UNITED STATES SUPREME COURT DECISIONS ON-LINE

D. devised all his estate to his executor in trust to convert the same into money, and after payment of debts to invest the surplus in the funds or put it out on interest. He then bequeaths £1,500 to E. to be paid at the age of twenty-one, subject to the subsequent provisos, and directs £1,000 to be set apart and the interest to be paid to S. during her life, and after bequeathing other pecuniary legacies, says,

"provided that in case the personal estate and the produce arising from the real estate which I shall die seized and possessed of shall not be sufficient to answer the said annuities and legacies hereinbefore by me bequeathed, then and in such case I direct that the said annuities and legacies so by me bequeathed shall not abate in proportion, but the whole of such deficiency (if any there shall be) shall be deducted out of the £1,500 bequeathed to E.,"

whom he also makes his residuary legatee.

The estate was more than sufficient, at the time of the testator's death, to pay all debts, annuities, and legacies, but afterwards, by the bankruptcy of the executor, became insufficient. Held that E.'s legacy of £1,500 should be liable to S.'s annuity.

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 seized and possessed clubjuris

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of real and personal estate in England and in the State of Georgia, by his will, made in England, on 11 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, £1,500 sterling, to be paid to him at 21 years of age "subject to the provisos 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 £1,000 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 seized 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 £1,500 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 seized 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 £1,500 sterling, so by me bequeathed as is herein before particularly mentioned. "

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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 £500 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 & Co., of London, £5,000 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 £2,000 -- 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 £50 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 £5,000. He does but want £2,000, 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 wrote him on 1 Feb., 1792,

"Yours of September 7, you mention an old friend of our dear brother's wanting to hire the £2,000 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. "

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

On 20 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 £1,500 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 £5,380 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 £403 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 £1,500 may abate in favor of their legacies, and that they may charge the residue of the estate for the balance, and have their £2,000 placed out on good security according to the will, and that they may be paid the arrearages of their annuities out of the £1,500 legacy, clubjuris

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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. clubjuris

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