Adams against Spalding and others, 12 Conn. 350

Church, J. I do not understand, that any claim is made, in this case, that a technical breach of the condition of the probate bond had not been occasioned, by reason of the neglect of the executors to exhibit an inventory and settle their administration accounts according to law and the condition of their bond ; for which neglect, so far as the claimants in this action were interested, there was no excuse. Edwards v. White & al. ante 28.

The court charged the jury, that the plaintiff could sustain this action, for the benefit of the legatees interested, for their proportion of the sum of 3000 dollars, bequeathed and belonging to the children of Rufus Spalding, deceased. Was not this instruction correct? The defendants insist, that no action at law will lie against an executor for the recovery of a legacy, unless there has been an express promise to pay it, founded upon the consideration of assets.

It is quite too late to discuss this point: it has been too frequently and firmly settled, in this State, adversely to the defendant’s claim to be again drawn in question. Lamb v. Smith. 1 Root 429. Spalding v. Spalding. 2 Root, 271. Goodwin v. Chaffee, 4 Conn. Rep. 163. Knapp v. Hanford, 6 Conn. Rep. 170. 7 Conn. Rep. 132. By these cases, it has been settled, that an executor, having assets for the payment of legacies, is liable in an action at law upon an implied promise to pay them. We think the decision in these cases to be the result of familiar common law principles.

If A has in his hands, as executor, money for the payment of a legacy due to B, why does not the law imply his promise to pay it as much as if he had received the same amount of money to B’s use in any other capacity ? A contrary doctrine is holden in England; the result, however, rather of policy than principle. In the case of Deeks & ux. v. Strutt, 5 Term Rep. 690. Lord Kenyon places his opinion upon what he supposes would be the great inconvenience of a legal jurisdiction over legacies.

He seems to be enamoured with what he is pleased to call the admirable system, which has been founded in a court of equity on this subject, and which, he fears, will fall to the ground, if a court of law could enforce the payment of a legacy. In this State, we have no such system to jeopardise, and no policy, which, we believe, will conflict with principle in this matter.

The only plausible reason urged in the English courts for exclusive equity jurisdiction, in regard to the recovery of legacies, is, that courts of law can impose no terms upon legatees or others, who may be entitled to receive payment of a legacy. And the case is put of a legacy given to a wife ; and if the husband could recover it at law, no provision could be made for the wife or family. The same objection may be made against a recovery by the husband of any debt or demand due to his wife.

It is not a matter of necessity that terms should be imposed upon parties, before they are entitled to receive legacies ; and whenever it becomes necessary that a court of equity should interfere, for this purpose or for any other, an injunction to stay proceedings at law may always be had, until a court of chancery can settle and adjust all the equities of the case. The possibility of such a necessity should not oust a court of law of its entire jurisdiction.

But the question heie is, not whether an action of assump-sit will lie to recover a legacy upon a promise, either express or implied, but whether an action upon a probate bond can be sustained for that purpose. This remedy, in our judgment, is peculiarly appropriate. It certainly is the duty of an executor having assets to pay the legacies ordered by the will: for what has he executed his bond, or why does the law require it of him, unless it be to furnish an appropriate remedy against him and his sureties for every neglect of his official duty ?

One of the conditions of his bond, is, that he will discharge the office and duty of executor of the will and execute the same, and settle the estate according to its provisions; a condition, which he certainly disregards, if he, having a sufficiency of assets, refuses to pay the legacies. He need be placed in no jeopardy : the statute enables him to secure himself against contingencies, by requiring of devisees and legatees a bond to indemnify him against all future claims of creditors. Stat. 205.

There is nothing in this will, connected with the facts of the case, which, in our opinion, renders the interference of a court of equity necessary. It was contended, that a court of law could not adjust the claims of the executors for compensation. There is no more difficulty in doing this, than in fixing the compensation of any other agent, in an action at law, who is -entitled to reasonable pay for his services.

At any rate, the defendants might and should have settled with the court of probate their administration accounts ; and in that way, the amount of compensation could well have been settled, and the amount in this action deducted from the plaintiff’s demand. The court charged the jury, that the children of Rufus Spalding, the claimants in this action, were entitled to receive their proportion of the unexpended fund, remaining in the hands of the defendants, although some of the testator’s brothers were yet living. There is no error in this opinion.

The testator directs, that the rents and profits of bis estate remaining after payment of certain legacies, shall be annually paid to his sister, Mary Cady, and his three brothers, Ebenezcr, Rufus and Luther, one quarter to each, during the term of their natural lives, and during the life of the survivor of them.

And all the residue of his estate he bequeaths to the children of such sister and brothers, viz. one quarter part to the children of each of his said sister and brothers, and such as shall legally represent them ; and in case of the death of either of his said sister and brothers, then the children of such deceased one to be entitled to their quarter, &c.

We cannot, from the language of this will, nor from any circumstances disclosed in the case, perceive any intention in the testator to create an accumulating fund to await the death of all his brothers and his sister before its distribution; nor any intention that either of the surviving brothers or the sister should be entitled to any greater share, during his or her life, than one quarter of the rents and profits. But on the contrary, we think it manifest, that his purpose was, to assure immediately to the children of any dying brother or sister the share which such brother or sister had been enjoying.

His brothers and sister were the first objects of the testator’s bounty, and their children his ultimate objects ; but the children representing their parents were intended to come in for their shares, as their parents’ claim should successively become extinct by death. The father of the present claimants, Rufus Spalding, having died, these, his children, are now entitled to their proportion of the one quarter intended for them. The court further instructed the jury, that the executors were not justified in retaining any part of the said sum of 12,000 dollars in their hands.

The executors attempt to justify such retention, by the fact that some of the sons of the brothers of the deceased, and also Asa Spalding Ladd, are yet liv-. ing, and may become entitled to the legacies of 200 dollars, each, bequeathed to them, by acquiring a liberal education at some American college.

If there are no sons of such brothers now living, who can acquire such an education, can any such be born hereafter ? if the ages of the surviving brothers did not impose a physical impossibility of such an event, yet such are the number and nature of the contingencies upon which it must depend, that it would be trifling with the administration of justice to permit ourselves to be influenced by the possibility of such an occurrence. There are but two surviving brothers of the testator, TLbenezer, a widower, aged 86 years, and Luther, aged 75, whose wife is 61 years old.

If Luther should survive his wife, will either Ebeyiezer or himself contract marriage 1 If they shall, will a child of siTth marriage be bom to them, in their very advanced age ? Will it be a son, and receive a liberal education, and arrive at the age of 22 years? We cannot conceive it possible, that the testator intended that any of the legacies bequeathed, should depend upon contingencies so remote and improbable. Besides, we very much doubt whether the testator intended these legacies for any after-born children of his brothers. The language of the will does not support such an intention.

The brothers of the testator then had sons. These sons he knew; and they were the objects of his bounty; and we cannot believe he contemplated such a delay in the payment of his legacies and the settlement of his estate, as would be produced, by a waiting for the birth of children until some future, remote and indefinite period, and then 22 years longer.

If this construction of the will be the true one, then the executors are not justified in retaining any moneys in their hands for the benefit of any nephews of the testator to be born hereafter, nor for the benefit of Charles Spalding, who, though now alive and 25 years old, was born after the death of the testator. But still it is claimed, that there are are nephews still living, born during the life time of the testator, who may yet receive a liberal education at some of our colleges, and come in hereafter to claim the legacies of 200 dollars. Bela B.

Spalding, one of these nephews, is 53 years old ; and Luther P. Spalding, another nephew, is 35 years old; and both have wives and children. Asa Spalding Ladd, another legatee of the same character, is 50 years of age. The testator knew, what every body else knows, that the colleges of this country had been founded and endowed for the education of young men, and not of old ones; and he intended these legacies to aid his young nephews in obtaining a liberal education, according to the usual and well known course of American colleges.

And we hold, what the testator never supposed would be doubted, that these legacies, intended for the education of his nephews, not having been required for that purpose, until after the legatees became settled in business and considerably advanced in years, had been waived and relinquished, and had fallen into the residuum of the estate. The instruction given to the jury, in this part of the case, therefore, was very clearly correct. We feel equally confident, that the direction given to. the jury on the question of*interest, in this case, was proper.

The testator directed, that the fund remaining in the hands of the executors should remain on interest; and it may well be presumed, that it has. And without any such direction, the duty of the executors would have been to render this fund productive. But it is not intimated, that the accruing interest, or any portion of it, was intended as a bounty to the executors. As a matter of law, neither an executor nor any other trustee, may make profits to themselves of a trust fund ; they are accountable for all.

To whom, then, shall interest be paid, where no other provision is made, unless it be to the person entitled by law to the principal? To this sum, in such case, interest is incident, as a matter of law. We do not advise a new trial. The other Judges were of the same opinion, except Huntington, J., who gave no opinion. New trial not to be granted.