Lewis v. Darling. 15 H.

had not been paid, did not show any reason for proceeding against the residuary legatee instead of the executor.

Thereupon the complainant filed her amended bill, stating that "no one, to her knowledge or belief, had ever taken out letters testamentary or of administration upon the estate of Betts, either in the State of Alabama or elsewhere," and "that no person had ever paid

the legacy, or any part thereof," and that no person but de[*4] fendant had ever received any part of Betts's estate, and called upon defendant to state, whether any one had taken out letters upon the estate.

Defendant then puts in his second answer, stating that he was a defendant in a suit in chancery in Florida, brought against him and others by John H. Brush and others, and that before the termination of said suit, a copy of the will of Betts was filed by him as part of the evidence of his claim, in right of his wife. The original will was in Spanish, and he obtained a Spanish copy of it from the proper depository in the city of Havana. He believed that a Spanish copy and an English translation were filed among the papers in that suit. That the suit was not tried in the regular way but the parties entered into a covenant or agreement, which was put upon the records of the court of Florida, and was, by consent, made the decree of that court. That the will was not adjudicated upon;- cannot say on his oath that the exhibit A is a correct translation of the original · but it does not differ from the English copy filed in the Florida case. To the third interrogatory, he states, that he has received no property, lands, or moneys from the estate of Betts. That a decree in the Florida case had been entered by consent of parties, and that the decree gave to his wife a large amount of land- but there was no decree in favor of him and the decree in favor of his wife was not a final one-needing the report of commissioners appointed to make partition of the land before it became a final decree. Cannot say what is the value of the land decreed to his wife, because the decree is not final, and awaits the further action of the court. He admits the exhibit B to the bill to be a true copy of the answer filed by him in the Florida case. States that Joseph Fenwick did reside in Alabama, and believes he is dead; and that he does not know or believe that any person has taken out letters of administration upon the estate of Betts in the United States. He does not know whether there was or was not administration in Cuba - and has no information on the subject; and suggesting the want of parties, prays to De dismissed.

No exception to this answer appears on record; but on the 23d November, 1847, the court decide the answer to be insufficient, and

Lewis v. Darling. 16 H.

also that the bill was defective in not alleging sufficient matters for equitable relief, in not showing that the executors had not paid the legacy, and that not being shown in alleging no reasons for proceeding against the residuary legatee instead of the executor.

Leave to amend was granted; but instead of so doing, the complainant filed her replication, averring the sufficiency of her bill, the insufficiency of the answer, and traversing the statements of the latter.

Johnson and R. Johnson, Jr., for the appellant.

Butler, contrà.

[

'7 ]

* WAYNE, J., 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 represents, 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 [* 8] sufficient personal property to pay the legacy.

4. That the effect of the plaintiff's replication being an admission 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 has such an interest in the controversy, that no decree can be

Lewis v. Darling. 16 H.

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, and 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 domicile at the time of his death. Or it may depend upon the 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 suffi

ciently obvious in this case for the application of the rule. [*9] 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 both upon 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. It 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 suppo

Lewis v. Darling. 16 H.

sition that the legacy, in this instance, cannot be charged upon the real estate of the testator, until 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 soever, that may belong or appertain to me, I name 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 have 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. He 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." He 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 Son, and that it would appear from the accounts, books, and other papers of the company. And he further declares 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 his 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 [ 10 ] 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 not 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 ap pellant. There can be, then, no personal property of the testator co 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 de

Lewis v. Darling. 16 H.

fendant 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 residuary 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 estate 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 land to Fenwick, Wallace, and to John and Fernando Arredondo.

The rule in such a case 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 case, 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, the legatee may sue to recover the legacy, without distinguishing in his bill the estate into the two kinds of [*11] 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. Ab. 479; Hassel v. Hassel, 2 Dick. 527; 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; Whitman 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