A

TREATISE

ON

THE PRINCIPLES AND PRACTICE

OF THE

HIGH COURT OF CHANCERY;

UNDER THE FOLLOWING HEADS:

I. COMMON LAW JURISDICTION OF THE CHANCELLOR.

II. EQUITY JURISDICTION OF THE CHANCellor.

1. STATUTORY JURISDICTION OF THE CHANCELLOR.

IV. SPECIALLY Delegated JURISDICTION OF THE CHANCELLOR.

BY HENRY MADDOCK, Esq.

OF LINCOLN'S INN, BARRISTER AT LAW.

IN TWO VOLUMES.

VOL. II.

NEW-YORK:

PRINTED BY CLAYTON AND KINGSland, no. 15 cedar-street,

FOR

GOULD, BANKS, AND GOULD,

Law Booksellers, Sign of Lord Coke, Corner of Wall and Broad Streets,

AND

WILLIAM GOULD AND CO.

State-Street, Albany.

TREATISE, &c.

OF LEGACIES.

AFTER the payment of debts, the next duty of an executor consists in the payment of legacies.

The ground on which a legatee is permitted to file a bill in equity against an executor, is sometimes said to be founded on the right to a discovery of assets ;(a) though the better opinion seems to be, that it is grounded on the supposition of a trust.(b) But, certainly, it is not a trust to all intents and purposes, otherwise the ecclesiastial court, or courts of common law, could never have been applied to.

In very early times there appear to have been suits in the court of chancery for the recovery of personal legacies; but the Lord Chancellor Egerton was of opinion, that the ecclesiastical court was more proper to give relief in cases of *legacies, and sometimes he would send parties thither; but if the defendant answered the bill, and took no exceptions, he would then hear the cause.(c) The assertion, therefore, that, in the time of Lord Nottingham, the court of chancery began to exercise a jurisdiction in respect to legacies, (d) is not quite correct. Certain it is, however, that in Lord Nottingham's time, an executor was considered as a trustee; and, in his time, the opinion prevailed, that a legatee is entitled to bring his bill in equity

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against an executor for his legacy, upon the foundation, that the office of executor is a trust.

So also, an executor is considered as a trustee in certain cases for the next of kin ;(ƒ) and the same doctrine of trusteeship has been extended to an administrator, who is also considered as a trustee for the parties entitled to distribution.(g)

After some struggle, it seems now to be conclusively determined, that a pecuniary legacy, though assented to by the executor, (it is different as to a specific legacy assented to,)(h) cannot be recovered in a court of common law,(i) because that court cannot, as courts of equity can, oblige a husband suing for a legacy, in right of his *wife, to make a settlement; a reason, it is observable, which only extends to that particular class of legacies.

The ecclesiastical court has, as to legacies, a concurrent jurisdiction with courts of equity;(k) but the latter are almost always resorted to, for relief; because the remedy given by them is more effectual and complete. In courts of equity, executors may be compelled to bring in money, acknowledged to be in their hands ;(7) and may be obliged to give security for a legacy, payable at a future day.(m) So, where a husband claims a legacy, in right of his wife, he is in equity compellable to make a settlement ;(n) and moneys due to infants are, in those courts, advantageously laid out and secured in all which, the ecclesiastical court is deficient. So, likewise, the ecclesiastical court cannot, in any case, compel an executor to make a distribution of the residue, amongst the next of kin; because the claim upon him is as a trustee for the next of kin, and that court cannot enforce the execution of a trust,(o) or, as it hath been said, "any thing in the nature of a trust."(p)