No. IX. 2. WHEREAS the said (testator), by his last will, dated on or in the year , amongst other Form of Assent about the day of by an Executor devises and bequests, bequeathed unto (legatee) ALL that leasehold to the Bequest of a Leasehold estate called D, situate, lying, and being in the parish of Estate. Recital of will B, C in the county of C―, which the said (testator) then beld bequeathing the of the dean and chapter of E-, for all the unexpired residue of years, and for all other the estate, interest, property to legatee. a certain term of Assent of one of several executors sufficient. When an actual assignment will be preferable to simple assent under hand only. the land to B., it has been doubted whether the executor's assent that A. shall have the rent is an assent that B. shall have the land: (3 Bulstr. 122; Bridg. 55; Plow. 251, b.) It is, however, said to be now settled, that in this case also an assent to the bequest to the one shall enure to the benefit of the other, on the ground that, as the assent of the executor is required as well for the benefit of creditors as his own, an inference arises from his assent to one of the legatees of the specific property, that he had no occasion for the term or rent to pay his testator's debts, for if he had, then his assent to either of the legatees would be improper, as both ought to abate pro rata: (1 Rop. Leg. 738, 3rd. edit.; 2 Wms. Exors. 986; 1 Hughes Pract. Sales, 556, 2nd edit.) The assent of one of the executors, where there are several, is sufficient (2 Wms. Exors. 987): it may be given even before probate of the will, and, generally speaking, if once given, it cannot afterwards be retracted (Godb. pl. 2, c. 20, s. 1; Went. Off. Exors. 82, 14th edit.); still, it seeins that if the assent had not been completed by possession, and its recall is unattended with injury to third persons; as, for example, a bona fide purchase from the legatee on the faith of such assent, it seems only reasonable that the executor should, under particular circumstances, have the power of retracting it; as, where he has assented, upon a reasonable ground, that the assets were sufficient to answer all demands, but unknown debts are unexpectedly claimed, which occasions a deficiency (1 Rop. Leg. 743, 3rd edit.; 2 Wms. Exors. 988.) But in no case would such retraction be allowed as against a bona fide purchaser for valuable consideration, It is always advisable, however, to have a written assent from the executor, declaring in express terms that he consents to the bequest. This is sometimes done by indenture, and the property is actually assigned by the executor to the legatee; but this is wholly superfluous, as an assent by mere writing under hand, and unstamped, as in the above form, will be equally efficacious as a deed or indenture under hand and seal, with a proper deed stamp attached to it. It seems, however, even if the assent be made under hand and seal, that a stamp will not be required unless it be delivered also; but this can never be safely relied upon in practice. But although, generally speaking, a mere writing under hand will be as effectual as an actual assignment for the purpose of declaring an executor's assent to a bequest, still, under particular circumstances, it will be for the benefit of the executor to make an actual assignment, in which should also be contained a covenant from the legatee to indemnify the executors from the rents and covenants of the lease, in every case where the testator was the original lessee, or has entered into an express covenant for the payment of the rents and performance of the covenants, for to these the executors will still remain liable to the extent of the assets in their hands, notwithstanding their assent to the bequest, and an actual assignment of the property to the legatee. For this purpose the above form will be found well adapted. 3. AND WHEREAS the said (testator) died on or about No. IX. the day of last, without having altered or revoked said will, which was duly proved by the said (executor) in Prerogative Court of the Archbishop of Canterbury, on the day of following. his Form of Assent the by an Executor to the Bequest of a Leasehold Estate. Of death of testator and will. 4. AND WHEREAS the said (executor) having fully satisfied all probate of his the just debts, funeral and testamentary expenses, of the said That executor (testator), is willing to assent to the bequest of the said leasehold has paid all premises so made to the said (legatee) as aforesaid. testator's debts, funeral and testamentary expenses. 5. Now THEREFORE KNOW YE, that I the said (executor) DO, Testatum. by these presents, declare my assent to the said bequest of the said leasehold estate and premises so made by the said (testator) to the said (legatee) as aforesaid. IN WITNESS whereof I have hereunto set my hand, this , A.D., 18. day of No. X. ASSENT TO A BEQUEST, AND ASSIGNMENT OF LEASEHOLD 1. Parties. 2. Testatum, by which the executor 3. Habendum. 4. Covenant from the executor that he Parties. Testatum, by which the executor assents day of 1. THIS INDENTURE, made the A.D. BETWEEN (executor), of, &c., executor of the last will of (testator), late of, &c., deceased, of the one part, and (legatee), of, &c., of the other part. [INSERT recital of will bequeathing the property; the death of testator; probate of his will; and that executor has discharged all testator's debts, funeral and testamentary expenses, as in last precedent, clauses 2, 3, 4, pp. 400, 401.] 2. Now THIS INDENTURE WITNESSETH, that in consideration of the sum of 5s. sterling, this day paid by the said (legatee) to the to the bequest, said (executor), the receipt of which is hereby acknowledged, HE, property to the the said (executor), DOTII hereby assent to the said bequest, and and assigns the legatee. doth also by these presents assign, ratify and confirm unto the said (legatee), ALL THAT the said hereinbefore mentioned leasehold estate called Din the said county of C, so devised and bequeathed to the said (legatee) by the said hereinbefore recited will of the said (testator) deceased as aforesaid (all which said premises were, by indenture of lease dated on or about the day of , demised by the Dean and Chapter of E to the said (testator), from thenceforth for an absolute term of No. X. Assent Assignment of Leasehold Property, by Indenture, by an years, subject to the rents and covenants therein reserved and to a Bequest and contained); AND all the estate, right, title, interest, benefit, and right of renewal, property, claim and demand whatsoever, both legal and equitable, of him the said (executor) therein. Executor to a Legatee. 3. TO HAVE AND TO HOLD the said leasehold tenements, estate, Habendum. and all and singular other the premises hereinbefore described, and hereby assigned, with the appurtenances, unto the said (legatee), his executors, administrators and assigns, henceforth for all the unexpired residue of the said term of years, now therein to come and unexpired, and for all other the estate, term and interest of him the said (executor) therein, SUBJECT NEVERTHELESS to the payment of the rents, and to the observance and performance of the covenants, conditions and agreements, in the said hereinbefore mentioned indenture of lease reserved and contained, on the tenant or lessee's part to be observed and performed. the executor done no act to 4. AND the said (executor) doth hereby for himself, his Covenant from executors and administrators, covenant with the said (legatee), his that he has executors, administrators and assigns, that he the said (executor), incumber. hath not, nor with his privity hath the said (testator) deceased, done or permitted any act whereby the said leasehold tenement, estate and premises hereby assigned, or any part thereof, can be impeached, forfeited or incumbered. the lease. 5. AND the said (legatee) doth hereby for himself, his heirs, Covenant by legatee to executors and administrators, covenant with the said (executor), indemnify exehis executors, administrators or assigns, that he the said (legatee), the rents and cutor against his heirs, executors and administrators, shall and will, from time covenants of to time and at all times hereafter, well and sufficiently defend, protect, save harmless and keep indemnified the said (executor), his heirs, executors, administrators and assigns, and his and their lands and tenements, goods and chattels, and also the estate and effects of the said (testator) deceased, of, from and against all losses, costs, damages and expenses, which he or they may incur, sustain, pay, or be put unto, for or on account of the nonpayment No. X. Assent to a Bequest and of the rent, or non-observance or non-performance of the covenants, conditions and agreements in the said hereinbefore recited indenture of lease reserved and contained, on the tenant or lessee's part Assignment of Leasehold to be paid, observed or performed, or any or either of them, or Indenture, by an in relation thereto. Property, by Executor to a Legatce. IN WITNESS, &c. |