John H. Lewis, Appellant, v. Sarah Darling, 16 How. 1

Mr. Justice WAYNE delivered the opinion of the court. We have verified the statement of the pleadings in-this case attached to the brief .of the counsel for the appellant, by a comparison of it with the record, and shall adopt it for the purpose of giving our judgment upon this appeal. Upon this statement, the counsel for the appellant urges five grounds for the reversal of the judgment. 1. It is said that ,the bill is materially defective for want of parties, that the wife of the appellant,' through whom alone he claims and whose rights he repre-sents, ought to have been made a party. ■' .2.

That there is no allegation in the original or amended bill, that all the personal property of the testator had come into the hands of the-appellant, or that-so much of it as he may have received, was sufficient to pay the legacy claimed by-the appellee,Sarah Darling. 3. That there is no averment in the bill that there was not sufficient personal property to pay the legacy. 4. That the effect of the plaintiff’s replication being an ach mission of the sufficiency of the defendant’s ' second answer, there is no evidence, to authorize the decree against the defendant. 5.

If this be not the effect of the replication, yet the answer is distinct and full, and there is no evidence that any property belonging to the estate of Samuel Betts ever came into the hands of the defendant, and that he cannot be liable de bonis propriis. We have given these points because they raise every objection "which can be made against the judgment of the court below, either upon the pleading or the merits of the case. We will discuss them' successively.

The record certainly discloses the fact, that the wife of the appellant nas such an interest in the controversy, that no decree can be given which will not affect it. She is the residuary legatee of her father, and all the property given by that clause of his will' became hers immediately upon his death. The interest which the appellant may have in it was acquired from his marriage with her, after her father’s death.

It is strictly marital, arid the extent of it during the coverture, or afterwards if he lives longer than his wife, depends upon the law of the sovereignty where the real estate may be, and, so far as the personal property is concerned, upon the investiture of it in the legatee according to the law of her father’s domicil at the time of his death. Or it may depend upon a marriage contract, if any was made'. We' have not undertaken to say what that interest is, or may become.

We have only intimated upon what it may depend; and .will further say, that the children, in the event of their mother’s death, may acquire an interest in the property, independently of their father’s control. If she- be already dead, then such of' the children as are- sui juris should be made parties to the plaintiff’s bill. And -if there are other children still minors, the court should have them made parties by a guardian of its appointment, excluding their father from such an office. As the case stands, it is not too late to amend the bill by making the proper parties.

The rule in equity, permitting it to be done, is this; that on the hearing of a cause, even upon an appeal, an order may be made for the cause to stand over, with liberty to the plaintiff to amend by adding proper parties, if it. appears that the plaintiff is,-entitled to relief, but that it cannot be given for the want of proper parties. The equity -of the plaintiff is sufficiently obvious in this case for the application of the rule. The proofs in the case show that she has a strong claim upon the appellant for the payment of the legacy for which she sues him.

It is manifest that the legacy has been made by the testator a charge upon both the real and personal estate which he means to give to his daughter. It will not do, then, to permit it to be defeated in this suit by any mistake or unskilfulness in pleading. We shall then reverse the judgment appealed from, in conformity with the first objection made against it. But we will remand the cause to the Circuit Court for further proceedings, and for‘the proper parties to be made. The second and third objections are also exceptions to the sufficiency of the plaintiff’s pleadings.

Ik is said, that there are no averments in the bill, that all the personal property of the testator had come into the possession of the appellant. And if any part had come, that it was sufficient to pay the legacy. And further, that the bill contains no averment, that there was not sufficient personal property to pay the legacy. These objections are made upon the supposition that the legacy, in this instance, cannot be charged upon the real estate of the testator 57 il it has been shown that there is not personal property enough to pay the legacy.

That depends upon ‘ the intention, as it is to be collected from the residuary clause of the testator’s will.

It is, “And as to all the rest and remainder of my property, debts, rights, and actions, of what kind and nature soc.ver, that may belong or appertain to me, I ríame and appoint as my sole and universal heiress, the above, named Maria Margaret Betts, my lawful daughter, in order that whatever there may appear to appertain and belong unto me, she may háye and inherit the same, with the blessing of God and my own.” The testator’s real and personal property are found blended by him in the clause together. lie leaves to his daughter all of his property, of every kind, which may remain after the antecedent bequests' and devises in his will have been paid and given to the objects of his bounty.

His daughter is to have “the rest and remainder of his property, debts, rights, and actions, of what kind and nature • soever.” lie had previously, in the will, declared that his property consisted of one third in the House established in this city under the firm of Fernando de la Maza Arredondo and Bon, and that it would appear from the accounts, books', and other papers of the company. And he further dec-lares that as both the debts due by him and to him will appear by the books of the company, that he confides it to his partners to collect and pay them.

His executors were not to have any thing to do with the collection and payment of Ids debts. ' Their office was to secure any surplus which there might be after his debts were paid, and to apply it according to his will, in the, manner-required by the law of Cuba, where the testator was domiciled at the time of his death. The testator then appoints an executor to fulfil his will in the United States, where he had no- personal property. Now it does riot appear that either of his executors in Cuba or in the United States ever undertook to administer the testator’s estate,under his will.

Indeed, the reverse is to be taken for the fact, from the statement of the appellant. There can be, then, no personal property of the testator eo nomine in the United States over which a court ■ of equity in the United States could have any control for the payment of the legacy. Nor is this a suit against a party, properly representing the testator, for the application of .his personal property to the payment of the legacies. Between the appellant and the testator there is no official privity to give to him any of' those rights or imposing upon him any of the obligations of an executorial trust.

It is a suit against a defendant who is charged with having received large sums of money for which he is accountable, and which may be applied by a court of equity to the payment of the legacies bequeathed by the testator; and when that has been done, to the purposes of the rbsiduary clause of his will. He is also charged with having under his control the real estate of the testator without the sanction or authority of the executor who was appointed to administer it in the United States. The proofs in the record show it to be so.

In such a case such averments as are called for by the second and third objections are not necessary. If this were not so, the language of the residuary clause of the will would make such averments unnecessary. The testator has made bequests of money antecedently to that clause, without creating an express trust to pay them, and has blended the realty and personalty of his estáte together in one fund in the residuary clause. That of itself makes his bequests of money a charge upon the real estate, excluding from it the previous devises of lánd to Fenwick, Wallace, and to John and Fernando.Arredondo.

The rule in such a ease 'is, that where a testator gives several legacies, and then, without creating an express trust to pay them, makes a general residuary disposition of the whole estate, blending the realty and personalty together in one fund, the real estate will be charged with legacies, for in such a cáse, the “ residue ” can .only mean what remains after satisfying the previous gifts. Hill on Trustees, 508. Such is the settled law both in England and in the United States, though "cases do not often occur for its application.

Where one does occur, a legatee may sue to recover the legacy, without distinguishing in hi s'-bill the estate into the two kinds of realty and personalty, because 'it. is the manifest intention of the testator that both should be charged with the payment of the money legacies. Nor does this conflict at all with that principle of equity jurisprudence, declaring that generally, the personal estate of the testator is the first fund for the payment of debts and legacies. The rule has its exceptions, and this is one of them. Ambrey v. Middleton, 2 Eq. C. Abr. 479; Hassel v. Hassel, 2 Dick. 526; Brudenell v.

Boughton, 2 Atk. 268 ; Bench v. Biles, 4 Mad. 187 ; Cole v. Turner, 4 Russell, 376; Mirehouse v. Scaife. 2 M..& Cr. 695, 707-8 ; Edgell v. Haywood, 3 Atk. 358; Kidney v. Coussmaker, 1 Ves. Jr. 436; Nichols v. Postlethwaite, 2 Dall. 131; Hassanclever v. Tucker, 2 Binney, 525; Witman v. Norton, 6 Binn. 395; McLanahan v. Wyant, 1 Penn. 111; Adams v. Brackett, 5 Met. 280; Van Winkle v. Van Houten, 2 Green, Ch. 172; Downman v. Rust, 6 Rand. 587 ; Lupton v. Lupton, 2 Johns. Ch. Rep. 618, has been supposed to conflict with this rule, but it does not do so, for there it is said to be dependent upon the testator.

The same is the case of Dudley v. Andrews, in 8 Taunt.; and Paxson v. Potts, in 2 Green, Ch. 313 is a case in point with this case., We now proceed to the consideration of the fourth and fifth objections. It is denied in these points that there is any evidence to authorize , a decree in' favor Of the plaintiff, even if her bill had proper parties. We think differently.

The appellant is charged in'the bill with having obtained a decree in a court in- Florida, in behalf, of his wife, for sixty thousand acres of land, it being the real estate of her father, and that if was worth more than one. hundred thousand dollars. He is also charged with having received large, sums of money of the estate of the testator, and thak he has refused to pay the plaintiff’s legacy. He is not charged with having received the money eo nomine as the personal-estate left by the testator,-but as money received for which he is accountable to the' estate. The difference between the two is obvious.

He answers' that he had not received as yet, of the estate pf the testator, one cent of value. And when he answers concerning the real estate, he does not deny, but admits that he had obtained a decree in the State of Florida for the land of the testator. His answers are made with such reserve that they must be considered as having been meant to keep fróhi the plaintiff the discovery of- what her bill seeks to obtain. .

The natural and candid reply of the 'appellant, from his unofficial connection with the testator’s estate, should have been a disclosure of the condition of the real estate of the.testator — what had been done with it by himself ;■ what contracts had .been made by himself in respect to it; whether any. arrangement or bargain had been made for the sale of any part of it; whether any money had been received, on account of it, or was to be paid to. him.

He should have made also a frank disclosure how the personal estate of the testator had been administered by the parties and executors of the testator, if they had administered it at all, and how and to what extent he had received, or arranged to receive it, as a part of his wife’s interest in her father’s estate. This admission is found in his petition for a rehearing of this cause.

In that he says that he' has obtained a decree in the court of Florida, in behalf of his wife, for sixty-two thousand acres of the grant of land which had been made in 1817, to Arredondo & Son, containing two hundred and eighty-nine thousand six hundred and forty-five acres and five sevenths of an acre, of which the testator owned one third — that the grant had been confirmed and held to be valid by the Supreme Court of the United States; and that the grant had been located and surveyed under the authority of the government of the United States.

Now it does not matter, for the purposes of this case, (the ownerships of the testator to one third of that grant having been admitted and proved,) that the writ of partition obtained for if by the appellant in Florida is only interlocutory, in the sense that it is not final until the partition shall be made and returned to the court. The ownership of the land is determined by the decree of the Supreme Court of the United States, and the testator’s legacies have been made by him a charge upon it.

The ownership of the testator of a part of that land cannot be affected by any proceedings,- finished or unfinished, in the courts of Florida. Further,-there is proof in the record that the appellant has received for himself and his wife from Fernando M. Arredondo a conveyance for certain property which Betts, the testator, had conveyed to Arredondo and others in trust for the payment of sundry debts due at its date by the testator. Lewis, the appellant, obtains for his wife and for himself assignments from the creditors of the testator of their demands, and takes a reconveyance of the property.

What that property is, does not appear, but whatever it .may be it is liable, as well as the rest of the testator’s property, for the payment of the legacy. Again, the appellant admits, and the. proof is that he negotiated with the partners of the testator, for a conveyance of that portion of the Arredondo grant which was conveyed to the testator in behalf of his wife. It appears to have been made by Arredondo, but not to the extent of the testator’s interest.

On that account he rejected the deed tendered to him, and afterward obtained from ■the proper court in Florida a decree for 62,000 acres in behalf of his wife in that grant. We shall not pursue this part of the case further. We are satisfied that the merits of the controversy were not misunderstood by the learned judge in the court below.

It appears then, from the admissions and proofs in this case, that the appellant has substantially under his control a large property of the testator, which we think from his will that he meant to charge with the payment of the plaintiff's legacy, ex-eluding, as we have said, the devises of land to Fenwick, Wallace, and Fernando and Joseph Arredondo. We repeat that it is a charge upon the rest of the real as well as the personal property of the testator.

But he states that the real estate is in another sovereignty than that in which the plaintiff has sued, ,and is therefore out of the jurisdiction of this court to make any decree concerning it. It is true that the court cannot, in such a case, order the land to be sold for the payment of any decree which it may make in favor of the plaintiff. But it is not without power to'act efficiently to'cause the defendants to pay any such decree.

The land may be declared tó be charged with the payment of the legacy so as to compel the parties who claim the same as the property of the testator to set off or sell a part of it for such purpose. And we further say, if, in the proceedings of the court below hereafter, it shall appear that the appellant has received or made arrangements to receive any fund or money equitably belonging to the testator;, sufficient to pay her the plaintiff's legacy, that a decree may be made against him for application of it to that purpose. We do not consider it necessary to say more in the case.

We shall direct the judgment of the court below to be reversed, for the want of proper parties, and that the court shall allow them to be made parties, with such other amendments to be made by the plaintiff’ to her bill as the court may judge have not been put in issue by the bill with sufficient precision, and that a master shall be appointed to report upon the testator’s estate, and to take an account thereof. Order. This cause came on to be heard on the transcript of the record from the. District Court of the United States for the Northern District of Alabama, and was argued by counsel.

On consideration whereof it is now here ordered, adjudged, and decreed by this court, that the decree of the said District Court in this cause be, and the same is hereby, reversed with costs, for the want of proper parties, and that this cause be, and the same is hereby remanded .to the District Court, in order that proper parties may be made, and for further proceedings to be had therein, ■in conformity to tire opinion, of this court.