3 N.J. Eq. 120 | New York Court of Chancery | 1834
The complainants are residuary legatees under the will of Apphia Davenport, deceased. They call for an account of the real estate, (which was ordered to be sold,} and also of the personal; and, alleging that the estate is sufficient to satisfy the debts and pecuniary legacies, and admitting that the legacies are to be paid according to the will, they seek to have the clear balance or residuum of the estate ascertained, and to have it paid to them by tbe executor, according to their respective rights.
The testatrix, by her will, after ordering her debts to be paid, gives to her sister, Catharine King, two thousand dollars, under the following conditions: that the sum of two thousand dollars be put at interest by her executor, and the interest accruing thereon be paid to her yearly while she remains the wile of Henry King; but in case she does not become a widow, and dies before her husband, then the said sum of two thousand dollars to be divided as follows: one thousand dollars to be paid to her
The defendant admits the will', and that the complainants are the residuary legatees ; and craves the direction of the court, in relation to his own safety, and the rights of the complainants. He submits whether he is bound to pay over the residuum of the estate, until all the legacies are fully satisfied ; that there is no plain word of reference in the will whereby (he sum of two-thousand dollars, directed to be paid over in case of the decease of Catharine King in the life time of her husband, is the same two-thousand dollars ordered to be put out at-interest] and whether, incaseof any loss by insolvency or otherwise, (without the-default or negligence of the executor,) such loss-would not fall-on the executor. He also states, that Alexander Mulford has not yet attained the age of twenty-two ■ years; that when he shall- attain that age he wil-1 be entitled- to receive his legacy without any abatement or loss, and he insists that if there be loss, it should fall on the residuum of the estate.
The defendant objects that Catharine King and the lawful-heirs of Deborah Seabury, and also- Alexander Mulford and his brothers and sisters, or at least Catharine King and Deborah Seabury, are not parties to this suit; and that unless they -are brought-in; he will not be safe in the performance of any decree of the court-
The objection for the want of parties, is not well taken. Catharine King and Alexander Mulford are not interested in the distribution of the estate, or in the account to be taken. If they
There is an apparent difference in the case now before the court, from those cited, inasmuch as these legacies arc not to be •paid immediately, and therefore the legatees may be considered as interested in the residuum, inasmuch as part of it may be wanted to make up any deficiency arising from accident or loss, happening before payment. I think, however, this is not sufficient to break in on the rule, and that if the executor is entitled to ■any protection against such a contingency, it must be given'him in some other way.
As between the complainants in this suit and'ihese legatees, there is nothing to controvert. There is no question as to their rights, and it is not perceived that any valid decree-could be had against them; and, in general, no person against whom a decree cannot be had, should be made a party: De Golls v. Ward, 3 P. W. 310, note; West v. Randall et al. 2 Mass. R. 102.
The defendant, however, submits to the court whether he is ■to pay out the residuum of the estate, until the legacies are first fully paid ; and if so, whether he is to be held liable for any loss that may be sustained, as the legacies are not to be paid out until a future day, and must be retained in the hands of the executor.
The will on this subject is not without obscurity. It would seem at first, as though the testatrix intended to set apart a particular fund of two thousand dollars out of the estate, the interest of which was to be paid annually to Mrs. King, and the principal, either to her after the death of her husband, or to other persons upon her dying in the life-time of her husband ; and if the fund should suffer any loss, it must be borne by those who are .to receive it. But 1 think the instrument should not receive' that construction. If Mrs. King survive her husband, she is to receive at .the hands of the executor two thousand dollars. There is to be no abatement for loss. It is not the fund that is to be paid to her, or the balance of it, but the specific sum of two thousand dollars, and nothing less. And so if she dies in the life-time of her husband, the specific sum of one thousand dollars is to be paid to Jacob Yanderpool, and the other thousand dollars, in equal shares, to other persons. I see nothing to prevent these persons from calling on the executor for the whole amount, nor do I see how he could defend himself against the claim. Courts of equity have gone very far to protect executors and trustees, while acting faithfully in the discharge of their trusts, and they ought in no case to be losers. The cases of Soundy v. Binyou, 3 Bro. C. C. 258, and Breton v. Lord Clifden, 1 Sim. and Stu. 363, go far to show, that the security shall not be lessened in the hands of the executor; but they are both plainly distinguishable from the one now before the court, and I do not feel justified in placing myself upon them.
Let there be a decree for an account, &c„