D. devised all his estate to his executor in trust to convert
the same into money, and after payment of debts to invest the
surplus in the funds or put it out on interest. He then bequeaths
�1,500 to E. to be paid at the age of twenty-one, subject to
the subsequent provisos, and directs �1,000 to be set apart
and the interest to be paid to S. during her life, and after
bequeathing other pecuniary legacies, says,
"provided that in case the personal estate and the produce
arising from the real estate which I shall die seized and possessed
of shall not be sufficient to answer the said annuities and
legacies hereinbefore by me bequeathed, then and in such case I
direct that the said annuities and legacies so by me bequeathed
shall not abate in proportion, but the whole of such deficiency (if
any there shall be) shall be deducted out of the �1,500
bequeathed to E.,"
whom he also makes his residuary legatee.
The estate was more than sufficient, at the time of the
testator's death, to pay all debts, annuities, and legacies, but
afterwards, by the bankruptcy of the executor, became insufficient.
Held that E.'s legacy of �1,500 should be liable to
S.'s annuity.
This was a writ of error to the Circuit Court of the United
States for the District of Georgia to reverse the decree of that
court which dismissed the bill of the complainants, Sarah and
Abigail Silsby.
Daniel Silsby, the brother of the complainants and uncle of the
defendant Enoch Silsby, being seized and possessed
Page 7 U. S. 250
of real and personal estate in England and in the State of
Georgia, by his will, made in England, on 11 January, 1791, devised
all his estate to his, executor W. Gouthit, of London, in trust to
turn the same into money or securities for money, and after payment
of his debts to place out the surplus upon any public or private
securities upon interest or to invest it in the public funds.
He then bequeaths to his nephew, Enoch Silsby, �1,500
sterling, to be paid to him at 21 years of age "subject to the
provisos hereinafter mentioned," and directed the interest to be
paid to his guardian during his minority, to be applied to his
maintenance and education.
He then directs his trustee to set apart �1,000 sterling,
and pay the interest thereof to his sister Sarah during her life
for her sole and separate use and disposal, and in case of her
death without issue, the principal was to be paid over to Enoch. A
similar provision was made for his sister Abigail, the other
complainant. And after bequeathing several other pecuniary
legacies, he uses the following words:
"Provided always, and I do hereby expressly declare it to be my
will and meaning, that in case the personal estate and the produce
arising from the real estate which I shall die seized and possessed
of, shall not be sufficient to answer the said annuities and
legacies herein before by me bequeathed, then and in such case I
direct that the said annuities and legacies so by me given and
bequeathed shall not abate in proportion, but that the whole of
such deficiency (if any there shall be) shall be deducted out of
the said sum of one �1,500 herein before by me bequeathed to
my said nephew Enoch Silsby. And in case the personal estate and
the produce arising from the sale of the real estate which I shall
die seized and possessed of shall be more than sufficient to answer
and satisfy the several annuities or legacies herein before by me
bequeathed, then and in such case I give and bequeath the surplus
and residue which shall so exceed the purposes of this my will unto
my nephew Enoch Silsby, subject to such conditions as are herein
before in this my will mentioned and contained, touching and
concerning the said sum of �1,500 sterling, so by me
bequeathed as is herein before particularly mentioned. "
Page 7 U. S. 251
The testator died at Ostend on his way to the United States in
February, 1791, leaving real and personal estate more than
sufficient to pay all the debts and legacies and which came to the
hands of Gouthit, the executor, who paid all the debts and all the
legacies excepting those bequeathed to the complainants, and to the
defendant, Enoch Silsby, and another legacy of �500 to
Daniel Silsby Curtain, but upon these he regularly paid the
interest until the year 1796, when he became bankrupt.
The testator in his will mentions that he has in the hands of
Harrison, Ansty & Co., of London, �5,000 sterling, for
which they allow him an interest of 5 per cent per annum.
Gouthit, in his letter to the complainants of Sept. 7, 1791,
says
"I have an excellent offer -- a mortgage for �2,000 --
which, if you think well, I will take it, for if I should at any
time see well to place it any where else, by giving six months
notice, it would be paid. It is on an estate in Manchester, one of
the greatest trading towns in this kingdom, and I can make you 5
per cent sterling on it, which will, you know, be �50 a year
for each of you, and you may have it paid as you please, but every
six months I think would be best. The gentleman I mean to lend the
money to is an old acquaintance of your brother's, and the estate
is worth �5,000. He does but want �2,000, so you know
nothing can be safer on earth, and I will have the deed so recited
as to set forth the money is for your use, &c. This, I doubt
not, but will meet your approbation. I have taken no money out of
Harrison's hands, nor even interest, as I have no doubts of its
safety, and the interest is going on."
In answer to which the complainants wrote him on 1 Feb.,
1792,
"Yours of September 7, you mention an old friend of our dear
brother's wanting to hire the �2,000 on mortgage. We would
willingly oblige him, but cannot. We choose to let it remain just
as our brother left it, and shall draw on you every six months for
our interest. "
Page 7 U. S. 252
Gouthit, before his bankruptcy, drew all the money out of the
hands of Harrison, Ansty & Co., who were and always have been
solvent and in good credit. He never placed out in any specific
funds, the �2,000 from which the complainants' annuities
were to arise.
On 20 December, 1791, Gouthit sent a power of attorney to the
defendant, Thomas Young, of Savannah, in Georgia, to collect the
effects of the testator in that state, under which power Young
obtained letters of administration with the will annexed and took
into his possession all the property there, some part of which he
paid over to Gouthit. He also, in the year 1800, paid the legacy
due to Daniel Silsby Curtain, and part of the �1,500 legacy
to Enoch Silsby. Considerable debts due to the estate are still
outstanding in Georgia.
At the time of Gouthit's bankruptcy, he was indebted to the
estate of his testator in the sum of �5,380 12s. 2d.
sterling, but the commissioners refused to admit him as executor of
the testator to prove the same as a creditor of his own estate,
whereupon the legatees, who had not been paid, petitioned the Lord
Chancellor of England that Gouthit might be so admitted to prove
the debt for their benefits, which his Lordship decreed
accordingly, and a dividend of �403 10s. 10d. sterling was
received by the Accountant General of the Court of Chancery, but no
part of that sum has been received by the complainants.
Enoch Silsby filed a bill in equity in the Circuit Court of the
United States for the District of Georgia against Young to compel
him to account and pay over to him, as residuary legatee, all the
estate remaining in the hands of Young.
The complainants, Sarah and Abigail, filed the present bill in
equity in the same court against both Thomas Young and Enoch
Silsby, praying that Enoch's legacy of �1,500 may abate in
favor of their legacies, and that they may charge the residue of
the estate for the balance, and have their �2,000 placed out
on good security according to the will, and that they may be paid
the arrearages of their annuities out of the �1,500
legacy,
Page 7 U. S. 253
and out of the residue of the estate which came to the hands of
Young.
The judge below (Judge Stephens) dismissed the present bill and
decreed, that Young should account to Enoch Silsby upon the other
bill in which Enoch Silsby was complainant and Thomas Young
defendant.
Page 7 U. S. 261
MR. CHIEF JUSTICE MARSHALL delivered the opinion of the
Court.
This being a suit in chancery brought by legatees claiming an
account in order to the payment of their legacies, and their bill
having been dismissed without an account, the decree can only be
supported by showing that there are, in the hands of the
administrator, no assets which ought to be applied to the purposes
prayed in the bill.
The testator having bequeathed to each of his two sisters, Sarah
and Abigail, who are the complainants, the interest on one thousand
pounds sterling, and that being in arrears, and assets having come
to the hands of his representative, the complainants are certainly
entitled to an account unless they have forfeited all pretensions
to their legacies.
Page 7 U. S. 262
The defendants say they have forfeited their rights
1st. By a letter, selecting a particular debt in satisfaction of
their legacy, which debt is lost.
2d. By their laches.
The better to understand the correspondence, which is relied
upon, it must be recollected that by the will, the whole estate,
real and personal, of the testator was devised to executors and
trustees, who were directed to place it out on public or private
security, in such manner as should, in their judgment, best promote
the interests of the legatees. The testator then directs, among
other bequests, that his trustees shall set apart one thousand
pounds sterling for each of his sisters, the interest of which
shall be paid to them during their natural lives, after which the
principal is to be divided between the children of each if they
should marry and have children, but is given to his nephew, Enoch
Silsby, in the event of the first legatees' dying unmarried or
without children.
This duty of the executor and trustee being thus plainly marked,
he addressed a letter to the legatees in September, 1791, in which
he mentions an offer which had been made him of a mortgage of
�2,000, the amount of the sums to be set apart for them,
which he will take if it meets their approbation. If the plaintiffs
had taken this mortgage and the title had proved defective or the
mortgaged property had been destroyed, they would most probably
have forfeited all claims upon the estate of their testator and
would have been at least censured by the legatee in remainder for
having destroyed, by an improvident intervention in the management
of the estate, his right to the principal sum on their dying
unmarried. Such an interference on their part was unnecessary,
because the executor was authorized by the will to place the estate
either on private or public security, as he should think most
advantageous, and would have been particularly indiscreet because
they could neither judge of the validity of the title nor of the
value of the premises proposed to be mortgaged. To have
intermeddled
Page 7 U. S. 263
with the subject would therefore have been in them a departure
from propriety and common prudence not to be accounted for nor
justified.
Under these circumstances, they say,
"You mention an old friend of our dear brother's wishing to hire
the �2,000 on mortgage. We would willingly oblige him, but
cannot. We choose to let it remain just as our brother left
it."
To the Court it seems that this letter will admit of but one
construction. It is a plain declaration that they do not mean to
intermeddle with the duties of the executor, but to leave him to
perform them according to the directions of his testator. "We
choose to let it [the legacy of �2,000] remain just as our
brother left it" is plainly saying that the legacy must remain on
the foundation on which the will placed it. The construction which
would convert these words into a declaration that they chose the
debts of their testator not to be collected, and that they chose to
take upon themselves the hazard of the solvency of any particular
debtor, whose debt should remain outstanding, or of the executor,
if he should happen to collect it, is really too violent a
distortion of them to be tolerated for an instant.
As little foundation is there for the allegation that the rights
of the complainants have been forfeited by their laches. The Court
can perceive no laches on their part. It was not particularly
incumbent on them to incur the expense of inquiring into the manner
in which the executor performed his trust with respect to the
estate at large. They received their interest regularly, and there
was no circumstance to awaken a suspicion that they were in danger.
On the residuary legatee and on his father and natural guardian it
was more particularly incumbent to examine into the conduct of the
executor, and though he may be perfectly excusable for not having
done so, he cannot throw the loss on others whose conduct has been
perfectly faultless.
Page 7 U. S. 264
The Court is therefore clearly and unanimously of opinion that
the complainants have not forfeited their rights, and consequently
that the decree must be reversed and an account directed.
In considering the principles on which the account is to be
taken, the Court thinks it perfectly clear that the specific
pecuniary legacies must be set apart before the defendant Enoch
Silsby can be entitled to the residuum. The words annexed to the
bequest of the residuary estate which subject it to the same
conditions with the bequest of the �1,500 are understood by
the Court to relate to the condition of payment at the age of 21
and to the limitations over in case of the death of the residuary
legatee, not to the question of abatement, and a residuum,
ex
vi termini, is that which remains after particular legacies
are satisfied.
The Court is also of opinion that if there be not sufficient
assets to satisfy all the specific legacies, the loss must fall
exclusively on the �1,500 given to Enoch Silsby, until that
fund be exhausted.
It has been argued that the words of the will limit this charge
on that legacy to the contingency of an insufficiency of assets at
the death of the testator. The words are
"It is my will and desire that if the personal estate and the
produce arising from the real estate of which I shall die seized
and possessed shall not be sufficient to answer the several
annuities and legacies herein before by me bequeathed, then and in
such case I direct that the annuities and legacies shall not abate
in proportion, but that the whole of such deficiency, if any there
be, shall be deducted out of the said sum of �1,500
hereinbefore by me bequeathed to my said nephew Enoch Silsby."
These words have undergone a very critical examination, and it
has been contended that the time at which the sufficiency mentioned
in the will is to be determined is fixed by the testator at his
death in like manner as if the expression had been "if my estate
shall not, at the time of my death, be insufficient," &c. But
the words do not appear to the Court to demand such an
interpretation. The words "the personal and real estate of
Page 7 U. S. 265
which I shall die seized and possessed" are no more in substance
than the words "all my real and personal estate" would have been.
They describe the subject on the insufficiency of which an
abatement of a particular legacy is to take place, but not the time
when that insufficiency is to be tested. In the opinion of the
Court, that time is when the will is carried into execution by the
application of the funds to their object. If, when that application
is made, a deficiency appears, "then and in that case" it is that
the abatement is to take place in the specific legacy to Enoch
Silsby.
This specific pecuniary legacy, being given to the same person
to whom the residuum is given, and on the same terms, assumes
completely the character of a residuary bequest, and the testator
does not appear to have intended to give it any preference over the
residuum. He seems to have intended certain provisions to his
relations, the extent of which were apportioned to his opinion of
their necessities, and which he did not leave in a situation to be
enlarged or diminished by any incident which might affect the state
of his affairs. Should his property be merely sufficient to pay
those annuities and legacies, they were to sustain no deduction;
should it be ever so much enlarged, they were to receive no
increase; but all he might possess exceeding those specific
donations was to be given to his nephew. His bounty to his other
legatees was measured; that to his nephew was not defined. As in
every case where specific legacies are first given, so in this, it
is the intent of the testator to prefer the specific legatees.
There would have been no motive for giving a specific legacy,
subject exclusively to abatement in case of deficiency, to the
residuary legatee but for the purpose of providing a fund for his
education and maintenance during his infancy. For every other
purpose, this particular legacy to Enoch Silsby is to be considered
as a part of the residuum.
It is not easy to assign a motive in the testator for intending
a preference to his specific over his residuary legatee, in the
event of an insufficiency of assets at his death, which would not
equally apply to an insufficiency which should take place
afterwards. The only motive for this preference which could
possibly have existed
Page 7 U. S. 266
was his wish that, if the fund should not be adequate to pay all
his legacies, yet no deduction should be made from those which were
particularly bequeathed. This wish originated in his particular
feelings towards his relations, and could not depend on the
insufficiency which he provided against taking place at the time of
his death or a few months or years afterwards. If, at the time of
his death, his estate had been sufficient, but before it could be
collected and applied according to his will, bankruptcies or any
other casualties had occasioned a deficiency, no reason can be
perceived by the Court for supposing that the contemplation of such
a deficiency would have induced him to make a different arrangement
of his affairs, from what he would have made had he contemplated a
deficiency at his death. And between such a deficiency and one
occasioned by the fault or misfortune of an executor, chosen, not
by his legatees but by himself, the Court can perceive no
distinction.
It is therefore the opinion of this Court that the decree of the
circuit court be reversed and that the cause be remanded to the
circuit court that an account may be taken in order to a final
decree.
Reversed.
DECREE.
This cause came on to be heard on the bill, answers, exhibits,
and other testimony in the cause, and was argued by counsel, on
consideration whereof the Court is of opinion that there is error
in the decree of the circuit court in directing the bill of the
complainants to be dismissed, and that the same ought to be
reversed and annulled. And this Court doth farther direct and order
that the said cause be remanded to the circuit court that accounts
may be taken of the assets which are in the hands of the defendant,
Thomas Young, of the payments which have been made to Enoch Silsby
and of the sums which are due to the complainants and of such other
matters as may be necessary to a final decree.
