wards appear of which he had at first no notice." If the executor prove insolvent, there seems to be a distinction in regard to the claim of an unsatisfied legatee in this respect, whether there was originally a deficiency of assets, or whether the executor has wasted them. In the former case, a legatee, who has been paid more than his proportion, must refund to the others; while in the latter, even a residuary legatee is not liable, having received no more than he was entitled to; and a legatee is to refund only in cases where the payment at the time of making it. would amount to a devastavit. A legatee having his legacy only secured by a statute and mortgage, and not actually paid, has been decreed to abate. is An executor is not bound to pay a legacy without security to refund, in case the estate prove not sufficient to pay debts and legacies. And formerly, if the ecclesiastical court proceeded to compel an executor to pay a legacy without such a security, a prohibition was granted: though this is now out of use, as equity will decree a legatee to refund if the payment was not voluntary but by decree.' The exe-indre Blat cutor also may retain sufficient out of the assets to answer a contingent debt, as in the case of an outstanding unbroken covenant entered into by his tes Hodges v. Waddington, 2 Ch. Ca. 9. 2 Vent. 360. Newman v. Barton, 2 Ver. 205. Noell v. Robinson, 2 Vent. 358. 1 Ver. 94. Keylinge's case, 1 Eq. Ab. 239. Coppin v. Coppin, 2 P. W. 291. Contra 2 P.W. 447. Davis v. Davis, 8 Vin. Ab. 423. 1 Dick. 32. That an action will not lie, see 3 Bos. & P. 169. a1 Ch. Ca. 136. German v. Colston, 2 Ch. Rep. 137. Walcott v. Hall, 2 Bro. 305, Belt's ed. 1 Cox's P.W. 495; and see Partridge v. Gopp, Ambl. 596. • Grove v. Banson, 1 Ch. Ca. 148. 3 Ch. Rep. 65. 1 Ch. Ca. 137. 2 Freem. 134. 137. 141. 3 Salk. 223. Com. Dig. Admon. C. 3. • Bac. Ab. Leg. H. 1 Ver. 93. f 2 Vent. 358. 2 Ver. 205. 1 P. W. 495. Ambl. 161. Anon. 1 Atk. 491. 567 tator: but the residuary legatee will be entitled to this on giving a sufficient indemnity; or he may have it paid into court for its better security." Creditors may compel legatees to refund notwithfound to be sent standing the assets were originally sufficient. Thus find where a man devised some of his estates to his exefor adom Com of -ped tutors in trust for payment of his debts, and the in an executors renounced the executorship, and conveyed the the estates, subject to the trust, to the heir; who Jul Clement also got possession of the personal property, paid 1 My He 200. some legacies, and after eleven years became bankBut i'l Jawy-rupt: the Court decreed, that the creditors should techbe paid out of the legacies received by the legatees, Bichrane ce March on failure of the other funds. So where legacies Anfell 3. My were given to the four daughters of an executor, and Ca. 31. Miche bill, he, after a decree against him to account, advanced 500l. to each of them, two of which sums were voluntary gifts, and the other two marriage portions: the gifts to the unmarried daughters were held fraudulent and void, as within the statute; but they being legatees under the will, the sums were to be considered as paid to them in part of their legacies, and so much only to be refunded (the decree having directed a general abatement) as they had received beyond their proportion. Specific legacies also will be held assets for creditors, notwithstanding the assent of the executor." Simmons v. Bolland, 3 Mer. 547; and see Hawkins v. Day, Ambl. 160. 3 Mer. 555. Necton v. Sharpe, 1 Roll. Ab. 928. Cro. Eliz. 466. See Yare v.Harrison, 2 Cox, 377. 1 Ver. 94. 2 Vent. 358. Anon. 2 Freem. 137. Anon. 1 Ver. 162. d Hardwick v. Mynd, 1 Anstr.109. • 13 Eliz. C. 5. f Partridge v. Gopp, 1 Ed. 163. Ambl. 596. Touch. 454. I Ver. 455. Chamberlaine v. Chamberlaine, 2 Freem. 141. 1 Ch. Ca. 256. When a legatee has been abroad, and not heard of for a long time, he has been presumed to be dead, and payment ordered to those entitled to the legacy in that event, on security to refund in case the legatee should ever return. And where an executor appealed to the House of Lords from a decree for payment of a legacy, the legatee was allowed to have the money paid out of court to him, on giving security to refund, in case the decree should be reversed. And in another case a receiver has been ordered, on motion before a report of debts, to pay my 2 cen the executrix the arrears due on an annuity bequeathed to her, upon her stating by her answer, that all debts which had come to her knowledge had been satisfied, and undertaking to refund, if necessary. CHAPTER VII. OF SUITS FOR LEGACIES. . SECTION I. Of the Jurisdiction of different Courts. THE Cognizance of a legacy is said formerly to have belonged exclusively to the ecclesiastical courts, as having jurisdiction over all testamentary matters. And this seems the case now in some respects. Thus where a bill was filed by an executor, who had proved the will in the ecclesiastical court, to be relieved against a legacy supposed to have been interlined by the legatee; the bill was dismissed with costs, the remedy being in the latter court for equity has no power to decide on the validity of a will either of real or personal estate. So where a man made his will and appointed T. S. his executor, and afterwards by a codicil declared that R. (the plaintiff) should have the bond he owed the testator; and the executor proved the will, but not the codicil: it was adjudged that no relief could be had in equity till the codicil was proved, and that must be in the spiritual court.d b The jurisdiction of the ecclesiastical court is confined to gifts of goods and chattels : and if a man, Bac. Ab. Leg. M. Swinh. P. 1. S. 6. 3 Salk. 223. Het. 87. 5 T. R. 692. b Plume v. Beale, 1 P.W. 388. • 1 Ves. 287. 3 Mer. 171. d Took v. Fitz-John, Hard. 96. Yet it sometimes happens to the temporal courts to have to decide whether an instrument is testamentary or not. See Att. Gen. v. Jones, Appendix. therefore, devises his lands to be sold for payment of his legacies, the legatee can not sue in the spiritual court; for these legacies issuing out of land are not within its jurisdiction. But it is said that for a legacy devised out of a term of years the executor may be sued in the spiritual court, as it issues out of a chattel, which is testamentary. Where an executor gave a bond for payment of a legacy, and the legatee sued him in the spiritual court, it was held that a prohibition ought to go; for the executor by entering into a bond had extinguished the legacy, and made it a mere debt at common law. Dodderidge J. held indeed that the legatee might sue either in the ecclesiastical or temporal courts: but his decision was afterwards denied to be law.* It is said also that if a man covenant with J. S. to pay him 207., and afterwards by will devises to him 201. in discharge of the covenant, this is not a legacy suable in the spiritual court, but remains still a debt recoverable at common law. But if A. covenants with J. S. that he will pay 20l. apiece to B. C. and D. and afterwards devises 201. apiece to them in discharge of the covenant, these are good legacies, and recoverable in the spiritual court, the covenant being in this case with a stranger. If in a matter merely spiritual the ecclesiastical Jenk. 5 Cent. Ca..56. 2 Roll. Ab. 285. Paschall v. Keterich, Dyer, 151. Edwards Graves, Hob. 265; and see 2 Freem. 244. 3 Salk. 223. Palm. 120. Benl. 60. Contra Dyer, 264, 6. 1 Bulstr. 153. 1 Brownl. & Gold. 34. Prowe's Ca. 2 Roll. Ab. 285. Ramsey v. Ross, 1 Sid. 279; and see 1 Bulstr. 153. Love v. Naplesden, Cro. Jac. 279. Rosse v. Rosse, 1 Lev. 180. 2 Keb. 8. Bastard v. Stockwell, 2 Show. 50. • 2 Brownl. and Golds. 11. Goodwyn v. Goodwyn, Yelv. 38. Champue's Ca. Het. 166. d Gardner's Ca. 2 Roll. Rep. 160. • Cuband v. Dewsbury, 8 Mod 327. f Davies & Percie's Ca. 2 Leo. 119. |