In the Courts of Common Law. : As to the reco- suggestion that the executors had consented to take as legatees; very of legaand by this mean, the property vested in them as legatees, and cies. was altered from what it was when they were executors; for when they were executors, one might have granted away all the goods, but after taking as legatees, one could grant but a moiety and it is added, when a certain thing, as a horse, or cow, is devised, as soon as the executor assents, the property vests in the legatee, and he may have an action at common law for recovery of the thing; and therefore differs from the case in 2 Roll. Abr. 301, for that was for a legacy for which the common law gives no remedy. That must be understood to mean a legacy payable out of the general funds of the testator, in contradistinction to a legacy of a specific thing." Le Blanc, J., said; "It is admitted, that, upon the old authorities, there is no doubt of the plaintiff's right to recover, unless they have been overruled by the case of Deeks v. Strutt. But that never could have been in the contemplation of the Judges there; because it formed a ground of objection with them to the action, that it was a novel attempt, to contend that the law would raise an implied assumpsit against an executor, merely from the possession of the assets. They thought that it would not: and, in discussing that point, they shewed the inconvenience which would result from extending the law in that respect further, than it had been carried before." In Williams v. Lee (u), a specific legacy having been bequeathed to the defendant, who applied to the plaintiff (the executor), and who assented to the legacy, but delayed to deliver it, the defendant brought an action of trover for the legacy, consisting of several specific things mentioned in the will, and had a verdict and 2007. damages. The bill was filed, in order to set aside the verdict and judgment at law, as obtained against conscience. The defendant pleaded the verdict and judgment at law. Lord Hardwicke, C., allowed the plea, observing in the course of his judgment, "It is very extraordinary if a legatee must in every instance bring a bill in this Court for the recovery of a legacy against an executor; for, though it is said by the plaintiff's counsel, that, after a testator's debts are paid, the residue vests in an executor, and the legatee is not entitled to it at law, yet after an executor has assented, an action for trover will certainly lie for a legacy” (v). (u) 3 Atk. 223. (v) See also Cooper v. Thornton, 3 Bro. C. C. 98, stated supra, p. 887. Trover is founded in the property of the plaintiff, who must In the interalso have the right of possession as well as of property (w), pretation of legacies. both these rights must, therefore, concur in the legatee of the specific personal chattel, in order to entitle him to this species of remedy for the recovery of his legacy. In the instance of a specific real chattel, the cases before stated shew that where the action lies at law, ejectment is the proper remedy. It was decided in the case of Nicholson v. Sherman (x), that an action on the case will not lie for a general legacy. The cases cited below (y) are early authorities, wherein it is stated, that an action of debt or on the case will lie for money charged upon land; but it would seem that the reasoning upon which the case of Deeks v. Strutt was decided, is equally applicable to those authorities, and would overrule them. SECT. III. Of the jurisdiction of the Courts in the interpretation of testamentary dispositions. tamentary dis A very few observations will suffice upon this subject. Each As to the interCourt in which a legacy is recoverable must of course have the pretation oftes power of interpreting the effect of the gift in question; and in positions. the administration of this branch of jurisprudence, it is of the utmost importance, with a view to uniformity of decision in all Courts taking cognizance of questions of property, that there should be well-established maxims in the interpretation of written instruments, as to the legal import and effect of technical expressions; and that such rules of construction, like other rules of property, should be recognised, and, as far as practicable, adopted by those Courts, whether in the exercise of their exclusive or concurrent jurisdiction. The importance and necessity of this uniformity has been long felt and repeatedly insisted on by great authorities (z); and, indeed, does professedly, and in every case should practically regulate the determinations of Courts, having jurisdiction in questions of property. The well-known maxim of Equitas sequitur legem is founded upon this principle, and we accordingly find (w) Pyne v. Dor, 1 T. R. 56; Gordon v. Harper, 7 Ib. 9. (x) Sir Thomas Raym. Rep. 23; Sid. 45, S. C. (y) Anonymous, 6 Leach's Mods Rep. 27, per Holt, Ib. 11, p. 91; Ewer v. Jones, Holt's Rep. 419; James v. Semmens, 2 H. Black, 213; (z) See Mr. Justice Yates and Sir In the Courts Common Law. of Equity and In the inter pretation of legacies. it governing the Courts of Equity in the construction of a large proportion of bequests of personalty, as well as of devises of real estate; and in which trusts are subjected to the same rules which of Equity and govern legal estates. In the Courts Common Law. In the Eccle The principle is further recognised in a practice of frequent recurrence, namely, that of sending a case out of Chancery for the opinion of the Judges of the Courts of Common Law. This continually happens in causes originating in the Court of Chancery, as coming under some one of its branches of peculiar jurisdiction, and in which a question of mere law arises; as, for instance, whether the words of the devise or bequest give a limited or an absolute interest in the subject of disposition. In such cases the Court refers the matter to the opinion of the Judges of the Courts of King's Bench or Common Pleas, upon a case stated for that purpose. This rests entirely with the discretion of the Court, which will not send a case to a Court of Law at the suggestion of the heir, if the construction is clear (a). In unison with the anxiety of the Courts to preserve uniformity of decision in all questions of construction of wills, as in rules of property, we find it the practice, quite of course, for the Courts of Equity to refer to decisions in the Courts of Law upon the subject in question; and so, on the other hand, the decisions of Courts of Equity are held by the Courts of Common Law as binding authorities. Instances in support of the preceding observations are so numerous, and of such frequent recurrence, that they may be found in almost every volume of printed reports. A reference, therefore, to particular cases illustrating the present subject, is in this place quite unnecessary: and, indeed, they will sufficiently appear in the detailed discussion of the cases in this Treatise. The preceding remarks upon the uniformity of decisions in siastical Courts. questions of interpretation are, it is conceived, equally applicable to the Ecclesiastical Courts. If, for instance, a legacy of 1,000l. be given to the testator's "next of kin," or to his "relations," and a suit were instituted in the Spiritual Court by a person claiming in the character of next of kin or relation of the testator, and it should so happen that there is no necessity for the legatce's proceeding in the Court of Chancery to avail himself of any of its branches of peculiar jurisdiction, it is presumed that the Spiritual Court would, in the interpretation of such legacy, be guided by the decisions of the (a) Muddle v. Fry, Mad. & Geld. 270. pretation of Courts of Chancery and Common Law upon the construction of In the intera similar bequest (b), and would decree the payment of the legacy legacies. accordingly. Indeed, in the construction of legacies merely per- In the Eccle sonal, Courts of Equity in general follow the rule of the Civil siastical Courts. Law, because personal legacies are properly cognizable in the Ecclesiastical Court, and have considered themselves bound to follow the rules of that Court, to which the jurisdiction properly belonged; so that in all probability the construction of the Court of Equity would correspond with that of the Ecclesiastical Court, had the case supposed originally called for the interpretation of the latter (c). But were the case otherwise, although the Court of Arches must be considered as possessing original jurisdiction in all cases of legacy, yet the importance of uniformity in the construction of testamentary dispositions of personal property, as well as in devises of real estate, would, it is conceived, be acknowledged and acted upon by the Spiritual as well as by the Temporal Courts, it being of equal consequence to the community that rules of property should be uniformly established, whatever may happen to be the nature of the jurisdiction or form of procedure of the various Courts by which such questions are entertained. In the case of Hasting v. Hayne (d), the construction given to a bequest by the Ecclesiastical Court was not followed by the Court of Chancery, Sir L. Shadwell observing, that he was not bound by the judgment of Sir John Nicholl, as he did not know that Sir John had before him the circumstances which were found in the Master's office. But if the sentence of the Ecclesiastical Court, in a suit for administration, turns upon the question, which of the parties is next of kin to the intestate, such sentence is conclusive upon that question in a subsequent suit in the Court of Equity between the same parties for distribution. This was decided in Barrs v. Jackson (e): there a suit had been instituted in the Prerogative Court for administration to the estate of an intestate, H. M. Smith. Jackson, the defendant, claimed as second cousin, Mrs. Barrs claiming as her niece. The Ecclesiastical Court decided in favour of Jackson, and sentence was, that administration should be granted to him. A suit (b) For decisions upon construction of bequests to relations and next of kin, see Chap. II. s. 5. 6. (e) 3 Atk. 333; see pp. 553, 570, 649, 652. (d) 6 Sim. 71, supra, 1684. (e) 1 Phil. 582; 1 Yo. & Coll. (C.), 585; see also Thomas v. Hetteriche, 1 Ves. sen. 333. cies. In the Eccle In the interpre- was subsequently instituted in the Court of Chancery by Mrs. tation of lega- Barrs, claiming as niece and next of kin the residuary estate of the intestate. The question in issue was the sole question in the siastical Courts. Ecclesiastical Court, and Sir Knight Bruce, V. C., not considering the decision of that Court conclusive, directed an issue, from which order Jackson appealed; and Lord Cottenham, C., decided, upon the authority of Bouchier v. Taylor (ƒ), that the previous judgment of the Ecclesiastical Court was conclusive upon the question at issue, and allowed the appeal. In the latter case (fully cited by Lord Cottenham, C., in Barrs v. Jackson), Dr. Bouchier claimed to be next of kin to Ann Millington, as her first cousin once removed: Alice Merchant claimed as her first cousin. A suit was instituted for adminis tration in the Prerogative Court, and the decision was in favour of Dr. Bouchier. That decision turned solely on the question which of the two claimants was next of kin. Afterwards a suit was instituted in the Court of Chancery by a person claiming under the will of Alice Merchant as her residuary legatee; the defendant insisted on his title as next of kin, and the question was, whether the decision of the Ecclesiastical Court was conclusive. The suit in the Court of Chancery was not actually between the same parties as in the Ecclesiastical Court, but between one of the same parties and the person claiming under the other, and so in effect between the same parties. The cause came on before Lord Keeper Henly, and the sentence of the Ecclesiastical Court being insisted on, as a bar to the suit, it was ordered that the plea should stand for an answer, with liberty to except. Exceptions were accordingly taken, and upon the argument on those exceptions two points were raised; first, whether the sentence was conclusive; and secondly, if it was not, what was the effect of certain special circumstances which were also insisted on. The Lord Keeper directed an issue; and Lord Bathurst, C., on appeal, affirmed that decision, only varying the form of the issue. On appeal to the House of Lords, the decision of the Lord Chancellor was reversed, his Lordship being present as Chancellor, making no opposition, and Lord Mansfield being the only speaker on the subject. (ƒ) 4 Bro. P. C. 708. ADDENDA. |