Boyd ex rel. Boyd v. Boyd

Stephen, J.

delivered the opinion of the court.

William L. Boyd in the month of July, 1827, then being in a foreign country, and contemplating the possibility of his death before his arrival in the United States, addressed a letter to the defendant, (which has since been admitted to probate as a testamentary paper) in which is contained the following disposition of a part of his property. “Ten thousand dollars, of which you are already in possession of the greatest part, is to be at your disposition, and for your use free of interest during your natural life-time, but after your death, to be invested in bank stock, in the name of, and for account jointly and equally of the children of Jeremiah L. Boyd.” The event of his death, of which he seemed to have had an apprehension, did occur before he returned to this country. The object of the bill filed in this cause was to obtain the interposition of the court of Chancery, to have this fund placed in a state of security, so that the legatees in remainder might have the benefit of it after the termination of the interest for life therein given as above to his brother. The complainants are stated in the bill to be infants under the age of twenty-one years, and sue by the said Jeremiah L. Boyd as their father and guardian. To this bill no answer was filed; but a commission was issued under which two exhibits only were returned, that is to say, the above mentioned letter, and an account returned to the Orphans court of Baltimore coun *30 ty by the defendant, to whom letters of administration with the will annexed were granted. In this state of the proceedings, the case was submitted to the Chancellor, by whom the bill was dismissed with costs. The question to be decided by tliis court is, whether this decree of dismissal under the circumstances of the case was correct; or in other words, whether the complainants were entitled to the relief sought by their bill. It is to be observed in the first place, that there is a total absence of all testimony to establish several essential facts necessary to be proved in this case, to entitle the complainants to the relief prayed by their bill. In the first place, they claim to be relieved in the character of infants, suing by their father and guardian ; of the fact of their infancy at the time the suit was instituted, there is not the shadow of proof. They claim the interposition of the equitable powers of the court in the character and capacity of infants, suing by their father and guardian as their next friend, (for as such for the purposes of this suit we are disposed to consider him,) and yet have offered no evidence of their right or title to assume such a standing in court: without a proof of this fact, we do not think it was competent for them to sue in that capacity; and even if the charge of the fund being in danger or peril, in the hands of the legatee for life be sufficiently made, (of which doubts may be reasonably entertained, as there is no positive averment of that fact,) there is not a particle of evidence to establish or sustain that allegation. That such an averment ought to have been made and proved, under the particular circumstances of this case, to warrant the interference of a court of equity, to place the fund in a different situation from that directed by the testator, we think but little doubt can be entertained. The legatee for life wasHhe first object of his bounty; he manifestly reposed in him by the terms of his will the most unlimited confidence. The ten thousand dollars, the subject of the gift, were to be at hif disposition, and for his use, free of interest during his natural life; and unless the complainants adduced some *31 proof that this confidence had been misplaced, or was likely to be abused, and that their interest in remainder was about to bo placed in jeopardy, we do not think that a withdrawal of the fund from his hands, or compelling him to give security, would comport with the benevolent intentions of the testator towards him. The language of the will is peculiarly strong and emphatical; he was to have the use and disposition of the property free of interest during his life, and in the exercise of this right of limited ownership over it, secured to him by the will, we do not think he ought to be disturbed or controlled, unless the interests of those who were the secondary objects of the testator’s bounty manifestly required it. In Jer. Eq. Jr. 349, 350, it is said, “that formerly if personal estate was given to A for life, and afterwards to B, the latter or his personal representatives might in all cases have obtained a decree to compel the former to secure the same to him after his death, but that the present practice, in ordinary cases, where the property consists of specific chattels, is not to require the defendant to give security unless there is well founded apprehension of danger thereto, but merely to oblige him to make out, sign and deliver to the plaintiff, or into the possession of the court, an inventory thereof; when, however, the property is not of a specific character, the practice is somewhat different; for in the instance of a legacy payable at a future time, in which it is frequently and most usefully applied, this court will direct the amount thereof to be paid into court, whether the period for payment be fixed or uncertain, and will regulate the application of the proceeds in the mean time, in such manner that justice may be done between all the parties, and will thus interfere, although there should not be any danger of loss from the misconduct or misfortune of the defendant.” The authorities referred to in support of this principle, it is conceived, have no application to this case ; but were cases of legatees suing executors to have their legacies secured, and they were decreed to be secured, as declared in Ambler, 273, “ on the *32 general rule of the court;” but no case has been found, where, without an allegation of danger or misconduct, a legatee for life, as in this case, has been decreed to give security on “the application of those having an interest in remainder ; if there be such a case, it has escaped our researches.” So in 2 Kent’s Com. 285, Chancellor Kent, speaking upon the same subject says, “the interest of the party in remainder in chattels, is precarious, because another has an interest in possession; and chattels, by their very nature, are exposed to abuse, loss and destruction. It was understood to be the old rule in Chancery, that the person entitled in remainder could call for security from the tenant for life, that the property should be forthcoming at his decease ; but that practice has been overruled. Ld. Thurlow said, that the party entitled in remainder could call for exhibition of an inventory of the property, and which must be signed by the legatee for life, and deposited in the court; and that is all he is ordinarily entitled to. But it is admitted, that the security may still be required in a case of real danger that the property may be wasted, secreted or removed.” In Roper on Leg. 231, we find the following remarks, “it seems to have been the ancient practice of the court of Chancery to require the person entitled to the partial interest, to give security to or for the benefit of the legatee appointed to succeed him. The practice, however, became gradually altered as above stated, upon a conviction that requiring from the first legatee only an inventory of the property specifically bequeathed, was attended with more equal justice to both legatees. Besides, as the testator had thought proper to entrust the first legatee with a personal use of the articles for life, it was not for the court to destroy that confidence except under special circumstances. But if such circumstances be shown and proved, as would make it dangerous to trust the chattels in the hands of the first legatee, without taking a sufficient security, as in the instance of insolvency, such security will be required.” He then adds, that *33 Ld. Thurlow had ruled that there ought to be danger in order to require security. It is true that where the bequest to the legatee for life is of a sum of money, the reason for requiring security from the legatee for life, may be stronger than in the case of a bequest of specific chattels; but we do not think, that the court ought fo exercise an arbitrary power of requiring security in such a case, where the testator has required none, unless there be some evidence, that the responsibility of the legatee for life has been in some degree impaired or altered by a change of circumstances, since that confidence was reposed. In most, if not all the cases, where the security has been required, it has been where the fund was in the hands of the executors; in such cases the court will order the executors to give security, or in default to pay the legaey into bank, as was done in 2 Dickens. 568. So in Ambler's Rep. 273, the case was, a “bill for security of a legacy which the defendant, the executor, was to pay at the end of ten years from the death of the testator; and though no particular reasons were assigned, as wasting assets, or insolvency in defendant, yet decreed on the general rule of the court by Sir Thomas Clarke, master of the rolls, who sat in the absence of the lord chancellor. We think we should not conform to the plain and manifest intention of the testator in this case, by requiring the legatee for life to give security, unless there be some proof that the interests of the legatees in remainder are in danger, or in default thereof of ordering the fund to be taken out of his hands. It is true, he is in this case the administrator with the will annexed; but by his settlement with the Orphans court, the fund is placed in his hands as legatee, and in that capacity alone does he now hold it, and not in his representative character. During his life the entire and absolute interest in the money which is the subject of the bequest, is vested in him: he is clothed with no trust for the benefit of the complainants who have no right to have the fund invested for their use, until the expiration of his life estate. They have therefore no claim to the inter’ *34 position of this court, unless they can show that by suffering the fund to rémain in his hands, and in the language oí the will, at his disposition, their residuary interests will be put in jeopardy. In such a state of things, if they should be made satisfactorily to appear, it would, no doubt, be the duty of this court to take the necessary steps to carry the intentions of the testator fully and completely into effect. But we think that according to the well established principles of equity, the complainants are entitled to the discovery, as prayed by their bill, of all such sums of money or property as may have come to the hands of the defendant, and that for the purpose of obtaining such discovery, the defendant should be compelled to answer their bill of complaint; we also think that the balance of two thousand and ninety-two dollars and sixty-two cents, admitted to be in the hands of the defendant, and unappropriated to the use and benefit of the children of the said Jeremiah L. Boyd, as well as any other money or property belonging to the estate of the late William L. Boyd, exclusive of the ten thousand dollars, which may appear to have come to his hands in the manner specified in the will, and which may not be necessary for the payment of debts, ought to be decreed to be invested for the benefit of the children of said Jeremiah L. Boyd, according to the provisions of the will of the said William L. Boyd. If, moreover, the complainants have any merits in their case, and are entitled to an indemnity against loss or injury, by reason of actual or impending danger, they will have an opportunity of evincing it by an amendment of their proceedings, and by furnishing the necessary evidence of that fact. For the attainment of that object, should the security of their interests require it, this court will pass an order remanding the case to the court of Chancery, where such measures may be adopted by the complainants, as justice and equity may require.

CASE REMANDED TO THE COURT OF CHANCERY.