Langworthy v. Chadwick

| Conn. | Jul 15, 1838

Bissell, J.

The only question in this case, is, whether upon the facts found by the superior court, the plaintiffs are entitled to the relief sought by their bill. It is now too well settled to admit of dispute, that a remainder in personal chattels, dependant on an estate for life, may be created by grant or devise : and it is equally well settled, that the interest so created would be protected in chancery.

It was formerly held, that the person entitled in remainder might call for security from the legatee for life, that the property should be forth-coming at his decease. Vachel v. Vachel & al. 1 Chan. Ca. 129. Hyde v. Parratt & al. 1 P. Wms. 1. Bill v. Kinaston, 2 Atk. 82. Leeke v. Bennett, 1 Atk. 471. Ferrard v. Prentice, Ambl. 273. But this practice has been overruled ; and chiefly on the ground that to decree such security would be improperly to interfere with the will of the testator. And the course now is, for the remainder-man to call for the exhibition of an inventory, to be signed by the legatee for life, and deposited in court.

When, however, it can be shown, that there is danger that the property will be either wasted, secreted or removed, a court of chancery will interfere to protect the interest in remainder, by compelling the tenant for life to give security. And such, we suppose to be the well settled practice in Westminster-Hall. Foley & al. v. Burnell &. al. 1 Bro. Ch. Ca. 279. Batten v. Earnley, 2 P. Wms. 164. Slanning & al. v. Style, 3 P. Wms. 335. 1 Mad. 178. 2 Fearne, 35. Williams on Executors 859. Rous v. Noble, 2 Vern. 249. Indeed, the same regard to the intention of the testator, which forbids a-court of chancery to decree that security shall be given, where there is no danger, would seem to_ require such interference, where that intention is likely to be defeated, by the conduct of the devisee for life. This highly reasonable principle has been recognized in this country, and was fully adopted, by this court, in the case of Hudson v. Wadsworth &. al. 8 Conn. Rep. 348. See also 2 Sw. Dig. 154. 2 Kent’s Com. 287. 2 Paige 123.

The case, it is conceded, is to be governed by Hudson v. Wadsivorth, if the facts found bring it within the principle of that case : and upon this point, it is impossible to entertain a doubt. The facts in this case are, indeed, much stronger than that: for not only is the defendant found to be irresponsible, and to have removed out of the state, but she has also removed beyond the jurisdiction of the court whatever of the property she could controul, and has repeatedly threatened that she would so conduct with it as to defeat the rights of the plaintiffs.

We are, therefore, of opinion, that the prayer of the bill ought to be granted.

Williams, Ch. J., and Church and Huntington, Js. concurred in this opinion. Waite, J. gave no opinion.

Decree for plaintiffs.