5 Mo. 469 | Mo. | 1838
delivered the opinion of the court.
In 1836, Erwin filed her bill in the circuit court of Lincoln county, praying that court to decree to her a specific legacy which she alleges was bequeathed to her by the last will and testament of one Malcom Henry. The bill was demurred to for want of equity, and was dismissed by the court. It appears by the record that the testator, Malcom N. Henry, made his last will and testament, and shortly thereafter died. The will commences with the usual solemnity, and then says that after the burial expenses are paid, and all his debts are paid, the following disposition of the property shall be made: “Item 1st.- It is my will and desire that my boy, Adam, Juno and Cynthia, be released from bondage, on condition that Juno serve my sister Mary one year; Adam and Cynthia to serve the executor of my estate, or serve them to whom he hire them. Adam to serve two years, and Cynthia to serve four years, each then to have their perfect freedom, provided nay sister may quit her claim to Juno; otherwise, the property I will to her shall herejeafter be equally divided between my brothers and sisters: my desire is to pay sister Mary well for her claim on Juno.” The will then goes on to make several specific bequests and divises of real estate, apparently to a considerable amount. Then the will declares thus: “My crop of grain, farming utensils, household and kitchen furniture,' and' stoek, all of which I want valued and aeted on according to law, after my affairs are settled; thenj if there is a residue from hire of negrpes, crop, &c. 1 wish it to be given to Eleanor Erwin. I appoint Francis Henry my sole executor,” &c. The bill charges thgvt the executor took upon himself the execution of the wjll; made certain inventories, appraisements, &c.; and
3. That by the true construction of the will, the slave does not pass to the complainant by the residuary clause, but falls into the general assets. Mr. Wells, for the complainant, insists that, by the British chancery law, it was a peculiar power of courts of chancery to decree the payment of legacies, and particularly the payment of residuary legacies, and that that court took cognizance of accounts of executors and administrators, and compelled them to discover assets and render just accounts; and to prove this, he cites many authorities— see Mitford, 114; 1 J. Ch. R. 620; 1 Story’s Com. 599, 509 to 514. I have no doubt of the power of the chancery court in England, and that it has the power claimed for it by the complainant’s counsel as to this matter.
By section of the act respecting county it is enacted that the county court shall have, exclusive original jurisdiction in all cases relative to probate of last wills and testaments, the granting letters testamentary and of administration, and repeal-the same. The second clause then proceeds to enu-raei'dle other instances of jurisdiction, but drops the “exclusive original jurisdiction.” In the third paragraph, power is given to settle the accounts of ex-administrators and guardians, but still the words “exclusive original jurisdiction” do not occur. Yet we must at least read here that the jurisdiction is to be ori-and not appellate, and I see no great reason why we may not read also, that the jurisdiction shall be ex-elusive as well as original, so far as the mere tacking of se£lse ®nd sentences is concerned. This idea is also by the fact, that in the seventh instance, the act says the county court shall have concurrent ju-r'IS(fiction with the circuit court in all such cases, where demand shall exceed that sum — that is, a sum just enumerated in the sixth instance, which is the sum of I should have no doubt the words “original exclusive jurisdiction” would well pervade the statute till the 7th clause, if it were not apparent that tiro concurrent power in the 7th clause mentioned, is only mentioned for the purpose of parcelling out the objects of the concurrent authority in the 6th and 7th clauses only, if, indeed, the concurrent power is to b® carried up fo the 7th clause by implication, the same rule would carry the concurrent power to a great length beyond the 7th clause. In the 9th clause, both courts would have power to control and manage the property of the county; in the 10th, both would have power to puichase property for the county; in the 11th, to sell the same; and 12th, to audit and settle accounts against the county. For these reasons, I cannot admit that the exclusive jurisdiction in the first clause mentioned goes beyond that clause; nor that the concurrent jurisdiction mentioned in the seventh clause goes beyond it. Then, whatever is given to
It appears b<y the bill in this case, that several impor
That this course is sanctioned by precedent and authority — see 1 Story’s Equity, 560, passim, side paging; 1 Tucker’s Com. 437, 492; and the equity books are full of authorities on this point, under the heads of “ marshalling,”‘‘assets” and “substitution.” This brings me to