where the
heirs are poor.
T h e legatee
becomes proprietor
o f the
legacy by his_
acceptance
o f it;
becaufe this, manifefts benevolence to the heirs, who have a fuperior
claim to it from the relation in which they ftand, Gop having declared,
in the K o r a n , “ T h e e x e r t i o n s or g e n e r o s i t y - t o w a r d s r e -
“ L A T IO N S IS MORE LA U D A B L E TH AN TOWARDS. STRANGERS.” — ,
Befides, -in this an obfervance o£ two claims -is maintained, namely,
that of poverty and confanguinity. If, on the contrary, the heirs be
rich, or the particular portions aiiigned to them be fuch as to enrich
them, it is mod: advifable to leave fomething fhort of a third of the
eftate in legacies, as a legacy.to.a ftrangpr is. an adt.of charity, whereas
the.beftowal of the whole upon the heirs, is,a g i f t ; and the former
is more laudable than,the latter, being ,calculated to gain the favour
and good will of G od., ; Some, have, laid, that in fuch cafe the proprietor
is under no reftraint, but is, perfectly at liberty .to m ake,a, will in
favour of Grangers, or to fuller the whole to pafs, to the heirs, as-each
has its particular merit, the ftrft being an adt of generoflty, audi.the
fecond an obedience to.the dictates. of natural affe,diipn5
T he property of a legatee; in a legacy is eftablifhed by his acceptance
of it. ‘Z 'jfer is of opinion that a legacy is like an inheritance; becaufe
the legatee acquired the property by tranfitio.n.from, and fuccef-
fion to, the teflator, in the fame manner, as an heir acquires it by fuc-
ceflion to and defcent from the laft pofleflbr; and therefore his acceptance
is not neceflarytowards.theeftablifhment.of the property, in the
fame manner as holds in the cafe of. inheritance.— Our doctors, on the
contrary, argue that, a legacy eftablifhes the property in the legatee
novo, and does not.veft by fucceflion and defcent .as fti. the cafe of inheritance
;— (whence it is that a legatee cannot rejedt the legacy on account
of any defedt; in other words, if a perfon, having purchafed a
jlave, for example, fhould bequeath him to another, and the legatee,
after the death of th'e teflator, difcover the Have to have fome fault,or
defedt, it would not, on this account, be in his power to return him
to the .feller, as an. heir, in a fimilar cafe, would be entitled to do;—•
and likewife, that nothing can be.returned to a legatee on account of
8 a defedt;
a defedt; in other words, if a perfon fhould bequeath his whole
eftate by will, and afterwards fell fomething belonging to it, and
the buyer difcover a defedt in the fame, ftill he would not have the
power of returning it to the legatee, whereas he might to an heir;)
— and fuch being the cafe, it refts, therefore, entirely on his acceptance,
as no perfon can be made proprietor o f any thing againft his will.
Inheritance, on the contrary, is a fucceflion ; (whence it is that the
rules above mentioned have effedt in i t ;) and an heir is, therefore, as it
were, forcibly put in poflèftihmof his inheritance* by’ the efpecial ordinance
of the l a w , the validity of it not bëirtg'fufpënded on his acceptance
or eonfent. It is to be obferved that acceptances in cafes of
bequeft, is o f two kinds.— I. Exprefs, which needs1 not to be explained.—
II. Implied, which is where the legatee dies1 without having
either .declared his acceptance or refrtfal;-' for this alfcPis art acceptance
hi effedt; becaufe the bequeft is rendered complete on the part o f the
teflator by his death, (in other words,' it cannot bfe refeinded after
that event;) and as it was fufpended iri its'effedt purely in deference
to his right of rejedtion, it of courfe:falls’ into his property upon his
demife ;—in the fame manner as holds 'in a cafe of falè with a reforve
of option to the purchafer ; in which inftance, if the purchafer die
without formally fignifyirig his affent to the'fale, it is then regarded
as complete, and the article fold is cönfideredas part of his eftate.
If a perfon deeply involved in debt' bequeath any legacies, fuch
bequeft is unlawful and of no effedt ; becaufe debts have a preference
to bequefts, as the difeharge of debts is art abfolute duty, whereas be-
quefts are gratuitous and voluntary; and that which is mod indifpen-
fable muft be 'firft coiifidered. If, however, the creditors of the de-
ceafed relinquifh their claims, the bequeft is then valid, the obftacle
to it being removed, and the legatee being fuppofed to ftand in need
of his legacy.
which may
be either exprefs
or implied.
Bequeft by an
infolvent perfon
is void;
P p p 2 B e q u e s t