Legacies may be given either abso lutely (pure, as the Roman jurists termed it), or upon condition (sub conditioue) or upon the happening of any contingency : provided it must happen, if at all, within the duration of a life or lives in being at the time of the decease of the testator and twenty-one years afterwards, allowing in addition the period of gestation where the contingency depends upon the birth of a child. Legacies may also be given in such a way that though no condition is expressed in distinct terms, it may be clearly inferred that the testator did not intend his gift to take effect till a definite time had arrived or a definite event had taken place. When a legatee has ob tained such an interest in the legacy as to be fully entitled to the property in it. the legacy is said to be vested, and this property may be acquired long before the right to the possession of the legacy accrues. A vested legacy partakes of the incidents of property so far as to be trans missible to the personal representatives of the party entitled to it, or to pass by his will ; a legacy which is contingent or not vested is no property at all with re spect to the legatee. This distinction of legacies, vested and not vested, seems derived from the Roman law, which ex presses the fact of vesting by the words " dies legati cedit." Formerly, in all cases when a legatee died before the testator, the legacy lapsed or failed, and went to the person ap pointed residuary legatee by the testator, or if there was none such, to the next of kin ; and lapse might also take place (as already observed with respect to a legacy given to a legatee at a particular time, or upon condition, or the happening of a contingency) if the legatee died before the appointed time arrived, or if the condition was not performed, or the contingency did not happen. The statute 1 Viet. c. 26, § 33, has modified the old rule, and directs that when legacies are be queathed to a child or other issue of a testator, who shall die in his life-time, leaving issue, and such issue shall be living at the testator's death, the legacies shall not lapse unless a contrary intention appears upon the face of the will, but shall take effect as if the legatee had died immediately after the testator.
The rules by which gifts of legacies are construed are derived from the Roman law, or rather are a part of that law, which prevails in the ecclesiastical courts : for although the court of chancery has con current jurisdiction over legacies with the ecclesiastical courts, yet to prevent con fusion it follows the same general rules. If however a legacy be charged upon or made payable out of real estate, then, as the ecclesiastical court has no concurrent jurisdiction, courts of equity are not bound to follow the same rules as to the con struction of such gifts as in the case of personal estate.
The questions involved in the law re lating to legacies are very numerous, and belong to treatises on that branch of the law.
Generally speaking, an executor can not be compelled to pay legacies until after the expiration of twelve months from the decease of the testator, and not even then unless the assets should be realized and the debts paid or provided for; but as the rule is only for the gene ral convenience of executors, if it should appear that all the debts of the testator are paid, the executor may be compelled to pay the legacy before the twelve months have expired. It may be stated however as a general rule, that legacies are payable twelve months after the death of a testator, and with interest from that time at 4 per cent., unless the testator has made some special provision as to time of payment and interest. The rule as to the twelve months is taken from the Roman law. When a specific legacy consists of some determinate chat tel, whether real, as a lease for years, or personal, as a particular horse, the lega tee, after assent by the executor to the legacy, may take possession of it, or sue fbr it by action at law ; but where the specific legacy consists of money, &c., and in all cases of general and of demonstra tive legacies, no action at law lies unless the executor has, for some new consi deration beneficial to himself, expressly oromised payment. As a general rule therefore it may be stated that the reme dies by legatees against executors are afforded by the courts of equity. (Roper On Legacies ; Williams Us Executors and Administrators.) On the subject of legacies (legate) under the Roman law, Giaius (ii. 192 t55) and the Digest, lib. xxx., xxxi., xxxii., • De Legatis et Fidei commissis,' are the chief authorities. This is one of the subjects on which the Roman juris consults have most successfully exercised their sagacity and diligence, and in which the decisions of our English courts have adopted many of the principles of Roman law.
Legacies pay a tax, which is gene rally to be paid by the executor or administrator, and the stamp which de notes the payment of a legacy is to be affixed to a receipt which is given to the executor or administrator by the person who receives the legacy. There are also stamp duties on probates of wills and on letters of administration. These modes of taxing the transfer of personal property by will or in consequence of intestacy may be conveniently explained under PROBATE.