Silsby V. Silsby. *255 *256 should abate equally with the sons. 'But the Lord Chancellor reversed the decree, and directed, that the daughter should have her full legacy, and that the abatement should be out of those of the sons only. *It is unimportant to the complainants by what means the assets became insufficient, inasmuch as the testator intended to secure their annuities at all events. It was the testator, and not the complainants, who trusted the executor. The legacy of 1,500l. to Enoch is (as far as the complainants are concerned) to be considered as a residuary legacy; because, by the express words of the will, it is placed upon the same ground; and nothing can be taken by the residuary legatee, until all the debts and particular legacies are paid. 2 Ld. Raym. 1320. Spendlove v. Aldrich. The case of Orr v. Kaines, 2 Ves. 193. shows, that it is an established rule, that if an executor pays one legatee in full, he thereby admits assets to pay all the others. 2d. The complainants have not, by any act, waived their right to come upon the whole estate, nor forfeited that right by any laches. The letter of February, 1792, is a mere refusal to sanction any thing not required or directed by the will. The complainants say, that they choose to let it (i. e. the 2,000l. provided by their testator as a fund for the payment of their annuities) remain just as the testator left it. It is not even a hint that they meant to rely on the money in the hands of Harrison, Ansty & Co. and if it was, yet they had no power to prevent the executor from drawing those funds out of the hands of that house; nor did it have that effect, for Gouthit did actually withdraw them, and apply them to other purposes. The complainants were not bound to call upon the executor to designate the funds set apart for the payment of their annuities; and as long as they were regularly paid, they had no cause to suspect the solvency and the honesty of Gouthit, on whom their testator had chosen to bestow his confidence. They cannot, therefore, be charged with laches, *Harper, for the defendant, Enoch Silsby, contended, 1st. That as the estate was sufficient at the time of the testator's death, and became insufficient long afterwards, by the default of the executor, the contingency has not happened upon which the will renders Enoch Silsby's legacy of 1,5004. liable solely to abatement; and that he is, therefore, entitled to receive the whole; or, at most, is liable only to an abatement, pro rata, with the other legatees. 2d. That the complainants, by their acts, made their election to depend on the estate in England, and on the security of Gouthit, and, therefore, cannot resort to the residue in this country. 3d. That if their acts do not amount to such an election as will preclude them from resorting to the residue, yet their laches, in omitting to take steps for compelling the executor to place out their legacies on public or private securities, according to the will, ought to have that effect. The complainants were of full age at the time of making the will. The defendant, Enoch Silsby, was an infant for a long time after the testator's death. There is a limitation over to Enoch of the principal sum of the complainants' legacies. By their conduct he has lost the reversion of the 2,000l. and of 1,200l. the surplus. It is not just that the loss should fall upon him who was then an infant. The claim of the complainants would sweep every thing from Enoch, who was the peculiar object of the testator's bounty. The defendant, Young, must take the consequences of his own act, if he has paid any of the legatees in full. He is solvent, and having, by his act, admitted assets, the complainants cannot resort to the residuary legatee. But the testator died possessed of estate enough to pay all the debts and legacies; and, therefore, Enoch's legacy of 1,500l. by the terms of the will, is not bound to abate. *If the testator meant to give the complainants their legacies at all events, he would have said so. He knew that he had enough to pay all at the time of making his will, but accidents might happen before his death, and it was to guard against those only that he provided for the case of insufficiency. There is a great difference between this case and that of Marsh v. Evans, cited from 1 P. Wms. 668. In that case the proviso was, that "if his assets should Silsby V. Silsby. * 257 V. Silsby. *258 fall short." The word assets is technical, and refers to the estate after his death. The legacies were not payable until his children should be of full age, and the whole expression evidently alludes to a state of things which might happen at any time between his death and the time when the legacies would become not payable. But in the present case, the testator meant to refer to the time of his death; if there should then be an insufficiency to pay all, Enoch's 1,500/. should abate, but not otherwise. The anonymous case in 1 P. Wms. 495. establishes the rule, that if one legatee, by diligence, obtains his legacy, and the executor having had sufficient assets, wastes them and occasions a deficiency, the legatee shall not be obliged to refund. In the case of Walcot v. Hall, 23d February, 1788, Supplement to Viner, vol. 3. p. 432. the distinction is taken between a deficiency at the time of the death, and that which arises afterwards. The case of Orr v. Kaines, 2 Ves. 194. shows that where there was an original sufficiency of assets, and the executor remains solvent, the legatees shall not refund. As Young is solvent, the complainants cannot oblige the other legatees to refund, unless there was an origi nal deficiency of assets. *2d. As to the acts of the complainants. Their letter to Gouthit prevented the 2,000l. from being put out on security. It is, therefore, the same thing, in effect, as if the executor had, at their request, put it out on a security which had failed. But they have actually made choice of the security. They knew the money was in the hands of Harrison, Ansty & Co. and in their letter they say, "we choose to let it remain just as our brother left it;" that is, in the hands of Harrison, Ansty & Co. After having done that, Gouthit remained their agent for the purpose of drawing and remitting the interest. They were the only legatees who were of age, and capable of assenting to such a disposition of their legacies. The other legatees were infants. If the complainants had directed the 2,000l. to remain in the hands of the executor, and he had failed, they must have sustained the loss. By refusing his offer to place it out on mortgage, they have, in effect, assented to his retaining it, and he having failed, they must submit to the consequence. If they had assented to his offer, the money would have been safe, and the defendant, Enoch, would not have lost his chance of the reversion. If the executor himself had placed it out on security, and set it apart, according to the directions of the will, and it had been lost, they could never have called upon the residuary legatee. 3d. But the complainants have been guilty of laches, in not compelling the executor to place out the money on security. They had early notice of the will, and took no measures to have their legacies secured, until the failure of Gouthit, which was six years after the testator's death. By this neglect, Enoch has lost his reversion. He was a minor, and, therefore, no laches can be imputed to him. P. B. Key, for the defendants. 1st. As to Young. *He considers himself as a stakeholder only. If the complainants are entitled to be first paid, he holds for them; if not, then he holds for the defendant, Enoch. If there is an original deficiency of assets, and one legatee receives the whole of his legacy, the others may compel him to refund, and the executor will not be obliged to pay the other legatees in full. So, if an executor pay one in full, by mistake, it shall not preclude him from alleging a defect of assets. There is no case in which an executor has been thus precluded, by a payment in full to one of the legatees. The case from 2 Ves. 194. was where the executor had not only paid one in full, but had neglected to make an inventory. 2d. As to the defendant, Enoch Silsby. The general principle is admitted, that specific pecuniary legatees are to be first paid; and that, if there is not sufficient to pay the whole, they must abate in proportion. This will appears to have been drawn by able counsel. If the testator meant that the particular legacies should have been paid out of the whole estate, he Silsby V. Silsby. * 259 would have said so; but he has directed a particular fund to be set apart, out of which the annuities of the complainants were to be paid. If this fund had been set apart, as directed by the will, the defendant, Enoch, would have been entitled to the residue, and exonerated from all liability to refund. The complainants were the only legatees of competent age to compel the executor thus to set apart the fund; or, at least, they were the only legatees to whom laches can be imputed. They not only neglected to do this, but by their letter prevented the executor from doing it. The residuum was to abate upon the same contingency only upon which the legacy of 1,500l. was to abate; and that contingency never happened. "The per sonal estate, and the produce arising from the real estate, of which the testator died seised and possessed,” *was "sufficient to answer all the debts, annuities, and legacies." If the time of the testator's death was not the time when the sufficiency of the estate was to be ascertained, yet, if at any time afterwards, the personal estate, and the produce of the real estate, which came to the hands of the executor, was sufficient, the right of the complainants to come upon Enoch's legacy of 1,500l. and upon the residuum, ceased. It was then incumbent upon the complainants to look to their own legacies, and get them properly secured; if they did not, they gave personal credit to the executor, and if he wasted the estate, and became insolvent, they must suffer the loss. They had a right to require security in chancery. It is a part of the regular chancery jurisdiction to compel such security, and no suggestion of a devastavit was necessary. The funds in England were more than sufficient to pay all the debts and legacies. It was not necessary to wait for the settlement of the estate in Georgia. Young, the administrator in Georgia, never had a sufficiency of assets; and, therefore, his payment of one legacy in full, if that is the fact, cannot bind him to pay all the rest. Martin, in reply. The question is, whether if upon an account against the defendants, any funds shall be found in their hands, we are entitled to recover. |