a party to the suit, especially if there be a doubt of the safety of the fund.1 § 841. The general rule, upon which courts of equity proceed in requiring money to be paid into court, is this, that the party, who is entitled to the fund, is also entitled to have it secured. And this rule is equally applicable to cases where the plaintiffs, seeking the payment, are solely entitled to the whole fund, and to cases where they have acquired such an interest in the whole fund, together with others, as entitles them, on their own behalf and the behalf of others, to have the sum secured in court.2 Now, this is precisely the case in what is commonly called a creditor's bill for the administration of an estate.3 § 842. And courts of equity will, in cases of this sort, not only order money to be paid into court, but they will also direct that papers and writings in the hands of executors and administrators shall be deposited with a master, for the benefit of those interested, unless there are other purposes, which require that they should be retained in the hands of the executors or administrators.1 § 843. The preceding remarks are principally (but not exclusively) applicable to cases of equitable property, whether the right of enjoyment thereof be present, future, or contingent. In regard to legal property, it is obvious that, where the right of enjoyment is present, the legal remedies will be generally found sufficient for the protection and vindication of that right. But where the right of enjoyment is future or contingent, the party entitled is often without any adequate remedy at law for any injury which he may in the mean time sustain by the loss, destruction, or deterioration of the property, in the hands of the party who is entitled to the present possession of it. Thus, for instance, if personal property should be given by a will to A. for life, and after his death to B., there is, as we have seen, at law, no remedy to secure the legacy to B., whether it be of specific chattels, or of a pecuniary nature.5 § 844. Indeed, by the ancient common law, there could in general be no future right of property, created in personal goods and 1 See Leigh v. Macaulay, 1 Younge & Coll. 260; Bogle v. Stewart, cited ibid. p. 265, 266; Bowsher v. Watkins, 1 Russ. & Mylne, 277; Gedge v. Trail, ibid. 281,. note. 2 Ibid.; Freeman v. Fairlie, 3 Meriv. 29, 30; Cruikshanks v. Robarts, 6 Mad. 104; Johnson v. Aston, 1 Sim. & Stu. 73; Rothwell v. Rothwell, 2 Sim. & Stu. 217; 3 Ante, § 543, 544, 546. 4 Freeman v. Fairlie, 3 Meriv. 29, 30; Clark v. Clark, 8 Paige, 152. 5 Ante, § 603; 1 Eq. Abridg. 360, pl. 4; Clark v. Clark, 8 Paige, 152. chattels, to take place in expectancy; for they were considered to be of so transitory a nature, and so liable to be lost, destroyed, or otherwise impaired, that future interests in them were not, in the law, treated as of any account.1 An exception was permitted, at an early period, as to goods and chattels given by will in remainder, after a bequest for life. But that was at first allowed only where the use of the goods or chattels, and not the goods or chattels themselves, was given to the first legatee; the property being supposed to continue all the time in the executor of the testator.2 That distinction has since been disregarded; and the limitation in remainder is now equally respected, whether the first legatee takes the use or the goods and chattels themselves for life.3 § 845. In all cases of this sort, where there is a future right of enjoyment of personal property, courts of equity will now interpose and grant relief upon a bill Quia timet, where there is any danger of loss or deterioration, or injury to it, in the hands of the party who is entitled to the present possession. We have already had occasion to take notice of the manner in which this remedial jurisdiction is applied in cases of legacies, whether pecuniary or specific, and whether vested or contingent. The same 1 2 Black. Comm. 398; 1 Eq. Abridg. pl. 4; Fearne on Conting. Rem. by Butler (7th edit.), p. 401 to 407; id. 413, 414 Ibid.; Hyde v. Parrat, 1 P. Will. 1, and cases there cited; Tissen v. Tissen, 1. P. Will. 502. Ibid.; Anon., 2 Freem. 145; id. 206; Hyde v. Parrat, 1 P. Will. 1, 6; Upwell v. Halsey, 1 P. Will. 651; Vachel v. Vachel, 1 Chan. Cas. 129, 130; Foley v. Burnell, 1 Bro. Chan. 274, 278; Co. Litt. 20 (a), Harg. note (5); Fearne on Conting. Rem. and Exec. Dev. (7th edit.), by Butler, p. 401 to 407; 2 Fonbl. Eq. B. 4, Pt. 1, ch. 1, § 4. This subject is discussed very much at large in Mr. Fearne's Essay on Contingent Remainders and Executory Devises, from p. 401 to 407 (7th edit.), by Butler. There is in the same work a very valuable discussion upon the rights of the tenant for life in the goods and chattels, and how far the same may be taken in execution by his creditors. The result of the whole discussion seems to be, that the creditors cannot subject the property to their claims beyond the rights of the tenant for life therein. Mr. Fearne seems to consider that the validity of executory dispositions of personal chattels (i.e., in remainder after a life-estate) was originally founded, and still rests, on the doctrine and interposition of courts of equity. But he admits, that in chattels real the right is recognized at law. Fearne on Conting. Rem. p. 412, 413 (7th edit.); Matthew Manning's case, 8 Co. 95; Lampet's case, 10 Co. 47; post, § 847, note. See also 2 Kent, Comm. Lect. 35, p. 352, 353; 1 Chitty, Gen. Pract. 101; Bacon, Abridg. Uses and Trusts, G. 2, p. 109 (Gwillim's edit.); Wright v. Cartwright, 1 Burr. 282; Clark v. Clark, 8 Paige, 152. [* See Smith's Will, in re, 20 Beavan, 197.] 4 See James v. Scott, 9 Ala. 579; Emmons v. Cairns, 2 Sandf. Ch. 369. [Where an uncle. had made a binding agreement that his nephew should have his property after his death, the nephew was held entitled to relief in life-time of uncle against a conveyance in fraud of the agreement. Van Duyne v. Vreeland, 1 Beasl. (N J.) 142.] 5 Ante, § 603, 604; 2 Fonbl. Eq. B. 4, doctrine is applied to cases of annuities, charged on the personal estate.1 § 845 a. Indeed, the doctrine may now be deemed well established, that the bequest of the use of the residue of the personal estate of the testator to a legatee for life, or for a shorter period, with a bequest over to other legatees, does not give the legatee for life, or for a shorter period, the right to the possession of the fund in the mean time. But the executor is entitled to retain the fund in his own hands, and to pay over the income thereof to the legatee for life, or for a shorter period, as it occurs from time to time. And, at all events, if he suffers the fund to go into the possession of such legatee, to enable him to enjoy the due use or income thereof, he is bound to take ample security for the safe return of the fund, at the termination of the particular estate therein. If the executor omits to take such security, he may become personally responsible for any loss accruing thereby.2 § 846. The same remedial justice will be applied to other cases, as well as to legacies and personal annuities. Thus, for instance, where a future interest in personal property is assigned by the owner to his creditors, the latter may come into a court of equity to have the property secured to their future use. On one occasion of this sort, Lord Hardwicke said, that nothing was better settled than that, "whenever a demand was made out of assets certainly due, but payable at a future time, the person entitled thereto might come against the executor to have it secured for his benefit, and set apart in the mean time, that he might not be obliged to pursue those assets through several hands. Nor is there any ground for the distinction taken between a legacy and a demand by contract. [So, where a life-interest in personal property is sold on execution against the owner of such life-estate, and the purchaser claims the absolute property, the remainder-men may, by a bill in equity, compel the purchaser to give security for the production of such property on the termination of his interest."] § 847. Upon the same ground, where, under marriage articles, Pt. 1, ch. 1, § 2, and note (d); 1 Mad. Ch. Pr. 178 to 181; Fearne on Conting. Rem. p. 413 (7th edit.), by Butler; id. 414; Covenhoven v. Shuler, 2 Paige, 123; Clark v. Clark, 8 Paige, 152. 1 Batten v. Earnley, 2 P. Will. 163; Slanning v. Style, 3 P. Will. 336, 337. 2 Clark v. Clark, 8 Paige, 152, 160; Covenhoven v. Shuler, 2 Paige, 122. 3 Johnson v. Mills, 1 Ves. 282, 283. 4 Ibid. 5 McDougal v. Armstrong, 6 Humph. 428; 6 Humph. 157; Bowling v. Bowling, 6 B. Monroe, 31. the plaintiff, in case she survived her husband, had a contingent interest in certain South Sea annuities, and a certain promissory note, which was specifically appointed for the payment of the same, to be allowed her, and the defendant had threatened to aliene the property and securities, on a bill Quia timet, a decree was made, that the defendant should give security to have the same forthcoming.1 § 848. So, where a party, seised of lands in fee, grants a rentcharge in fee, issuing thereout, and afterwards devises the lands to A. for life, with remainder to B. in fee, B. may maintain a bill 1 Flight . Cook, 2 Ves. 619; post, §955. This doctrine is discussed at large in Eq. Abridg. 360, pl. 4; and the following extract shows the gradual establishment of it: "But what seems most proper to be inquired into under this head, is the reason and practice of limiting remainders in personal goods or chattels, for they, in their own nature, seem incapable of such a limitation, because, being things transitory, and by many accidents subject to be lost, destroyed, or otherwise impaired, and also the exigencies of trade and commerce requiring a frequent circulation thereof, it would put a stop to all trading, and occasion perpetual suits and quarrels, if such limitations were generally tolerated and allowed. But yet, in last wills and testaments, such limitations over of personal goods or chattels have sometimes prevailed, especially where the first devisee had only the use or occupation thereof devised to him. For then, they held the property to continue in the executors of the testator, and that the first devisee had no power to alter or to take it from them. Yet in either case, if the first devisee did actually give, grant, or sell such personal goods or chattels, the judges would very rarely allow of actions to be brought by those in remainder for recovery thereof. Hence it came to pass, that it was a long while ere the judges of the common law could be prevailed on to have any regard for a devise over, even of a chattel real, or a term for years after an estate for life limited thereon; because the estate for life being in the eye of the law of greater regard and consideration than an estate for years, they thought he, who had it devised to him for life, had therein included all that the devisor had a power to dispose of. And though they have now gained that point upon the ancient common law, by establishing such remainders, and have thereby brought that branch out of the chancery (where they frequently helped the remainder-man, by allowing of bills to compel the first devisee to give security), yet it was at first introduced into the common law, under the new name of Executory Devise, and took all the sanction it has since received from thence, and not as a remainder (for which vide title Derise). But as to personal goods and chattels, the common law has provided no sufficient remedy for the devisee in the remainder of them, either during the life of the first devisee, or after his death; therefore the chancery seems to have taken that branch to themselves in lieu of the other, which they lost, and to allow of the same remedy for such devisee in remainder of personal goods and chattels, as they before did to the devisee in remainder of chattels real, or terms for years." See also Fearne on Conting. Rem. and Ex. Dev. p. 401 to 415, by Butler (7th edit.); ante, § 843, 844; Bacon, Abridg. Uses and Trusts, G. 2, by Gwillim. [So a husband who has a contingent interest in property placed in trust on separation, may, it seems, apply to equity to protect the fund against mismanagement of the trustees. Cranston v. Plumb, 54 Barb. (N. Y.) 59. Equity will not, on ground of apprehended desertion by husband, issue an injunction at suit of wife against his conveying away his property. Anshutz v. Anshutz, 1 C. E. Green, 162.] Quia timet, to compel A. to pay the arrears during his life, for fear that otherwise the whole would fall on his reversionary estate.1 And the like principle would apply, under like circumstances, to a legacy, payable in futuro, and chargeable on land, to compel the tenant for life to pay or secure a proportion of the legacy.2 § 849. Another case of the application of the remedial justice of courts of equity by a bill of Quia timet is in cases of sureties of debtors and others. We have already seen, that if a surety, after the debt has become due, has any apprehension of loss or injury from the delay of the creditor to enforce the debt against the principal debtor, he may file a bill of this sort to compel the debtor to discharge the debt or other obligation, for which the surety is responsible. Nay, it has been insisted (as we have also seen) that the surety may come into equity, and compel the creditor to sue the principal, and collect the debt from him in discharge of the surety, at least, if the latter will undertake to indemnify the creditor for the risk, delay, and expense of the suit. § 850. So, courts of equity will decree the specific performance of a general covenant to indemnify, although it sounds in damages only, upon the same principle that they will entertain a bill Quia timet, and this not only at the instance of the original covenantee, but of his executors and administrators. Thus, where a party had assigned several shares of the excise to A., and the latter covenanted to save the assignor harmless in respect to that assignment, and to stand in his place, touching the payments to the king, and other matters, and afterwards the king sued the assignor, for 1 Hayes v. Hayes, 1 Ch. Cas. 223. 2 Ibid. 3 Ante, § 327, 330, 639, 722, 729; Mitf. Eq. Pl. by Jeremy, p. 148; King v. Baldwin, 2 Johns. Ch. 561, 562; Hayes v. Ward, 4 Johns. 132; Nisbet v. Smith, 2 Bro. Ch. 581 (Belt's edit.), and note (5); Ranelaugh v. Hayes, 1 Vern. 190; Stephenson v. Taverners, 9 Gratt. 398; King v. Baldwin, 2 Johns. Ch. 561, 562; Hayes v. Ward, 4 Johns. Ch. 132. The cases of Rees v. Berrington, 2 Ves. Jr. 540, and Nesbit v. Smith, 2 Bro. Ch. 578, do not seem to establish this principle of relief against the creditor. But in the case of Wright v. Simpson (6 Ves. 734), Lord Eldon seems to admit, that the surety might have a right to compel the creditor to proceed against the debtor under some circumstances. But, then, in such a case, the surety is compellable to deposit the money in court for the payment of the creditor. So that, in fact, it is but the case of an indirect subrogation to the rights of the creditor, upon a virtual payment of the debt by such a deposit. See Hayes v. Ward, 4 Johns. Ch. 129 to 134, where this subject is much discussed, and the principles of the Roman law are fully stated. 4 Champion v. Brown, 6 Johns. Ch. 406; ante, § 730. [Griffin v. Orman, 9 Flor. 22. So one who has subscribed for stock in his own name, but in trust for another, may sue the cestui que trust in equity for indemnity against calls. Hemming ". Maddick, L. R. 7 Ch. App. 395.] |