The spiritual court and court of chancery are the courts where legacies are sued for, the latter exercising a concurrent jurisdiction with the former, as incident to some other species of relief prayed by the complainant: as to compel the executor to account for the testator's effects, or to assent to the legacy or the like; and a bill may be filed in the court of exchequer for a legacy (23).

In some cases an executor may be compelled to give security for paying a legacy; as where 1000l. was devised to a person to be paid at the age of twenty-one years; and upon a bill exhibited against the executor, suggesting a devastavit, and praying that he might give security to pay the legacy when due, it was agreed accordingly. So where the testator devised 800%. to an infant, to be paid by his execu tor when the infant should attain the age of twenty-one years, and the infant by his guardian exhibited a bill that b 3 Black. Com. 98.,

< 1 Cha. Ca. 121.

departing with it to any person, though she should consent on her examination. Fraser v. Baillie, 1 Bro. C. C. 518. Richards v. Chambers, 10 Ves. 580. And it seems that a wife cannot by consent in court dispose in favour of her husband, of her reversionary interest in personalty bequeathed to her by will. Pickard v. Roberts, 3 Madd. 384. But see Howard v. Damiani, 2 Jac. & Walk. 458. n. As to the right of a wife to a provision out of her property as against the assignees of her husband, who has become a bankrupt, see Whitm. B. L. 127.

(23) An action will not lie at law against an executor for a pecuniary legacy payable out of the general funds of the testator, although assets be averred in the declaration; for the law will not, from the mere circumstance of the executor's being possessed of assets, imply a promise by him to pay such legacy. Deeks v. Strutt, 5 T. R. 690. Mayor of Southampton v. Graves, 8 T. R. 593. But where the bequest is of a specific chattel, and the executor assents to the bequest, the legal interest in the chattel vests absolutely in the legatee, and he may maintain an action at law for it, not only against a stranger, but against the executor. Doe d. Lord Say & Sele v. Guy, 3 East, 120.

the executor might give security for the payment of the money, it was accordingly decreed d. And if a person possessed of a lease for years, devise that his executors, out of the profits thereof, shall pay to every one of his daughters 201. at their full age; the executor may be sued in the spiritual court, to put in security to pay the legacies; and as this being to issue out of a chattel, no prohibition shall be granted. But where a legacy was given to a grand-daughter to be paid at twenty-one, or marriage: and if she died before either of those contingencies happened, then to go over to another: Lord Chancellor Hardwicke was of opinion, that as the legacy was devised over, nothing vested in the granddaughter till one of the contingencies should happen and therefore she was not entitled to have it secured f.

However, this opinion of Lord Hardwicke is controverted in a late case, wherein a legacy of 5000l. being given to a female infant to be paid at twenty-one, or marriage, with interest at 47. per cent. (but if she died before, to sink into the residue), it was ordered to be paid into the bank, in order to secure the legacy, and, if greater interest made, that it should be for the benefit of the child. This cause was heard before the master of the rolls, and from his honor's decree there was an appeal to the lord chancellor.

Lord Chancellor. The rule seems to have varied, different opinions having obtained at different times. Lord Hardwicke seems sometimes to have thought that money to be raised should not be raised till the time of payment. Palmer and Mason, 1 Atk. 505.— Heath and Perry, 3 Atk. 101., are both strong cases to shew his opinion to be so.— Ferrand and Prentice, before Sir Thomas Clarke: E. Prentice gave to the plaintiff 200l. to be paid ten years after her death. Upon bill filed to admit assets and give security, or to pay the money into the bank, it was decreed that the executor should do so, and that he should have the interest in the mean time, and at the end of the ten years the principal should be paid to the plaintiff. -Walker and Cooke: Le

gacy left to one to be paid at twenty-four, the plaintiff being twelve, the father filed a bill that the legacy might be invested in the funds; and decreed so, though it was declared, that the plaintiff was not entitled to the money till twenty-four.Johnson and De la Cruze, 2000l. left to the testator's daughter at twenty-one, in default to her child; if no child, to Mills; bill to secure the fund. The court said a party so circumstanced might come here to have part of the personal estate secured for the legacy. In Price and Taylor, the same was said to be the course of the court. These cases go to prove, that where a legacy is to be so paid, it must be secured. I do not see a distinction as to its being contingent or merely future. If a legacy be payable at twenty-one, and the child dies, his executor cannot claim till the time when the child would have arrived at twenty-one, if the legacy does not bear interest; but if it be with interest he may claim immediately. If it bears a less interest than the utmost use, the executor hath a right to the use of the money paying the modified interest. Chester and Painter, 2 P. Wms., 335. Here I do not incline to alter the decree at the Rolls. The legacy is to the child, payable at twenty-one, with 4l. per cent. interest, which is the ordinary interest given by the court. If the interest were severed from the principal, I must order that to be secured. Giving interest even at 21. per cent. vests the principal. Whether a legacy be payable at a fixed or a contingent future day, the effect is the same. I must secure the interest of the fund. If the interest was severed as an allowance, I must secure a fund equal to it. The Master of the Rolls has done right in ordering it to be laid out in the funds, But if it should produce more than 4l. per cent., who is to have the surplus? I may order it to be paid to the executor. But should it produce less, can I order the executor to make it up? No. think, therefore, the produce must be to the use of the infant 8,

I

Where the testator devised lands, and also ordered his personal estate to be laid out in land, and settled to uses

Green v. Pigot, 1 Bro. Cha. Rep. 103.

under which the defendant took an estate for life only, with remainder over, and appointed the plaintiff executor. The defendant possessed himself of the personal estate, and amongst other things, of securities for money. The plaintiff filed his bill, and the securities were ordered to be deposited. Some of the debtors being desirous of taking up their securities. Motion was made to the court, on the part of the plaintiff, that the securities might be delivered up to him, in order to receive the monies secured by them; which was slightly opposed by defendant's counsel; but it was ordered and that the plaintiff should deposit the money paid in the bank h (24).

CHAPTER VI.

OF DEVISES AND BEQUESTS TO CHARITABLE USES.

CONCERNING devises and bequests to charitable uses, it was mentioned in a former chapter that, upon the construction of the statute 9 Geo. II. c. 36., a.devise of land to trustees to be turned into money, and the money to be laid out in a charitable use, is not good; likewise, that a devise of a mortgage or term of years, to be laid out in a charity, is void; and if money be given to be laid out in lands, this is expressly Jones v. Jones, 3 Bro. Cha. Rep. 80.

(24) According to the present practice, wherever a legacy is payable at a future period, the legatee, without any suggestion of an abuse of the trust by the executor, or that the fund is in danger, has a right to call upon the executor to have it divided from the bulk of the estate, and secured and appropriated for his benefit, as well where it is contingent as where it is vested. Carey v. Askew, 2 Bro. C. C. 58. S.C. 1 Cox, 241. Cooper v. Douglas, 2 Bro. C. C. 232. Annuitants are likewise entitled to the same equity, and to compel the executor to set apart a sufficient fund for the regular payment of their annuities. Slanning v. Style, 3 P. Wms. 335.

within the act; but that money given generally is not. Оп those points we shall now enlarge, and proceed to treat on such devises and bequests as are void and within the meaning of the statute, and such as are not: on money being devised to a charitable use; and conclude the chapter with treating on superstitious uses. And as most of the cases pertaining hereto are in the name of the Attorney General, we shall here, for the reader's information, drop a few words concerning the reason of this, which is, that the King, as parens patriæ, the parent of the country, has the general superintendance of all charities; wherefore it is always considered, that it is he who erects, the subject is only instrumental; and thus his Attorney General is the guardian of their rights, and relator of their claims, as well as their grievances, before the court of chancery; so that the usual course of application to the court to establish charities, is by bill of information in the name of the Attorney General (1).

As to such devises and bequests as are void and within the meaning of the statute. Where a devise was of lands to be sold and the residue of the money after payment of debts, &c. to a charity, it was held void by the statute. So where there was a devise of lands to be sold, and part of the money arising by sale to go to charitable uses; and the residue of the money was given over; it was held that so much as was given in mortmain should lapse to the heir, and not go to the * Attorney General v. Lord Weymouth, Ambler's Rep. 20.

(1) See 52 Geo. 3. c. 101., and 59 Geo. 3. c. 91., by which a summary remedy by petition signed by the Attorney or Solicitor General is, in certain cases, provided, in case of abuses of trusts created for charitable purposes. It seems that an order made upon a petition for relief under these statutes, which has not been signed by the Attorney or Solicitor General, is a nullity. Attorney General v. Green, 1 Jac. & Walk. 303. But to all suits for charitable funds, the Attorney General is a necessary party, except where a legacy is given to the officer of an established institution, as part of its general funds. Wellbeloved v. Jones, 1 Simons & Stuart, 40.