The Chancellor.
William Berry, late of Paterson, Essex county, died in 1826, leaving a considerable real and personal estate, and leaving a last will and testament, of which he had constituted the defendants executors. They proved the will, and possessed themselves of the real and personal estate, to the amount of several thousand dollars. By the will, the testator gave to Robert Fields one hundred dollars. He then gave all his estate to his brothers, Daniel and John Berry; his late wife’s brothers, William, John and James Sumpter; his nephew, Jonathan Berry, son of James Berry, deceased; John Sumpter and James Sumpter, sons of John Sumpter, deceased — in equal [50]*50shares; subject to the payment of certain legacies, viz.: to the" four daughters of his late brother, Samuel Berry, deceased, twenty-five dollars each;• to Mary, the daughter of his late brother, James Berry, deceased, and to the daughter of his late brother, David Berry, deceased, fifty dollars each ; and to Nancy Chorton, twenty-five dollars.- All the legatees reside in England, and' this suit is brought by Walter King, who- claims as an assignee for a valuable consideration,- the right and interest of all of them' except Robert Fields and Nancy Chorton.
The complainant charges in his bill, that the defendants neglected to render an'account of the estate, until required by a citation from the orphan’s court of the county of Essex. That they rendered separate and final accounts in 1831, which accounts are erroneous in divers particulars. That they have not charged themselves- with the whole amount of the estate that came to their hands, nor with all the interest that accrued on it. He prays, among other things; for an account to be taken in this court, and that the defendants may be decreed-’ to pay to him what, upon taking such account, shall be found justly due him.-
The defendants do not admit the legality of the claim, but call on the complainant to establish it to the satisfaction of the court. They deny all charges of malfeasance, and insist that-they are not bound to account for more interest than they have severally charged themselves with in their accounts as filed in the orphan’s court; which accounts they allege to be correct, after excepting two errors, which they have particularized in their answers. And they assert their willingness to pay over the moneys1 to the person or persons legally entitled to receive it, under the direction of the court.
The first matter to be settled, is the right of the complainant to recover, and to recover in this suit as he has brought it,' and as it is now presented to the court. The amount of the recovery, and the principles on which the executors are to be charged, are-subjects that may claim our consideration hereafter.
The complainant is not a legatee himself. His rights are all derived from the assignments, and he must make it out, that the [51]*51persons who have executed the assignments are the persons named in the will as the legatees. This he has done with sufficient certainty. Peter Berry, one of the witnesses, was a nephew of the testator. He came to this country from England about ten years ago, and was acquainted with all the legatees, whose interests are-claimed by the complainant. He testifies to their existence at that time, and to the places where they lived. He does net fully prove the hand-writing of the assignors, so as perfectly to identify them in that way, and this is not indispensable. The persons who have signed the instruments are persons of the same name, all known to the subscribing; witnesses, and therefore not fictitious; ail, with a single exception, residing in the places mentioned'by the witness; and in the absence of all proof, or even reasonable presumption to the contrary, it is not to be supposed that a deception has been practised, and that these persons are other or different from those who are named as legatees. So gross and extensive a fraud is not within the compass of probability, if it be at all possible.
The, eomplaiuant is next bound to show a valid and sufficient assignment,. There can be no question as to the form as well ao the substance of the instalments. They are sufficient to pass the entire interest of the legatees. The consideration appears to be small, compared with the amount of the property j but if the parties were capable to contract and make the conveyance, they can scarcely hope to invalidate their own deeds, on the ground that they have -made a disadvantageous contract. The executors have no concern with the amount paid for the shares by the purchaser. They are not to be the judges of its reasonableness or sufficiency. And if they pay according to the direction of the assignments, it is not perceived that the act can be called in question, or that they can be placed in any jeopardy.
The complainant is also bound to present his case .properly before the court; in other words, he must bring in all proper parties who have interests that may be affected by the decree, so that •the decree may settle the rights of all. It is objected in this case, that the legatees themselves are not parties, and of course will [52]*52not be bound by any decree that may be made. Is it necessary that they should be parties? If it is, the objection is not too late, and the cause must stand over until they can be brought in. The general rule is as has been stated — that all persons either legally or beneficially interested in the subject matter and result of a suit, must be made parties: Coop. Eq. Pl. 34. And in some instances, where the whole beneficial interest was in one person, and nothing but a naked legal right left remaining iu the other, the court has been strict in enforcing the rule. Thus, when a bill was filed by the assignee of a judgment, to receive the rents and profits of lands bound by the judgment, the court decided that the assignor should have been made a party — he having the legal title, and the complainant having only an equitable right: Cathcart v. Lewis, 1 Ves. jr. 463. So in Ray v. Fenwick, 3 Bro. C. C. 25, the assignee of a bond filed a bill for .a ne exeat against the obligor; and lord Thurlow refused to order the writ, and dismissed the suit, because the representative of the assignor was not made a party. It is to be observed, how.ever, that judgments and bonds aré choses in action of a strictly legal .character. According to the common law, the legal right could not b.e divested in .any way by assignment or transfer. All that could be passed was an equitable right, or what is commonly called a beneficial interest; and the holder of this interest could not cancel the judgment, nor in any way affect the strict legal right of the assignor. Hence, if a suit in equity was brought against the beneficial holder, it was necessary to bring. in the holder of the legal title. His interest was considered as separate, distinct and existing, and if not brought in, the decree would be inconclusive, and no protection to the defendant.
But the rule has not been uniform. In Brace v. Harrington, (which was the case of a bond,) 2 Atk, 235, lord Hardwicke said it was not necessary in every case of assignment, where all the equitable interest is assigned over, to make a person who has the legal interest a party. In that case the bond sought to be recovered had lain in the hands of the assignee, twenty-two years after the assignment, without apy demand having been made, It was [53]
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The Chancellor.
William Berry, late of Paterson, Essex county, died in 1826, leaving a considerable real and personal estate, and leaving a last will and testament, of which he had constituted the defendants executors. They proved the will, and possessed themselves of the real and personal estate, to the amount of several thousand dollars. By the will, the testator gave to Robert Fields one hundred dollars. He then gave all his estate to his brothers, Daniel and John Berry; his late wife’s brothers, William, John and James Sumpter; his nephew, Jonathan Berry, son of James Berry, deceased; John Sumpter and James Sumpter, sons of John Sumpter, deceased — in equal [50]*50shares; subject to the payment of certain legacies, viz.: to the" four daughters of his late brother, Samuel Berry, deceased, twenty-five dollars each;• to Mary, the daughter of his late brother, James Berry, deceased, and to the daughter of his late brother, David Berry, deceased, fifty dollars each ; and to Nancy Chorton, twenty-five dollars.- All the legatees reside in England, and' this suit is brought by Walter King, who- claims as an assignee for a valuable consideration,- the right and interest of all of them' except Robert Fields and Nancy Chorton.
The complainant charges in his bill, that the defendants neglected to render an'account of the estate, until required by a citation from the orphan’s court of the county of Essex. That they rendered separate and final accounts in 1831, which accounts are erroneous in divers particulars. That they have not charged themselves- with the whole amount of the estate that came to their hands, nor with all the interest that accrued on it. He prays, among other things; for an account to be taken in this court, and that the defendants may be decreed-’ to pay to him what, upon taking such account, shall be found justly due him.-
The defendants do not admit the legality of the claim, but call on the complainant to establish it to the satisfaction of the court. They deny all charges of malfeasance, and insist that-they are not bound to account for more interest than they have severally charged themselves with in their accounts as filed in the orphan’s court; which accounts they allege to be correct, after excepting two errors, which they have particularized in their answers. And they assert their willingness to pay over the moneys1 to the person or persons legally entitled to receive it, under the direction of the court.
The first matter to be settled, is the right of the complainant to recover, and to recover in this suit as he has brought it,' and as it is now presented to the court. The amount of the recovery, and the principles on which the executors are to be charged, are-subjects that may claim our consideration hereafter.
The complainant is not a legatee himself. His rights are all derived from the assignments, and he must make it out, that the [51]*51persons who have executed the assignments are the persons named in the will as the legatees. This he has done with sufficient certainty. Peter Berry, one of the witnesses, was a nephew of the testator. He came to this country from England about ten years ago, and was acquainted with all the legatees, whose interests are-claimed by the complainant. He testifies to their existence at that time, and to the places where they lived. He does net fully prove the hand-writing of the assignors, so as perfectly to identify them in that way, and this is not indispensable. The persons who have signed the instruments are persons of the same name, all known to the subscribing; witnesses, and therefore not fictitious; ail, with a single exception, residing in the places mentioned'by the witness; and in the absence of all proof, or even reasonable presumption to the contrary, it is not to be supposed that a deception has been practised, and that these persons are other or different from those who are named as legatees. So gross and extensive a fraud is not within the compass of probability, if it be at all possible.
The, eomplaiuant is next bound to show a valid and sufficient assignment,. There can be no question as to the form as well ao the substance of the instalments. They are sufficient to pass the entire interest of the legatees. The consideration appears to be small, compared with the amount of the property j but if the parties were capable to contract and make the conveyance, they can scarcely hope to invalidate their own deeds, on the ground that they have -made a disadvantageous contract. The executors have no concern with the amount paid for the shares by the purchaser. They are not to be the judges of its reasonableness or sufficiency. And if they pay according to the direction of the assignments, it is not perceived that the act can be called in question, or that they can be placed in any jeopardy.
The complainant is also bound to present his case .properly before the court; in other words, he must bring in all proper parties who have interests that may be affected by the decree, so that •the decree may settle the rights of all. It is objected in this case, that the legatees themselves are not parties, and of course will [52]*52not be bound by any decree that may be made. Is it necessary that they should be parties? If it is, the objection is not too late, and the cause must stand over until they can be brought in. The general rule is as has been stated — that all persons either legally or beneficially interested in the subject matter and result of a suit, must be made parties: Coop. Eq. Pl. 34. And in some instances, where the whole beneficial interest was in one person, and nothing but a naked legal right left remaining iu the other, the court has been strict in enforcing the rule. Thus, when a bill was filed by the assignee of a judgment, to receive the rents and profits of lands bound by the judgment, the court decided that the assignor should have been made a party — he having the legal title, and the complainant having only an equitable right: Cathcart v. Lewis, 1 Ves. jr. 463. So in Ray v. Fenwick, 3 Bro. C. C. 25, the assignee of a bond filed a bill for .a ne exeat against the obligor; and lord Thurlow refused to order the writ, and dismissed the suit, because the representative of the assignor was not made a party. It is to be observed, how.ever, that judgments and bonds aré choses in action of a strictly legal .character. According to the common law, the legal right could not b.e divested in .any way by assignment or transfer. All that could be passed was an equitable right, or what is commonly called a beneficial interest; and the holder of this interest could not cancel the judgment, nor in any way affect the strict legal right of the assignor. Hence, if a suit in equity was brought against the beneficial holder, it was necessary to bring. in the holder of the legal title. His interest was considered as separate, distinct and existing, and if not brought in, the decree would be inconclusive, and no protection to the defendant.
But the rule has not been uniform. In Brace v. Harrington, (which was the case of a bond,) 2 Atk, 235, lord Hardwicke said it was not necessary in every case of assignment, where all the equitable interest is assigned over, to make a person who has the legal interest a party. In that case the bond sought to be recovered had lain in the hands of the assignee, twenty-two years after the assignment, without apy demand having been made, It was [53]*53•calculated to excite doubt and suspicion, and for that reason the cause was ordered to stand over for the representative of the assignor to be made a party; for it is possible, says the court, that the assignor may have been paid, and it is therefore necessary to have an answer as to that particular, either from him or his representative.
It would seem from this, that the practice of the court has not been entirely uniform on this subject; and indeed, according •to some modern authorities, the question of necessary parties is always more or less a matter of discretion, depending on convenience: Ex'rs of Brasher v. Van Cortlandt, 2 John. Chan. R. 245; Wendell v. Van Rensselaer, 1 John. Chan. R. 350.
The ground for making the assignor of a right or chose in action a party is, that he has, notwithstanding the tiansfer, a distinct and subsisting right, not capable of being assigned over, and that can only be extinguished by a decree of this court. Where the reason of the thing does not apply, the rule ceases. Hence bankrupts are not made parties to suits brought either by •or against the assignees; their whole right, legal and equitable, being vested in the assignees by statute : Coop. Eq. 27 ; 3 P. W. 311; De Golls v. Ward, in notes. Now if, in the present case, the whole interest and right of the legatees vested in the assignee, the complainant, by the assignment, the assignors need not, and ought not, to be parties to the bill. They were legatees under a will. Their rights were not common law rights. Originally they appertained to the spiritual courts, and were dealt with according to the course of the civil law. For a long series of years legacies have been suable in the court of chancery ; and that court has now, if it has not always had, a concurrent jurisdiction with the spiritual court. That they may now be sued for in the common law courts, by the statute, does not alter their essential character. They do not ^change their nature to suit the law of the court — but the court changes its law, and accommodates itself to their peculiar character. When ¡suits for legacies were first prosecuted in courts of chancery, they [54]*54were obliged to adopt the law of the spiritual forums; and so it has been with the courts of common law : 3 Ridg. P. C. 243.
The character of the right, then, is not. altered by making it cognizable, under certain circumstances, in the common law courts. It remains essentially an equitable interest. It is not barred by the statute of limitation ; at least, such was the law, and such it is still in England. I am aware that chancellor Kent, in one of his last cases, held, that since a remedy at law was given here by statute to recover legacies and distributative shares, the statute of limitations would be a good bar to a suit for a legacy, even in equity: Kane v. Bloodgood, 7 John. Chan. R. 90. This was going further than bad ever been adventured before, and overturned a number of his previous decisions. But if the principle should be adopted as expedient for the quieting of controversy, I do not think the essential and original character of a legacy would be so changed, as that, after the assignment of it by the legatee, a strict legal right would still be left in the assignor.
The claim to a legacy is essentially an equitable, and not a legal claim. That it is an assignable interest, cannot be doubted ; and the assignment, if it passes any thing, must pass the whole right of the assignor.
I am of opinion, therefore, that, tlie assignments being legal and sufficient, it was not necessary to make the assignors parties to this suit.
As to the-difficulty suggested by the defendants’ counsel, that the subject matter of this suit, so far as an account is required, is now litigating in another tribunal, and that the defendants are liable to be disturbed in another court, it can present no serious obstacle to the progress of this suit. The orphan’s court and the court of chancery have, to a certain extent, in reference to the accounts of executors, administrators and guardians, concurrent jurisdiction ; .but in all cases where a party seeks relief on grounds peculiarly of chancery jurisdiction, and which call for the exercise of chancery powers, the jurisdiction of this court is paramount. Here the complainant seeks not only for an account, [55]*55but to compel the executors to give security ; to lestrain them from the further calling in or receiving certain portions of the estate ; and to have a receiver appointed, if need be. All these matters belong specially to this court, if a decree is made here, the court will take care that the party is not harassed in the other tribunal.
The complainant, then, is entitled to recover upon the case be has exhibited. The amount must be ascertained according to the usual course and practice of the court. There must be a reference to a master, to take and state an account upon proper and equitable principles. The complainant has slated fully his views on the subject, and especially as it regards the amount of interest with which he considers the defendants chargeable : and prays that the court would now settle the principles on which certain parts of the account should be stated'. But without the accounts before me, and without the benefit of the testimony that must be taken in the investigation of the claim, I feel unable to give any satisfactory directions. The leading principles of the court establishing and regulating the responsibilities and duties of executors and trustees, are generally known. Their application depends entirely upon the facts of each case. If the report of the master is not satisfactory, it can be re-examined and corrected, if need be, by the court, on exceptions taken.
When the account shall have been taken and settled, and before a final decree is made in the cause, it will be a proper time for the court to consider the claim of the defendants to protection or indemnity of some kind. They ought not to be left in jeopardy ; and the court will feel disposed to secure them in any way not inconsistent with the rights of the complainant., or its own duty aud practice.
Let it be referred to a master to take an account, &c„