Gallagher against Gallagher; Stewart against Gallagher, 6 Watts 473

The opinion of the Court was delivered by Sergeant, J. These suits were brought to recover legacies bequeathed to the plaintiffs respectively, by the will of Thomas Gallagher, deceased.

It is contended by the defendants, that they are specific legacies, payable out of a debt which the testator claimed to be due to him from his brother George, for his assistance and attention to the mercantile business carried on by George; that in fact no such debt xvas due, and therefore, as the fund has failed, the legacies also failed, and the court ought to have instructed the jury to that effect: instead of which, they placed the plaintiffs’ rights on another principle, which principle does not apply to the case. I do not perceive in these bequests any of the features of specific legacies.

The assistance given by Thomas to his brother, seems to be recited in the commencement of the will, rather as a reason, why he carves these sums out of his estate, the whole of which, with these exceptions, he bequeaths to George. Even if the legacies xvere given out of the debt thus claimed as due to the testator by George, it would not follow, that the legacies fail, by the failure of the modus appointed for payment.

The rule is, that such legacies are in one sense only specific, namely, that against all other general legatees, they have a precedency of payment out of the debt or security; but in another sense, the legacies are general, since if the debt be not in existence at the testator’s death, or if it be insufficient to pay the legacies, the legatees will be entitled to satisfaction out of the general estate of the testator. 1 Rop. Leg. 181, and cases cited.

The error assigned in the charge of the court, as to the election by George Gallagher to take under the will, (the second error assigned,) is therefore, immaterial, because the legacies were payable out of the general assets of the estate, though no claim against George Gallagher existed.

If assets came to the hands of George, the acting executor, he became responsible for these legacies, (subject to deduction for the testator’s debts) according to the will; to pay over the interest on the principal sums of 5000 dollars each, annually, to the parents respectively, for the education of the children during their minority, and on their arriving at full age, to pay the principal to the children themselves. It is clear, however, that neither the parents nor the children can recover the principal, while the children are, as it is stated they are, minors.

This would be contrary to the express directions of the will. The testator declares, the principal shall remain in the hands of his executors during the minority of the children, and that their parents should receive the interest. The principal is contingent until the children come of age: for if any of them should happen to die under age, and without issue, their shares are to go over to their surviving brothers and sisters respectively; and even after-born children are included in the will. The principal sum, therefore, cannot be recovered by either parents or children, while the children are minors.

It is only the interest which can be claimed before their majority, and that is to go to the parents respectively, to be disbursed by them in their education. Two executors, it seems, were appointed — George Gallagher and John Gallagher. George alone, took upon himself the administration, and acted.

Evidence was given by the plaintiffs, to show, that although the mercantile business was carried on by George in his own name, yet in reality, the whole of the property, both real and personal belonged to Thomas: and that after the death of Thomas, George stated, that the property which came to him from Thomas, amounted to from 40 to 60,000 dollars, and promised to pay the legacies to the plaintiffs; and also spoke of investing the 10,000 dollars in real estate for their security.

George died in June 1833, a little more than two years after the death of his brother Thomas, it would seem, considerably indebted, and his estate is now said to be insolvent. The other executor, John, who is living, has never acted. The defendants are the administrators of George. Under these circumstances, the principal sum ought to be in the hands of a trustee: and John, being surviving executor, has a right as such to come forward, and assume the administration of Thomas’s estate, and the trusteeship of this fund by virtue of his executorship. Toll. Ex. 44.

Should he decline, some other trustee may be appointed, who would have authority to recover the principal sum, and hold it according to the will. All that the defendant can be liable for in the present suits, is the interest which was due to the parents, during the lifetime of George. That became a debt from George, for which he was liable, if he received assets from the testator to pay it.

After his death, the defendants do not hold as trustees, but as administrators of a deceased trustee, and ought to pay over the fund, principal and interest, from the expiration of the year preceding George’s death to the trustee, who would then hold the principal, and pay over the interest to the parents, till the time arrives for paying the principal, according to the will, to the children entitled under it.

It was contended by the defendant, and evidence was given to show, that George died indebted to various persons, and not leaving assets to pay all his debts; and it is assigned for error, (see the 3d error) that the court ought to have instructed the jury, that, from the whole evidence in the case, a recovery by the plaintiffs would be in fraud of creditors, and therefore, their verdict should be for the defendants. I am of opinion the court below went as far on this point as they ought to have gone.

They instructed the jury, that, if Thomas Gallagher, in his lifetime, made a gift of all his property to his brother George, and upon the credit of that property, he, George, contracted debts, and the estate is insolvent, the creditors should be first paid, and the plaintiffs cannot recover: but, if George Gallagher took the property under his brother’s will, the plaintiffs became his creditors. As such creditors, however, they are not entitled to recover the whole legacies, for the reasons I have stated.

The parents are only entitled to recover from the defendants, the interest due by George Gallagher on those legacies in his lifetime. The testator died in Aprill831; George died in June 1833. By the will, the interest is to commence one year after the testator’s decease, and to be paid annually; George, therefore, was accountable, and his administrators were bound to pay to the parents one year’s interest, due in April 1833, supposing assets came to the hands of George. Judgment reversed, and a venire facias de novo awarded.