encumbrancers; and then it will apply the funds, which are received, according to such priorities and equities, in case the encumbrancers entitled thereto shall make a seasonable application for the purpose.1

§ 838. So, where the tenants of particular estates for life, or in tail, neglect to keep down the interest due upon encumbrances upon the estates, courts of equity will appoint a receiver to receive the rents and profits, in order to keep down the interest; for this is but a mere act of justice to the encumbrancers, and also to those who may be otherwise interested in the estates. But here, again, it is to be remembered, that the court will not force encumbrancers to receive their interest; and therefore, if they would avail themselves of the privileges of receiving the interest, they must make a seasonable application for the purpose.3

§ 839. But although courts of equity will not appoint a receiver, except upon special grounds, justifying such an interference in the nature of a bill Quia timet; yet there are cases in which it will interpose, and require money to be paid into court by a party who stands in the relation of a trustee to the property, without any ground being laid to show that there has been any abuse or any danger to the fund. Thus, in cases of bills brought by creditors, or legatees, or distributees, against executors or administrators, for a settlement of the estate, if the executors or administrators, by their answers, admit assets in their hands, and the court takes upon itself a settlement of the estate, it will direct the assets to be paid into court.5

§ 840. The like doctrine has been applied to cases where an executor or administrator has lodged funds of the estate in the hands of a banker, avowedly as assets. In such cases, upon the application of a party in interest, as, for instance, of a creditor or

' Jeremy on Eq. Jurisd. B. 1, ch. 7, § 1, p. 250, 251; Davis v. Duke of Marlborough, 2 Swanst. 145, 146; 19 Ves. 153; 1 Swanst. 74.

* Jeremy on Eq. Jurisd. B. 1, ch. 7, § 1, p. 251, 252; Giffard v. Hart, 1 Sch.

& Lefr. 407, note; Bertie v. Lord Abingdon, 3 Meriv. 560.

3

* Ibid.; Gresley v. Adderly, 1 Swanst. 579, and note; Bertie v. Lord Abingdon, 3 Meriv. 560, 566, 567, 568.

Jeremy on Eq. Jurisd. 1, ch. 7, § 2, p. 253, 254; id. B. 3, ch. 2, § 2, p. 351, 2; ante, § 549.

Strange v. Harris, 3 Bro. Ch. 365; Blake v. Blake, 2 Sch. & Lefr. 26, 27; Yare v. Harrison, 2 Cox, 377; ante, § 543, 514, 546. See Mandeville, v. Mandeville, 8 Paige, 475.

a legatee, the banker will be directed to pay the money into court; for it is a rule in equity to follow trust-money whenever it may be found in the hands of any person who has not prima facie a right to hold it, and to order him to bring it into court. And this may be done, even without making the executor or administrator 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.4

§ 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

'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.

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; Orrok v. Binney, 1 Jac. 523.

3 Ante, § 543, 544, 546.

Freeman v. Fairlie, 3 Meriv. 29, 30; Clark v. Clark, 8 Paige, 152.

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.1

§ 844. Indeed, by the ancient common law, there could in general be no future right of property, created in personal goods and 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.2 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.3 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.4

1 Ante, § 603; 1 Eq. Abridg. 360, pl. 4; Clark v. Clark, 8 Paige, 152. 22 Black. Com. 398; 1 Eq. Abridg. pl. 4; Fearne on Conting. Rem. by Butler (7th edit.), p. 401 to 407; id. 413, 414.

3 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, 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.]

note.

§ 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.2 The same doctrine is applied to cases of annuities, charged on the personal estate.3

§ 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.1

§ 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.5 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,

1 See James v. Scott, 9 Ala. 579; Emmons v. Cairns, 2 Sandf. Ch. 369.

2 Ante, § 603, 604; 2 Fonbl. Eq. B. 4, 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.

3 Batten v. Earnley, 2 P. Will. 163; Slanning v. Style, 3 P. Will. 336, 337. Clark v. Clark, 8 Paige, 152, 160; Covenhoven v. Shuler, 2 Paige, 122. Johnson v. Mills, 1 Ves. 282, 283.

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.2]

§ 847. Upon the same ground, where, under marriage articles, the plaintiff, in case she survived her husband, had a contingent interest in certain South Sea annuities, and a certain promissory note, which were 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.3

1 Johnson v. Mills, 1 Ves. 282, 283.

* McDougal v. Armstrong, 6 Humph. 428; 6 Humph. 157; Bowling v. Bowling, 6 B. Monroe, 31.

8

Flight v. 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