrary intention, entitled to have his legacy satisfied out of one portion only of the testator's assets, his general personal estate, that is to say, his personalty not specifically bequeathed. It was immaterial whether such personalty was the subject of an effective residuary gift, or was not effectively disposed of by the will: and if the testator had given his residuary personalty in shares and the gift of any share failed, by reason of lapse or otherwise, so that there was an intestacy as to that share, the legacies were still payable out of the whole of the residuary personalty before division, so that the share which was not effectively disposed of bore the burden pari passu with the other share or shares, the gift of which did not fail.
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- Copyright © Cambridge Law Journal and Contributors 1956
References
1 (1859) 7 H.L.C. 689.
2 See Greville v. Brown, supra, at p. 697; Elliott v. Dearsley (1880) 16 Ch.D. 322 at p. 327.
3 (1830) 1 R. & My. 752.
4 See Re Martin [1955] Ch. 698 at p. 705, and Re Midgley [1955] Ch. 576 at p. 583.
5 [1955] Ch. 576.
6 As altered by s. 33 (2) of the Administration of Estates Act, 1925, where applicable: as to which see below.
7 12th ed., p. 1110; 13th ed., p. 981.
8 Re McKee [1931] 2 Ch. 145 (intestacy as to reversionary interest in proceeds of sale).
9 [1929] 1 Ch. 722.
10 [1930] 1 Ch. 268.
11 [1931] 1 Ch. 202.
12 [1933] Ch. 771.
13 See the discussion in Williams on Executors, 13th ed., pp. 980–981.
14 [1933] Ch. 771.
15 13th ed., p. 981.
16 Re Sauger [1939] Ch. 238, in which Re Worthington was followed, throws no further light on the problem.
17 [1936] Ch. 676.
18 (1859) 7 H.L.C. 689.
19 Not italicised in the original.
20 [1895] 1 Ch. 499.
1 [1933] Ch. 771.
2 [1941] Ch. 343.
3 [1936] Ch. 676.
4 This conclusion seems open to question.
5 [1943] Ch. 161.
6 See Re Spencer Cooper [1908] 1 Ch. 130.
7 [1936] Ch. 676.
8 [1950] Ch. 102.
9 [1950] Ch. 462.
10 [1936] Ch. 676.
11 [1950] Ch. 462.
12 [1955] Ch. 698.
13 [1936] Ch. 676.
14 [1950] Ch. 462.
15 [1955] Ch. 698.
16 [1931] 1 Ch. 202.
17 [1933] Ch. 771.
18 [1950] Ch. 462.
19 [1955] Ch. 698.
20 Re Richerson [1892] 1 Ch. 379.
1 [1955] Ch. 698.
2 Smith v. Claxton (1819) 4 Madd. 484.
3 [1950] Ch. 462.
4 [1955] Ch. 576.
5 p. 583.
6 [1950] Ch. 462.
7 [1955] Ch. 698.
8 [1950] Ch. 102.
9 The cases all relate to shares of residue, but on principle the same rule should apply to shares of property specifically bequeathed or devised.
10 See authorities quoted above and Re Midgley [1955] Ch. 576 at p. 583, per Harman J.