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cause is entitled to go on with it, and no other court ought to intermeddle with it. But this rule is applicable only to cases where the same remedial justice can be administered in each court, and the same protection furnished by each to the rights of the parties.1 (a) In cases of married women it is obvious, from what has been above stated, that the same remedial justice cannot be administered in each court, and therefore Courts of Equity will insist upon making it exclusive.

600. In like manner in the case of infants to whom legacies are given Courts of Equity will interfere, and exercise an exclusive jurisdiction, and prevent proceedings in the Spiritual Court by an injunction; for Courts of Equity can give proper directions for securing and improving the fund, which the Spiritual Court cannot do. And indeed it would be proper for the executor to resort to a Court of Equity in order to procure suitable indemnity for the payment of the legacy, and security to refund in case of a deficiency of assets.2

601. In cases where a discovery of assets is required, or the due administration and settlement of the estate is indispensable to the rights of the legatees, as in the case of residuary legatees, it follows of course that Courts of Equity should entertain the exclusive jurisdiction, since they alone are competent to such an investigation. But this subject has been already sufficiently examined under the preceding head of the jurisdiction of Courts of Equity in cases of administrations.3

602. In regard to legacies charged on land Courts of Equity, for the reasons already stated, also exercise an exclusive jurisdiction; for the Spiritual Courts have no cognizance of legacies chargeable on lands but only of purely personal legacies.1 (b) In deciding upon the validity and interpretation of purely personal legacies Courts of Equity implicitly follow the rules of the civil law as recognized and acted on in the Spiritual Courts.5 But

1 Nicholas v. Nicholas, Prec. Ch. 546, 547.

2 Horrell v. Waldron, 1 Vern. R. 26; Nicholas v. Nicholas, Prec. Ch. 546, 547; 2 Roper on Legacies, by White, ch. 25, § 2, p. 694; ante, §§ 539, 597. 3 Ante, § 534.

4 Reynish v. Martin, 3 Atk. 333.

5 Ibid; Franco v. Alvares, 3 Atk. R. 346; Hurst v. Beach, 5 Madd. R.

(a) Sweeny v. Williams, 36 N. J. Eq. 627; Hause v. Hause, 57 Ala. 262.

(b) See Sherman v. Sherman, 4 Allen, 392.

in legacies chargeable on land they follow the rules of the common law as to the validity and interpretation thereof.1

603. But the beneficial operation of the jurisdiction of Courts of Equity in cases of legacies is even more apparent in some other cases, where the remedies are peculiar to such courts, and are protective of the rights and interests of legatees. Thus for instance in cases of pecuniary legacies due and payable at a future day (whether contingent or otherwise),2 Courts of Equity will compel the executor to give security for the due payment thereof; (a) or what is the modern and perhaps generally the more approved practice, will order the fund to be paid into court, even if there be not any actual waste, or danger of waste, of the estate.1

360; 2 Fonbl. Eq. B. 4, Pt. 1, ch. 1, § 4, and note (h). But see Cray v. Willis, 2 P. Will. 530.

1 Reynish v. Martin, 3 Atk. 333, 334; Paschall v. Keterich, Dyer, 151 b, (5). But see Dyer, 264 b.

2 Formerly a distinction was taken between cases of contingent and cases of absolute legacies, payable in futuro; the latter were entitled to be made secure in equity, the former were not. See Palmer v. Mason, 1 Atk. R. 505; Heath v. Perry, 3 Atk. 101, 105. But that distinction is now overruled. See Mr. Saunders's note to Heath v. Perry, 3 Atk. 105, note (1); Mr. Blunt's note to Ferrand v. Prentice, Ambler, R. 273, note (1); Johnson v. De la Creuze, cited 1 Bro. Ch. R. 105; Green v. Pigott, 1 Bro. Ch. R. 103, 105; Flight v. Cook, 2 Ves. 619; Gawler v. Standerwick, 2 Cox, R. 15, 18; Carey v. Askew, 2 Bro. Ch. R. 55; Jeremy on Eq. Jurisd. B. 3, ch. 2, § 2, pp. 351, 352; Studholme v. Hodgson, 3 P. Will. 300, 303, 304; Johnson v. Mills, 1 Ves. 282, 283; 1 Madd. Ch. Pr. 180, 181; post, §§ 844, 848.

82 Fonbl. Eq. B. 4, Pt. 1, ch. 1, § 2, note (d); Rous v. Noble, 2 Vern. 249; s. c. 1 Eq. Abridg. 238, Pl. 22; Duncumban v. Stint, 1 Cas. Ch. 121.

4 Johnson v. Mills, 1 Ves. R. 282; Ferrand v. Prentice, Ambler, R. 273; s. c. 2 Dick. R. 569; Phipps v. Annesley, 2 Atk. R. 58; Green v. Pigott, 1 Bro. Ch. R. 104; Webber v. Webber, 1 Sim. & Stu. R. 311; Johnson v. De la Creuze, 1 Bro. Ch. R. 105; Strange v. Harris, 3 Bro. Ch. 365; Yare v. Harrison, 2 Cox, R. 377; Slanning v. Style, 3 P. Will. 336; Batten v. Earnley, 2 P. Will. 163; Jeremy on Equity Jurisd. B. 3, ch. 2, § 2, pp. 351, 352; Blake v. Blake, 2 Sch. & Lefr. 26. In Slanning v. Style, 3 P. Will. 336, it was said by Lord Talbot: Generally speaking, where the testator thinks fit to repose a trust, in such a case, until some breach of that trust be shown, or at least a tendency thereto, the court will continue to entrust the same hand, without calling for any other security than what the testator has required.' Yet in that very case, where an annuity was charged on the residue

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(a) And this though there has been no misconduct on the part of the executor and there is no reason to appre

hend any. Randle v. Carter, 62 Ala. 95.

604. Another class of cases of the same nature is where a specific legacy is given to one for life, and after his death to another; there the legatee in remainder was formerly entitled in all cases to come into a Court of Equity, and to have a decree for security from the tenant for life for the due delivery over of the legacy to the remainder-man. But the modern rule is, not to entertain such a bill unless there be some allegation and proof of waste, or of danger of waste, of the property. Without such ingredients the remainder-man is only entitled to have an inventory of the property bequeathed to him, so that he may be enabled to identify it; and when his absolute right accrues, to enforce a due delivery of it.1 (a)

of the personal estate of the testator, he ordered assets to the amount necessary to secure it to be brought into court. But where there is any danger of loss or deterioration of the fund, Courts of Equity in all cases used to require security. Rous v. Noble, 2 Vern. 249; s. c. 1 Eq. Abridg. 238, Pl. 22. But the modern practice seems to be (as stated in the text), to have the money paid into court; though it is certainly competent for the court to adopt either

course.

11 Madd. Ch. Pr. 178, 179; Bracken v. Bentley, 1 Ch. Rep. 110; Anon. 2 Freem. R. 206; Foley v. Burnell, 1 Bro. Ch. 279; Slanning v. Style, 3 P. Will. 335, 336; Hyde v. Parrat, 1 P. Will. 1; Batten v. Earnley, 2 P. Will. 163; Leeke v. Bennett, 1 Atk. 471; Bill v. Kinaston, 2 Atk. 82; Covenhoven v. Shuler, 2 Paige, R. 122, 132. This last case involved the question, What was to be done in case of a bill bequeathing to a wife the one third of the residue of the personal estate of the testator, and also the use of the residue during her widowhood; and it was held by Mr. Chancellor Walworth that the widow was bound to account for the whole personal estate; and that the two thirds of the residue of the personal estate, which was bequeathed over after the death of the wife, ought to be invested in permanent securities, and the income thereof paid to the wife during her widowhood, and after her death or marriage, to the legatees in remainder. The learned chancellor on that occasion said: The modern practice in such cases is only to require an inventory of the articles, specifying that they belong to the first taker for the particular period only, and afterwards to the person in remainder; and security is not required unless there is danger that the articles may be wasted or otherwise lost to the remainder-man. Foley v. Burnell, 1 Bro. Ch. Cas. 279; Slanning v. Style, 3 P. Will. 336. Whether a gift for life of specific articles, as of hay, grain, &c., which must necessarily be consumed in the using, is to

(a) Nor where personal property is given by will to A for life and then to B absolutely, can B, as mere matter of right, require the legacy to be brought into court and invested and the testator's estate administered by the court, for the purpose of security

to himself. There must be some reasonable ground for an application of the kind, such as danger to the fund. In re Braithwaite, 21 Ch. D. 121. See Phipps v. Annesley, 2 Atk. 57; Ferrand v. Prentice, Ambl. 273; Freeman v. Fairlie, 3 Mer. 29.

605. This may suffice, in this place, on the subject of the peculiar jurisdiction of Courts of Equity in cases of legacies where the relief sought and given is of a precautionary and pro

be considered an absolute gift of the property, or whether they must be sold, and the interest or income only of the money applied to the use of the tenant for life, appears to be a question still unsettled in England. 3 Ves. 314; 3 Mer. 194. But none of these principles, in relation to specific bequests of particular articles, whether capable of a separate use for life or otherwise, are applicable to this case. Where there is a general bequest of a residue for life with a remainder over, although it includes articles of both descriptions, as well as other property, the whole must be sold and converted into money by the executor, and the proceeds must be invested in permanent securities and the interest or income only is to be paid to the legatee for life. This distinction is recognized by the Master of the Rolls in Randall v. Russell, 3 Mer. R. 193. He says if such articles are included in a residuary bequest for life, then they are to be sold, and the interest enjoyed by the tenant for life. This is also recognized by Roper and Preston as a settled principle of law in England. Prest. on Leg. 96; Roper on Leg. 209. See also Howe v. Earl of Dartmouth, 7 Ves. 137, and cases in the notes. (a) The case of De Witt v. Schoonmaker (2 John. R. 243) seems to be in collision with this principle. But Mr. Justice Tompkins, who delivered the opinion of the court there, does not appear to have noticed the distinction between the bequest of a general residue and the bequest of specific articles. He says however it was the duty of the executors on the death of the widow to have paid and delivered the personal estate to the residuary legatee. If such was their duty they were not bound to deliver the principal of the estate into her hands without requiring security that it should be preserved and paid over to the residuary legatee after her death. That case was correctly decided; for it was manifestly the intention of the testator that the property should be delivered over to the son after the death of the widow, and that he should pay the legacy to his sister. This court presumed he had received the property agreeably to the directions of the will, and the executors were held not to be liable to the legatee in a Court of Law. In the case before me the widow was not entitled to the use or possession of any specific article of the personal estate, but only to one third of the principal, and the interest or income of two thirds of the remainder of the general residue after the debts of the testator and the legacy to Mrs. Cady were paid or satisfied. The complainants are therefore entitled to an account of all the personal estate of the testator in value as it existed at the death of their father; and after deducting the legacy to Mrs. Cady, and the funeral charges and the expenses of administration, their share of the balance must be invested in permanent securities, and the income thereof paid to Lena Shuler during her life or widowhood; and the principal after her death or marriage must go to the complainants.'

(a) See Mills v. Mills, 7 Sim. 501; Fryer v. Butler, 8 Sim. 442; Benn v. Dixon, 10 Sim. 636; Cafe v. Bent, 5 Hare, 24, 36; Hunt v. Scott, 1 DeG.

& S. 219; Howe v. Howe, 14 Jur. 359; Neville v. Fortescue, 16 Sim. 333; Morgan v. Morgan, 14 Beav. 72; s. c. 7 Eng. L. & E. 216.

tective nature. The subject will again come under review in the consideration of bills quia timet.1

606. In regard to a donation mortis causa, which is a sort of amphibious gift, between a gift inter vivos and a legacy, it is not properly cognizable by the Ecclesiastical Courts; neither does it fall regularly within an administration; nor does it require any act of the executor to constitute a title in the donee.2 It is properly a gift of personal property, (a) by a party who is in peril of death, upon condition that it shall presently belong to the donee in case the donor shall die, but not otherwise.3 (b) To give it effect, there must be a delivery of it by the donor; (c) and it is subject to be defeated by his subsequent personal revocation, (d) or by his recovery or escape from the impending peril of death. (e) If no event happens which revokes it, the title of the donee is deemed to be directly derived from the donor in his lifetime, and therefore in no sense is it a testamentary act.5 (f) And

1 Post, §§ 844, 845, 846.

21 Roper, Leg. by White, ch. 1, § 2, p. 2; Thompson v. Hodgson, 2 Str. R. 777; Ward v. Turner, 2 Ves. 431; Miller v. Miller, 3 P. Will. 356; 3 Wooddeson, Lect. 60, p. 513; Hedges v. Hedges, Prec. Ch. 269; Gilb. Eq. R. 12; 2 Vern. 615.

Ibid.; Wells v. Tucker, 3 Binn. R. 366, 370; Edwards v. Jones, 1 Mylne & Craig, 226; s. c. 7 Sim. R. 325; 1 Williams on Executors, Pt. 2, B. 2, ch. 2, § 4, pp. 544 to 554 (edit. 1838); Duffield v. Elwes, 1 Bligh, R. 530, N. s.; Lawson v. Lawson, 1 P. Will. 441; Hedges v. Hedges, Prec. Ch. 269; Gilb. Eq. Rep. 12; 2 Vern. R. 615; Tate v. Hilbert, 2 Ves. jr. 121; s. c. 4 Bro. Ch. R. 290; Miller v. Miller, 3 P. Will. 357; Irons v. Smallpiece, 2 Barn. & Ald. 552, 553.

Ibid.; 1 Williams on Executors and Administrators, Pt. 2, B. 2, ch. 2, § 4, pp. 544, 545, 546, 547; Ward v. Turner, 2 Ves. 431; Jones v. Selby, Prec. Ch. 300.

5 Ibid. Mr. Williams, in his excellent work on the Law of Executors and

(a) Meach v. Meach, 24 Vt. 591. (b) The intention to give must be clear. See First National Bank v. Balcom, 35 Conn. 351; Prickett v. Prickett, 5 C. E. Green, 478.

(c) Upon this point see Ellis v. Secor, 31 Mich. 185; infra, 607 a.

(d) Parker v. Marston, 27 Maine, 196; Stevens v. Stevens, 5 Thomp. & C. 87.

(e) Further upon the nature of this gift see Nicholas v. Adams, 2 Whart. 17; Raymond v. Sellick, 10 Conn. 480; Harris v. Clark, 2 Barb.

94; Parish v. Stone, 14 Pick. 198; Miller v. Jeffries, 4 Gratt. 472; Sims v. Walker, 8 Humph. 503; Brinckerhoff v. Lawrence, 2 Sandf. 401; Dole v. Lincoln, 31 Maine, 422.

(f) Upon the proof of capacity to make such a gift, the rule differs from that applied to testamentary acts. Crum v. Thornley, 47 Ill. 192. Failing as a will, a written instrument is not to be construed as a gift mortis causa unless all the elements of such gift are present. McGrath v. Reynolds, 116 Mass. 566.

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