CHAPTER X.

LEGACIES.

590. ANOTHER head of concurrent jurisdiction in equity is in regard to LEGACIES. This subject has been in part incidentally treated before, but it is proper to bring the subject more fully under review. It seems that originally the jurisdiction over personal legacies was claimed and exercised in the Temporal Courts of Common Law, or at least that it was a jurisdiction mixti fori, claimed and exercised in the County Court where the bishop and sheriff sat together. Afterwards (at least from the reign of Henry the Third) the Spiritual or Ecclesiastical Courts obtained exclusive jurisdiction over the probate of wills of personal property; and as incident thereto they acquired jurisdiction (though not exclusive) over legacies.2 This latter jurisdiction still continues in the Ecclesiastical Courts, though it is at present rarely exercised; a more efficient and complete jurisdiction being, as we shall presently see, exercised by Courts of Equity.3

591. In regard to legacies, whether pecuniary or specific, it is very clear that no suit will lie at the common law to recover them, unless the executor has assented thereto.4 (a) If no such

1 Swinb. on Wills, Pt. 6, § 11, pp. 430, 431, 432; 2 Fonbl. Eq. B. 4, Pt. 1, ch. 1, § 1, and notes (a) and (b); 2 Black. Comm. 491, 492; 3 Black. Comm. 61, 95, 96; Marriott v. Marriott, 1 Str. R. 667, 669, 670; 2 Roper on Legacies, by White, ch. 25, p. 685; 1 Reeves, Hist. of the Law, 92, 308.

2 Ibid.; 3 Black. Comm. 98; Com. Dig. Prohibition, G. 17; Bac. Abridg. Legacies, M.; Atkins v. Hill, Cowp. 287.

Bac. Abridg. Legacies, M.; 2 Roper on Legacies, by White, ch. 25, § 2, p. 693; 5 Madd. R. 357.

Deeks v. Strutt, 5 T. Rep. 690.

(a) Nor will an action lie in a Common-Law Court to recover a distributive share in an estate after decree of the Probate Court, unless it be

upon the bond of the administrator or executor. Howard v. Brown, 11 Vt. 361.

assent has been given, the remedy is exclusively in the Ecclesiastical Courts or in the Courts of Equity. But in cases of specific legacies of goods and chattels after the executor has assented thereto the property vests immediately in the legatee, who may maintain an action at law for the recovery thereof. The same rule has been attempted to be applied at law to cases of pecuniary legacies where the executor had expressly assented thereto; for it is agreed on all sides that the mere possession of assets without such assent will not support an action.2 There are certainly decisions which establish that in the case of an express promise to pay a pecuniary legacy in consideration of assets, an action will lie at law for the recovery thereof.3 But these cases seem not to have been decided upon satisfactory principles; and though they have not been directly overturned in England, they have been doubted and disapproved by judges as well as by elementary writers.4

592. The ground upon which these decisions have been doubted or denied is the pernicious consequences which would follow from allowing such an action at law; for Courts of Law, if compellable to entertain the jurisdiction, cannot impose any terms upon the parties. Thus for instance a suit might be maintained by a husband for a legacy given to his wife, without making any provision for her or for her family; whereas a Court of Equity would require such a provision to be made.5

593. But whether a pecuniary legacy is recoverable at law or not after an assent thereto by an executor, it is very certain that Courts of Equity now exercise a concurrent jurisdiction with all

1 Doe v. Gay, 3 East, R. 120; Paramore v. Yardley, Plowd. 539; Young v. Holmes, 1 Str. 70; 4 Co. Rep. 28 b.

2 Deeks v. Strutt, 5 T. R. 690; Doe v. Gay, 3 East, R. 120.

8 Atkins v. Hill, Cowp. R. 284; Hawkes v. Saunders, Cowp. R. 289.

4 See Deeks v. Strutt, 5 T. R. 690; Doe v. Gay, 3 East, R. 120; 2 Roper on Legacies, by White, ch. 25, § 2, pp. 696, 697; Bac. Abridg. Legacies, M., Gwillim's note. See also 3 Dyer, Rep. 264 b; Beecker v. Beecker, 7 John. R. 99; Farish v. Wilson, Peake, Rep. 73; Mayor of Southampton v. Greaves, 8 T. Rep. 583; 2 Madd. Ch. Pr. 1, 2, 3.

5 Deeks v. Strutt, 5 T. R. 692. An action at law for a pecuniary legacy has been maintained against an executor after his assent to the legacy, in some of the courts of America. In some of the States an action at law is expressly given by statute. See Dewitt v. Schoonmaker, 2 John. R. 243; Beecker v. Beecker, 7 John. R. 99; Farwell v. Jacobs, 4 Mass. R. 634; Bigelow's Digest, Legacy, C.

other courts in cases of legacies, whether the executor has assented thereto or not.1 (a) The grounds of this jurisdiction are various. In the first place the executor is treated as a trustee for the benefit of the legatees; and therefore as a matter of trust legacies are within the cognizance of Courts of Equity, whether the executor has assented thereto or not. This seems a universal ground for the jurisdiction.2 In the next place the jurisdiction is maintainable in all cases where an account or discovery or distribution of the assets is sought upon general principles. Indeed Lord Mansfield seems to have thought that the jurisdiction arose as an incident to discovery and account. In the next place there is in many cases the want of any adequate or complete remedy in any other court.4

594. Obvious as some of these grounds are to found a general jurisdiction in equity in cases of legacies, it does not appear that the jurisdiction was familiarly exercised until a comparatively recent period. Lord Kenyon indeed has said the jurisdiction over questions of legacies was not exercised in equity until the time of Lord Chancellor Nottingham.5 In this remark Lord Kenyon was probably under some slight mistake; for traces are found of an exercise of the jurisdiction as early as the time of Lord Chancellor Ellesmere, in cases where the defendant answered the bill and took no exceptions; although he appears to have entertained the opinion that the Ecclesiastical Courts were more proper to give relief in cases of legacies. But it is highly probable that the jurisdiction was not firmly established beyond controversy until Lord Nottingham's time.

595. Indeed in many cases Courts of Equity exercise an exclusive jurisdiction in regard to legacies; as for instance where the bequest of the legacy involves the execution of trusts either express or implied; or where the trusts, engrafted on the bequest,

Franco v. Alvares, 3 Atk. 346.

2 2 Roper on Legacies, by White, ch. 25, p. 685; Jeremy on Eq. Jurisd. B. 1, ch. 1, § 2, p. 104; Farrington v. Knightly, 1 P. Will. 549, 554; Wind v. Jekyl, 1 P. Will. 575; Hurst v. Beach, 5 Madd. R. 360; 2 Madd. Ch. Pract. 1, 2.

* Atkins v. Hill, Cowper, R. 287; 2 Madd. Ch. Pract. 1, 2.

4 2 Madd. Ch. Pr. 1, 2, 3; Franco v. Alvares, 3 Atk. 346.

5 Deeks v. Strutt, 5 T. Rep. 692.

62 Madd. Ch. Pr. 1, 2.

(a) James v. Faulk, 54 Ala. 184.

are themselves to be pointed out by the court; for (as we have seen) the Spiritual Courts cannot, any more than the Temporal Common Law Courts, enforce the execution of trusts.1 (a)

596. It is upon this account that where a testator by his will has not disposed of the surplus of his personal estate, the Spiritual Courts have no authority to decree distribution of it; for in such a case the executor is at law entitled to it; although under circumstances he may in equity be held to be a trustee for the next of kin. And therefore it is that if the Spiritual Courts attempt to enforce the payment of a legacy which involves a trust, a Court of Equity will award an injunction in order to protect its own exclusive jurisdiction.3

597. So where the jurisdiction in the Spiritual Courts cannot

12 Roper on Legacies, by White, ch. 25, § 2, p. 693; Farrington v. Knightly, 1 P. Will. 549; Anon. 1 Atk. R. 491; Hill v. Turner, 1 Atk. 516; Attorney-Gen. v. Pyle, 1 Atk. 435.

22 Madd. Ch. Pr. 1, 2, 3; Farrington v. Knightly, 1 P. Will. 549, 550, 553, 554, and Mr. Cox's note (1); Id. 550; Petit v. Smith, 1 P. Will. 7; Hatton v. Hatton, 2 Str. R. 865; ante, §§ 536, 537. At law the appointment of an executor is deemed to be a virtual gift to him of all the surplus of the personal estate after the payment of all debts and legacies. But in equity he is considered as a mere trustee of such surplus, for the benefit of the next of kin, if from the nature and circumstances of the will a presumption arises that the testator did not intend that the executor should take such surplus to his own use. The effect of the doctrine therefore is that the legal right of the executor will prevail unless there are circumstances which repel that conclusion. Wilson v. Ivat, 2 Ves. 165; Bennett v. Batchelor, 1 Ves. jr. 67; Dawson v. Clarke, 18 Ves. 254; Haynes v. Littlefear, 1 Sim. & Stu. 496. What circumstances will be sufficient to turn the legal estate of the executor into a trust is a matter which would require a very large discussion in order to bring before the reader all the appropriate learning. It is in truth rather a matter of presumptive evidence than of equity jurisdiction. The subject is amply treated in Jeremy on Equity Jurisd. B. 1, ch. 1, § 2, pp. 122 to 135; and in 2 Roper on Legacies, by White, ch. 24, p. 579; Id. 590 to 640. It may however be generally stated that where there arises upon the face of the will a presumption that the executor is not to take the surplus for his own use, there parol evidence may be admitted on his part to repel the presumption, or on the part of the next of kin to confirm it. But if no such presumption arises on the face of the will, parol evidence is not admissible on the part of the next of kin to show that the executor was not intended to take beneficially. Ibid.; 1 Roper on Legacies, by White, ch. 6, § 2, pp. 337, 338; White v. Williams, 3 Ves. & B. 72, 73; Langham v. Sandford, 2 Meriv. R. 17, 18; Hurst v. Beach, 5 Madd. R. 360.

82 Roper on Legacies, by White, ch. 25, § 2, p. 693; Anon. 1 Atk. 591.

(a) When assumpsit will lie, and when a bill in equity, see Prescott v. More, 62 Maine, 447.

be exercised in a manner adequate to protect the just rights of all the parties concerned in the case of a legacy, Courts of Equity will assume an exclusive jurisdiction, and grant an injunction to stay proceedings of the Spiritual Courts for such legacy. It was upon this account that injunctions were formerly granted by Courts of Equity to proceedings in the Spiritual Courts for a legacy, where there was no offer or requirement of security to refund it (which such courts might insist on or not) in case of a deficiency of assets. For it was said that there is a difference between a suit for a legacy in a Court of Equity, and a suit for a legacy in the Spiritual Courts. If in the Spiritual Courts they would compel an executor to pay a legacy without security to refund, there a prohibition should go. But in a Court of Equity, though there be no provision made for refunding (which was formerly a usual provision, but is now discontinued), yet the common justice of the court would compel a legatee to refund.2

598. But there are other instances, illustrative of the same principle of exclusive jurisdiction, of a more general character, and dependent upon the state of the legatee. Thus if a legacy is given to a married woman, and her husband sues therefor in the Spiritual Court, a Court of Equity will grant an injunction; for the Spiritual Court has no authority (as we have seen) to require him to make a suitable settlement on her and her family, as a Court of Equity has; and therefore to allow the suit in the Spiritual Court to proceed would enable the husband to do injustice to her rights, and to defeat her equity to a settlement.3

599. In general it is true that in cases of concurrent jurisdiction (as of legacies) that court which is first in possession of the

1 Nicholas v. Nicholas, Prec. Ch. 546, 547; 2 Fonbl. Eq. B. 4, Pt. 1, ch. 1, § 2; Horrell v. Waldron, 1 Vern. 26, 27; Mr. Cox's note B. to Slanning v. Style, 3 P. Will. 337.

2 Noel v. Robinson, 1 Vern. 93, 94; Anon. 1 Atk. 491; Hawkins v. Day, Ambler, R. 161, 162; 2 Fonbl. Eq. B. 4, Pt. 1, ch. 1, § 2, note (d). In Anon. 1 Atk. 491, Lord Hardwicke said that the rule of the court was varied since the case in 1 Vern. 93; for legatees are not obliged to give security to refund upon a deficiency of assets. See ante, §§ 537, 538. In Hawkins v. Day, Ambler, R. 162, Lord Hardwicke said: The rule of this court to grant prohibitions in case legatees sue in the Spiritual Court and refuse to give security is out of use now. But this court will decree a legatee to refund.'

Meals v. Meals, 1 Dick. R. 373; Anon. 1 Atk. 491; Hill v. Turner, 1 Atk. R. 516; Jewson v. Moulson, 2 Atk. 419, 420; Prec. Ch. 548; 2 Fonbl. Eq. B. 4, Pt. 1, ch. 1, § 2, note (d); 2 Madd. Ch. Pr. 2; ante, §§ 539, 592.