The rules by which gifts of legacies are construed are derived from the civil law, or rather are a part of that law, which prevailed in the ecclesiastical courts while those courts had jurisdiction over legacies ; for although the Court of Chancery had concurrent jurisdiction with the ecclesiastical courts, yet to prevent confusion it- followed the same general rules. If, however, a legacy be charged upon or made payable out of the real estate, then, as the ecclesiastical court had no con current jurisdiction, courts of equity are not bound to follow the same rules as to the construction of such gifts as in the case of per sonal estate.
The questions involved in the law relating to legacies are so nume rous that it is quite impossible even to notice them in an article of this description ; and as they are chiefly of a technical nature, the reader is referred to the various treatises on that branch of the law.
Generally speaking an executor cannot he 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 realised and the debts paid or provided for ; but as the rule is only for the general 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. It has already been stated in this work [ExEcrToa], that an action at Law does not lie for a legacy, until after the executor has admitted that he has assets in his hands sufficient to make the payment, or in the ease of a specific legacy, has assented to it. But the law may perhaps be more correctly stated thus : Where a specific legacy consists of some determinate chattel, whether real, as a lease for years, or personal, as a particular horse, the legatee, after assent by the executor to the legacy, may take possession of it, or sue for it by action at law ; but where the specific legacy consists of money, &e., and in all cases of general and of demonstrative legacies, no action at law lies unless the executor has, for some new consideration beneficial to himself, expressly promised payment. As a general rule, therefore, it may be stated that the remedies by legatees against executors are afforded by the courts of equity. (Roper On Legacies ; Williams On Executors.) On the subject of legacies (legato) under the Roman law, Gains (ii., 192-255) and the Digest, lib. xxx., xxxi., xxxii., De Legatis et Fidei commissis; are the authorities. This is one of the subjects on which the Roman jurisconsults have most successfully exercised their saga city and diligence.