7 U.S. 249 (1806), Silsby v. Young

Citation:7 U.S. 249, 2 L.Ed. 429
Case Date:February 13, 1806
Court:United States Supreme Court

Page 249

7 U.S. 249 (1806)

2 L.Ed. 429




United States Supreme Court.

February 13, 1806


THIS was a writ of error to the circuit court of the United States for the district of Georgia, to reverse the decree of that court, which dismissed the bill of the complainants, Sarah and Abigail Silsby.

Daniel Silsby, the brother of the complainants, and uncle of the defendant, Enoch Silsby, being seised and possessed

Page 250

of real and personal estate in England and in the state of Georgia, by his will, made in England, on the 11th of January, 1791, devised all his estate to his executor W. Gouthit, of London, in trust to turn the same into money, or securities for money, and after payment of his debts, to place out the surplus upon any public or private securities upon interest, or to invest it in the public funds.

He then bequeaths to his nephew, Enoch Silsby, 1,500l. sterling, to be paid to him at 21 years of age 'subject to the provisoes hereinafter mentioned,' and directed the interest to be paid to his guardian during his minority, to be applied to his maintenance and education.

He then directs his trustee to set apart 1,000l. sterling, and pay the interest thereof to his sister Sarah, during her life, for her sole and separate use and disposal, and in case of her death without issue, the principal was to be paid over to Enoch. A similar provision was made for his sister Abigail, the other complainant. And after bequeathing several other pecuniary legacies, he uses the following words: 'Provided always, and I do hereby expressly declare it to be my will and meaning, that in case the personal estate, and the produce arising from the real estate which I shall die seised and possessed of, shall not be sufficient to answer the said annuities and legacies herein before by me bequeathed, then, and in such case, I direct that the said annuities and legacies so by me given and bequeathed, shall not abate in proportion; but that the whole of such deficiency (if any there shall be) shall be deducted out of the said sum of one thousand five hundred pounds herein before by me bequeathed to my said nephew, Enoch Silsby.--And in case the personal estate, and the produce arising from the sale of the real estate, which I shall die seised and possessed of, shall be more than sufficient to answer and satisfy the several annuities or legacies herein before by me bequeathed, then, and in such case, I give and bequeath the surplus and residue which shall so exceed the purposes of this my will unto my nephew, Enoch Silsby, subject to such conditions as are herein before in this my will mentioned, and contained, touching and concerning the said sum of one thousand five hundred pounds sterling, so by me bequeathed as is herein before particularly mentioned.'

Page 251

The testator died at Ostend on his way to the United States, in February, 1791, leaving real and personal estate more than sufficient to pay all the debts and legacies, and which came to the hands of Gouthit, the executor, who paid all the debts and all the legacies, excepting those bequeathed to the complainants, and to the defendant, Enoch Silsby, and another legacy of 500l. to Daniel Silsby Curtain; but upon these he regularly paid the interest until the year 1796, when he became bankrupt.

The testator in his will mentions that he has in the hands of Harrison, Ansty and Co. of London, 5,000l. sterling, for which they allow him an interest of 5 per cent per annum.

Gouthit, in his letter to the complainants of Sept. 7, 1791, says, 'I have an excellent offer--a mortgage for 2,000l. which, if you think well, I will take it: for if I should at any time see well to place it any where else, by giving six months notice it would be paid. It is on an estate in Manchester, one of the greatest trading towns in this kingdom, and I can make you 5 per cent sterling on it, which will, you know, be 50l. a year for each of you, and you may have it paid as you please, but every six months I think would be best. The gentleman I mean to lend the money to is an old acquaintance of your brother's, and the estate is worth 5,000l. He does but want 2,000l. so you know nothing can be safer on earth, and I will have the deed so recited as to set forth the money is for your use, &c. This, I doubt not, but will meet your approbation. I have taken no money out of Harrison's hands, nor even interest, as I have no doubts of its safety, and the interest is going on.'

In answer to which the complainants write him on the 1st of Feb. 1792, 'Yours of September the 7th, you mention an old friend of our dear brother's wanting to hire the 2,000l. on mortgage. We would willingly oblige him, but cannot. We choose to let it remain just as our brother left it, and shall draw on you every six months for our interest.'

Page 252

Gouthit, before his bankruptcy, drew all the money out of the hands of Harrison, Ansty and Co. who were, and always have been, solvent, and in good credit. He never placed out in any specific funds, the 2,000l. from which the complainants' annuities were to arise.

On the 20th December, 1791, Gouthit sent a power of attorney to the defendant, Thomas Young, of Savannah, in Georgia, to collect the effects of the testator in that state, under which power Young obtained letters of administration with the will annexed, and took into his possession all the property there, some part of which he paid over to Gouthit. He also, in the year 1800, paid the legacy due to Daniel Silsby Curtain, and part of the 1,500l. legacy to Enoch Silsby. Considerable debts due to the estate are still outstanding in Georgia.

At the time of Gouthit's bankruptcy he was indebted to the estate of his testator in the sum of 5,380l. 12s. 2d. sterling, but the commissioners refused to admit him as executor of the testator to prove the same as a creditor of his own estate, whereupon the legatees, who had not been paid, petitioned the Lord Chancellor of England, that Gouthit might be so admitted to prove the debt for their benefits, which his Lordship decreed accordingly; and a dividend of 403l. 10s. 10d. sterling was received by the accountant-general of the court of chancery, but no part of that sum has been received by the complainants.

Enoch Silsby filed a bill in equity in the circuit court of the United States, for the district of Georgia, against Young, to compel him to account, and pay over to him, as residuary legatee, all the estate remaining in the hands of Young.

The complainants, Sarah and Abigail, filed the present bill in equity in the same court against both Thomas Young and Enoch Silsby, praying that Enoch's legacy of 1,500l. may abate in favour of their legacies, and that they may charge the residue of the estate for the balance, and have their 2,000l. placed out on good security according to the will, and that they may be paid the arrearages of their annuities out of the 1,500l. legacy,

Page 253

and out of the residue of the estate which came to the hands of Young.

The judge below (Judge Stephens) dismissed the present bill, and decreed, that Young should account to Enoch Silsby, upon the other bill in which Enoch Silsby was complainant, and Thomas Young defendant.


Morsell, for plaintiffs in error.

1st. If the plaintiffs have not discharged the general funds, they are entitled to the relief they pray for.

2d. They have not discharged those funds, nor relinquished their claim upon the whole estate of the testator.

It is true, that if one legatee, by diligence, has got his legacy, he shall not be obliged to refund, in case of a subsequent waste of effects by the executor; but that is only where all the legacies are payable at one time, and the legatees are in a capacity to compel the payment of their legacies.

In the present case, the principal of the legacies to the complainants, was not to be paid to them. The testator had directed his executor to set apart 2,000l. sterling, and to pay the interest only, to the complainants during their lives. It was, therefore, a bequest of an annuity merely. There was nothing for the complainants to do. They had no right to designate the funds, which should be set apart by the executor, in whom alone was vested the right and the power to make the appropriation. By the words of the will, if the estate should not be sufficient to pay all the legacies, yet the complainants were not to suffer. But the defendant, Young, having paid some of the legacies in full, has thereby admitted assets for all. The complainants having regularly received their annuities to the year 1796, when Gouthit, the executor, became bankrupt, had no right to complain, and had no reason to press for a specific appropriation of the money, from which their annuities were to be paid. They knew that the whole estate stood chargeable to them

Page 254

until their 2,000l. were set apart, according to the directions of the will. The residuary legatee cannot avail himself of a breach of trust by the executor, to the injury of the complainants, who claim under the same trust. The executor was not bound by the will to give any security, nor could the complainants call upon him therefor.

The time at which the estate should be insufficient to pay all the legacies, so as to enable the complainants to call upon the residuary legatee, is not designated by the will in express terms; but it is clear, that the time of the death of the testator, was not the time he contemplated; because, after directing his executor to sell his real estate, he says, 'in case the personal estate, and the produce arising from the real estate, which I shall die seised and possessed of, shall not be sufficient,' &c....

To continue reading