Williamson, C.
The important question involved in this cause is, whether Archibald Bryce, the testator, had, at the time of his death, an interest in the Lodi print works, and in the business carried on there in the name of Robert Rennie, which the complainants are entitled to have ap[458]*458propriated for the payment of their annuities. There isjno one interested adversely to the claim of the complainants except Robert Rennie himself. The title to the real estate attached to these works is in Rennie; the business to which the works were appropriated was carried on in his name, as the proprietor and owner; he received all the profits; it is out of his real estate and out of these profits that the complainants claim to have their annuities secured. The annuities and several legacies given in the will are expressly charged upon all the real and personal estate of the testator. The substance and whole amount of the will is this — it gives all the estate, real and personal, of the testator to Robert Rennie, subject to the payment of the debts and legacies. Rennie denies that he has any property which is subject to the payment of the complainants’ claims. If the answer is untrue in this respect, and the complainants have established the fact, that he has assets in his hands to pay their annuities, the court may decree him personally liable, notwithstanding there is no specific charge in the bill to that effect. There can be no doubt, if the defendant admits assets, a decree may be made against him personally, without a specific prayer for such relief. Woodgate v. Field, 2 Hare 211; Rogers v. Soulten, 2 Keen 598. With more propriety may such a decree be made where the defendant denies assets, and his denial is proved to be false. In Rogers v. Soulten, the defendant admitted the receipt of ¿£2500, and stated the amount of debts, which left a balance more than sufficient to pay the legacies. But he, in terms, denied assets, and made an explanation of that denial. The explanation was not considered such as to warrant the denial, and a decree was made against the defendant personally.
In this case Rennie admits that he has in his possession the property designated in the will to pay the annuities; but he denies that it is liable to be appropriated for such purpose, alleging that the testator had no interest in it. He does not deny its sufficiency for the purpose, but de[459]*459fends himself, and resists the claim of the bill, solely on the ground that the testator had no interest in the Lodi printworks or its business. If his allegation is unfounded, there is no good reason why a decree should not be made against him personally. The allegations of the bill are quite sufficient to justify a specific prayer for that purpose. If the bill had contained such a prayer, I do not see how the defendant could have varied his answer to meet the claim for such relief. He is not prejudiced by being deprived of the opportunity of meeting, by his answer, the allegations and charges which constitute the proper foundation for such a decree.
Have the complainants established the material allegagation upon which their case rests — that Archibald Bryce, at the time of his death, was jointly interested in the “ business or concerns of the Lodi print works” with the defendant, Robert Rennie ? The answer denies that the testator had any interest, at the time of his "death or at any other time, either directly or indirectly, with the defendant in those works.
The Lodi print works are located in the county of Bergen. There is real estate attached to the works, embracing a large number of acres of land, upon which are suitable buildings and improvements for carrying on the kind of business designated by the name of the works. The title to the real estate is in the name of the defendant, Rennie, and has been since the year 1844. While the title has been in him, the business has been conducted in his name. He has been the ostensible proprietor and owner of the works and of the business. During this period, up to the time of his death, the testator resided in the city of New York. He had charge of the office and books of the Lodi works in the city. Ostensibly he was the chief clerk. His connection with the works was notorious and acknowledged. This appears from the evidence on the part of the defendant as well as of the complainants. For a number of years, to the time when the defendant became proprietor of [460]*460the works, the works had been owned by the testator and James Rennie, the brother of the defendant. The testator and James Rennie carried on the business as partners, the testator occupying the same position in the city as he did afterwards when the works and business were carried on in the name of the defendant. With this relationship in business existing between the testator and the defendant, on the twenty-first day of March, 1846, the testator executed his will. The will commences with the following introduction to its provisions: “ I, Archibald Bryce, aged sixty years and upwards, being desirous to provide for the maintenance and comfort of my sisters, herein after named, and for the payment of the legacies herein after specified, and at the same time to prevent any interruption or interference of or with the business or concerns of the Lodi print works, wherein I am jointly interested and concerned with Robert Rennie, of Lodi, in the state of New Jersey, and also to prevent an injudicious sale of my undivided third of the property at Bull’s ferry, in the said state of New Jersey, known as the Leake estate, which two properties compose the bulk of my estate, do make, publish, and declare,” &e. The testator then gives the annuities to his sisters, two of the complainants, a legacy to Andrew Macfarlane, one of the defendants, and a legacy to Mrs. Bradly. He disposes of his household furniture, provides for the payment of his funeral expenses, and then gives the “ residue and remainder of his property, real and personal, of every kind and description,” to Robert Rennie. He then declares, “ I expressly charge the aforesaid specified legacies and annuities upon all my property, real and personal; but I expressly direct, that while and so long as the said Robert Rennie shall pay the legacies and annuities aforesaid he shall not be interrupted nor brought to account, nor hindered nor molested in any way in carrying on the said business and works as usual.” Peter Rennie, a brother of the defendant, is one of the witnesses to the will. The. testator died on the 29th of March, 1849.
[461]*461On the 4th of April, 1849, the defendant addressed a letter to Magdalene Bryce, one of the complainants. After expressing his sympathies upon the occasion of her brother’s death, and giving an account of his last sickness and his burial, and recurring to the fact, that the deceased and himself had been associated together for nearly seventeen years without the least interruption of their friendly intercourse, he writes as follows : “ He left a will, leaving me his residuary legatee to all his interest in the Lodi print works or any other property he might die possessed of. He gives a legacy of $5000 to his landlady, Mrs. Bradly, $5000 to his friend Andrew Macfarlane, ¿£200 sterling per annum to each of his sisters, during their lifetime, to be paid in half-yearly instalments, the first instalment in six months from his death; his gold watch and wearing apparel to his friend Mr. James Bradly, the husband of his landlady; Mr. Andrew Macfarlane and the writer of this to be his executors.”
Here we have the declaration in writing of the testator, made on the 21st of March, 18-16, that he was the joint owner with the defendant of the Lodi print works and of the business connected therewith. We have this writing, on or about the 29th of March, 1849, made known to, and committed into the hands of the defendant, as the trustee of the testator, to assert and maintain that right in part for the benefit of the complainants in this suit. We have the declaration of the defendant in writing, made to the complainants, endorsing and acknowledging the claim of joint ownership made by the testator. The defendant now denies that joint ownership, and in his answer to a hill brought against him to enforce the claim, contents himself with a bare denial of it, without giving any explanation whatever of the inconsistency of that denial with his previous admission of the truth and propriety of the claim. This letter of the defendant, unexplained in any manner, seals his mouth against denying or disputing the claim. Hot only is it unexplained, but it [462]*462is difficult to suggest, and his counsel in argument did not suggest, a plausible reason for the defendant’s writing such a letter, assuming the claim made by the testator as to his interest in the Lodi works to be unfounded. There is something remarkable in the language of the letter connected with the denial and disclaimer which is now made. The evil genius of the defendant seems to have presided over his deliberations when he wrote it, and to have dictated language to show that the admission was made intelligently and with deliberation, and irreconcilable with any future denial. He does not content himself with mentioning the fact generally, that the testator had left him his sole residuary legatee of all his real and personal estate : such an admission was susceptible of the explanation, that he had derived a knowledge of its contents from hearsay, or that, in a hasty reading of the will, the peculiarity of the disposition as to the Lodi print works had escaped his notice. But as if to give emphasis to his admission, and to close his mouth for ever against its denial, he uses the emphatic and pregnant expression, that the testator, by his will, had made him his residuary legatee to all his interest in the Lodi print works. The Lodi print works was all the property he thought worth his while specifically to mention, as if he deemed that the most valuable and the most important, as far as he was concerned. And so it was, as has since been established.
There is really no necessity of referring to other evidence in the cause for the purpose of establishing the fact, that the testator was jointly interested with the defendant in the Lodi works. There is much evidence tending to that result. But it is important to refer to some of it, more particularly for the purpose of showing the real position which the defendant occupies towards the complainants, and how he should be dealt with by a. court of equity under the circumstances.
On the 21st of May, 1849, the defendant, Bennie, with his co-executor, Andrew Macfarlane, proved the will be[463]*463fore the surrogate of New York. Under ordinary circumstances, the mere fact of proving the will would not be regarded as evidence against the executor as affirmation of a claim set up by the testator to property, the title to which was a matter of dispute between the executor and testator. Upon the doctrine of election, if the defendant, as devisee and legatee, accepts the devise of the Leake estate and the legacy of the residuary personal estate, he must make good the testator’s disposition of the Lodi print works.
But the doctrine of election is not involved in the controversy. It is the peculiarity of the property in dispute, the ostensible position the executor and testator had occupied towards it in their business relations up to the time of the latter’s death, the fact that the testator left no other property out of -which the annuities and legacies could be satisfied, and the endorsement which the defendant gave to the testator’s assertion of his right in the property in his letter to one of the complainants — it is its connection with these circumstances that makes the fact of the defendant’s proving the will some acknowledgment of the right which the testator asserted. Why did the defendant prove a will which, from its character, was calculated to vex and harass him ? Why did he assume the execution of a trust which raised a claim to, and disposed of one half of his own property ? These were pertinent questions for the defendant to answer. A full opportunity has been afforded him to do so, but tire only response is the admission that he proved the will, and assumed the execution of its trusts, without any explanation of his object in doing so. The fair inference is, that he did not, when he proved the will, intend to dispute the testator’s title. Under the circumstances, if he did at the time meditate the design of questioning the testator’s title, it was a fraud in him to take out letters testamentary. By that act he possessed himself of all the documents, books, and papers of the testator, by which [464]*464the right of the latter in the property in question might have been established.
Again, on the 23d of November, 1849, the complainants, residing in the city of Glasgow, Scotland, executed a power of attorney appointing Joseph C. Hornblower and Frederick T. Frelinghuysen their attorneys to collect and receipt for the annuities due and to grow due to them under the will of the testator. The attorneys went to the works at Lodi, and there presented their power of attorney. The defendant expressed his satisfaction that some one was authorized to act for the complainants, and his readiness to meet their demands, and appointed an early day for a meeting at the office of a counsellor at law in the city of New York, who was the counsel of the defendant and of the executors. The meeting took place according to appointment, and the defendant then and there, with the approbation of his counsel, paid to attorneys of the complainants the amount then due upon the annuities. It was then arranged that the attorneys should procure an affidavit to show that the annuitants were in life at the time the second payment of the annuities fell due, and that, upon such affidavits being procured from time to time, the annuities should be paid. When the second payment fell due, the necessary affidavit was procured, and was presented to the counsel of the defendant, as had been arranged. The counsel then informed the attorneys that no more money would be paid, and the only reason that he gave was, that the concern (to use his language) had become insolvent, or had been obliged to stop payment, and the defendant was making arrangements to wind up and close the concerns and business of the print works at Lódi. The attorneys asked if any objection was made to the affidavit, and the reply -was, that there was not. Considerable conversation then took place, and no intimation was made that payment was refused on the ground of the testator’s having no interest in the Lodi works. The only reason for the refusal was, [465]*465that the concern was insolvent. The attorneys then called upon the defendant, at Lodi, and demanded payment of him. Ho replied, that he supposed Mr. Chase (the counsel referred to) had informed them as to the matter. They then related to him what had been said by Mr. Chase. The defendant then said that the property had been mortgaged. Upon being asked whether the testator had consented, he said that the accounts hadbeen made up shortly before his death; that the property was mortgaged for all it -was worth; and that Mr. Orombie (one of the complainants, and husband of one of the annuitants,) might take it, if he chose. lie tallied of advances made to Orombie, and but for that the concern would have done well enough. He said the testator would have altered his will if he had lived three days longer; that he knew the condition of the concern, and that he could prove this.
It is a fact of great importance, that notwithstanding all that has been said and done in reference to this matter, no denial or question has ever been made, by any one, as to the testator’s interest in the Lodi works until the defendant filed his answer in the cause.
What explanation does the defendant make, in his answer, of all these facts and of the conversations which have been had in relation to the matter in controversy ? His answer is nothing more than a mere denial of the fact, that the testator was interested in the Lodi works, without any attempt to reconcile his previous conduct and the facts which have been referred to with the denial wLich he now interposes. The bill charges the fact, that his counsel put his refusal on the ground of the insolvency of the defendant, and that the defendant gave as a reason for not paying, that the defendant and the “ concern” were insolvent and unable to pay its debts. The answer, as to what was said about the insolvency of the defendant and of the “ concern” is evasive. If it is intended as a denial of the charges in the bill upon that [466]*466subject, then it is most satisfactorily disproved by the evidence in the cause. I cannot but notice one part of the answer in connection with the charges in the bill, as to what was said on the subject of insolvency. The bill charges that Mr. Chase said that Robert Rennie had become insolvent, or had been obliged to stop payment, and was making arrangements to wind up and close the concern and business of the said print works at Lodi. The defendant puts on file an answer, which is in the handwriting of Mr. Chase, and drafted by him as the defendant’s counsel, in which, as to this charge of what was said by Mr. Chase in the interview referred to, the defendant is made to say, that he has “ no knowledge or information as to what passed between the said attorneys in fact and Nelson Chase, except that he has been informed, by said Chase, that the said Chase informed them that there were no assets in the hands of this defendant belonging to the estate of the said Archibald Bryce with which to pay said annuities, or any part thereof.” Now certainly, if the defendant was under the delusion that he could impose upon this court such an answer as a denial to the charges made in reference to this interview, his counsel ought to have warned him of his mistake. If Mr. Chase could have denied the charges in the bill, he would have told him so, and given to his client the benefit of the denial. I can only say, it would have been much more to the defendant’s advantage to have obtained the real truth, whatever it might be, from his counsel, and candidly to have given it, than to have answered in a manner to manifest a disposition on his part to conceal and pervert the truth. He. has lost his credit for candor, and has placed himself in a worse position than he would have been by a full admission of the charges.
There are very many facts in the case to which I have not adverted. ,1 am perfectly satisfied, from the evidence in the cause, that the defendant is estopped from denying that the testator was jointly interested- with him in the [467]*467Lodi print works and its business, and that he has placed himself in a position to make himself personally liable to the complainants for the payment of their annuities.
The question remains as to the decree that shall be made. I regret that more attention was not given to this part of the case by the counsel on the argument. It causes me some embarrassment, and is, indeed, the only difficult part of the ease.
One prayer of the bill is for an account against the executors. The bill seems to have been framed under the idea that this was the appropriate relief. There has been objection made to the frame of the bill, or in reference to parties. The only issue made by the answer is the one I have considered, as to the right to the property. There can be no general decree for account against the executors. The domicil of the testator was in a foreign jurisdiction. Letters testamentary were taken out there, and the estate has been partially administered there. The will has not been proved in this state, and no one can be called to account here in the capacity of executor, unless he has assumed the duties here according to law. 1 Story’s Eq. P. § 179; Morrell v. Dickey, 1 J. C. R. 153; Doolittle v. Lewis, 7 J. C. R. 45; Logan v. Fairlie, 2 Sim. & S. 284; Tyler v. Bell, 2 Myle & Craig 89, But here is property subject to the trust in the hands of a person bound to execute the trust. A trust maybe enforced not only against the persons who rightfully are possessed of the trust property as trustees, but also against all persons who come into possession of the property bound by the trust with notice of the trust; and whoever so comes into possession is considered as bound, with respect to the especial property, to the execution of the trust. Adair v. Shaw, Schoales and Lefroy’s Rep. 262. The property in question is subject to the payment of the annuities. It is in the possession of Robert Rennie, and the complainants have a right to follow the property into his hands, and charge [468]*468him as a wrongdoer. They cannot call upon him, as executor, to account virtute officii, but as being in possession of property which is applicable to the payment of their claims.
I can see no necessity for an account in this case, as it now stands upon the pleadings and admission of the parties.
The bill charges, in substance, that the testator’s interest in the real estate belonging to the Lodi print works and in the business of the concern is sufficient for the security of their annuities. The defendant, Rennie, does not deny it. His answer must be taken as an admission that the property in his hands is sufficient. The only object of taking an account would be to ascertain that fact. The answer dispenses with that necessity.
In this view of the case, the other legatees are not necessary parties to the suit. They are out of the jurisdiction of the court. The complainants are following the defendant, Rennie, here to obtain from him their rights. The other parties may choose to rely upon the court where Rennie is bound to account. The complainants are not to be embarrassed or delayed in the prosecution of their rights on account of the absence of other parties. They are entitled to the fruits of their superior vigilance. Colt v. Lesnier, 9 Cow. 329. If not necessary parties, then, although made parties, if they do not appear they may be disregarded in the final decree. Edwards on Parties in Chancery 3, 11.
I think the proper decree is a reference to a master to ascertain -what amount the defendant, Robert Rennie, should pay into court to be invested to secure the annuities, and that upon his refusal to make such payment the real estate should be sold. If one half of the sum l’aised by the sale is not sufficient, then the other half should be appropriated for the purpose; and if there is still a deficiency, Robert Rennie must be decreed to make it good.
[469]*469The appeal was argued by
A. O. Zabriskie and William Halsted, for appellants.
Frederick T. Frelinghuysen and J. P. Bradley, for respondents.
The opinion of the court was delivered by
Whelpley, J.
'Upon the main question in this cause I coincide with the Chancellor, for the reasons stated by him — that Archibald Bryce, at his death, had a joint interest in the business and concerns of the Lodi print works; but I dissent from his conclusion, that Rennie has made himself personally liable for the legacies of this respondent.
It would seem, from the opinion of the Chancellor, that on the argument before him but little attention was given as to the mode of relief, and that he was left to invent one, the effect of which was not discussed.
The decree charges all the print works with the payment of the legacies, by a lien declared to reach back to the death of Bryce. It also charges Rennie personally wuth payment of the annuities due, and directs him to give security for the payment of those to become due, by payment into court of a fund sufficient for that purpose; and upon refusal to make such payment, directs the real estate to be sold, and one half the proceeds to be appropriated for that purpose: if that be not sufficient, then the other half, and that Rennie make good the deficiency.
Bid the case, as it stood, warrant such a decree ? I think it did not. He should not have been held personally responsible without any account or investigation of the value of Bryce’s interest in the real estate and partnership property. Ho sound principle is perceived on which the decree can be supported.
When this bill was filed, the complainants were in possession of all the facts on which such liability could be rested. The inventory had been filed, the will proved in [470]*470New York, the defendant had assumed the executorship, the letter to Magdalene Bryce had been written and received, the interview between Rennie and the attorneys of complainants had taken place, and Chase had said to them that Rennie was insolvent, and would not pay, except on suit; Rennie had posessed himself of all the goods and property of Bryce, he had refused to prove the will in New Jersey.
All these facts are set forth in the bill; no new material fact has been disclosed in the evidence. Yet this bill contains no prayer asking for a decree against Rennie personally. It is filed with an entirely different aspect— its prayer is, that the property and interest of Bryce may be devoted to the payment of the annuities, upon the distinct ground that this property was charged by the testator, Bryce, with that burthen; and it further asks for the appointment of a receiver to take charge of the whole partnership estate. Such a bill, containing such a prayer for specific relief, the defendant was called upon to answer.
Upon such a bill, presenting for trial such an issue, to permit the complainants at the hearing to ask for a decree against the defendant in personam, unless the case disclosed by the answer shows facts upon which he ought to be held personally liable, would be a complete surprise. The prayer for special relief is not in such a case sufficient. Relief granted under that prayer should be ejusdem generis with that of the special prayers. It must be consistent with that specifically prayed, for the court will not permit a defendant to be taken by surprise. 1 Danl. Ch. Pr. 435, and eases cited in notes.
The bill is substantially a bill for an account of the interest of Bryce in the partnership, and for the payment of the annuities out of that interest, if sufficient.
The defendant answered it by denying the existence of the partnership and joint interest, and insists that he is not liable to account to the complainants claiming under [471]*471Archibald Bryce; he has not admitted that Archibald Bryce had, at the time of his death, property which came to the hands of defendant sufficient to pay the annuities, or any part of them.
If the greater includes the less, lie has denied, by a denial, that Bryce had any interest in the partnership, the sufficiency of that interest to pay these annuities. Such a denial is not a negative pregnant. The defendant was not called on to answer a charge containing several distinct specifications, so that a denial that Bryce had all, would be an implied admission that he had some. It is a denial of the whole of an entire thing.
By no fair process of reasoning can it be shown that defendant’s answer admits, by necessary or fair implication, that if Bryce had an interest in the print works and its business that it was sufficient to make the annuities.
To take the charge in the hill in its most extensive sense, it is, that the testator’s interest in the real estate belonging to the Lodi print works and in the business of the concern is sufficient for the security of the annuities. To this the answer is, he had no interest at all.
How could the defendant swear that Bryce had no interest in the property and business, and that his interest in them was insufficient for the payment of the annuities ? The two statements are utterly incongruous; they cannot stand together — the last implies the falsehood of the first.
At law in replevin, a defendant may plead non cepit, and by a distinct plea avow the taking, but he could not swear to the truth of both pleas without perjury. I should not have thought it necessary to notice at so much length this point, if it had not been pressed upon the court with so much pertinacity and apparent earnestness. The propositions I have stated are so nearly self-evident as to be almost incapable of demonstration.
Upon a bill filed by one claiming the existence of a partnership between himself and another, and asking for [472]*472ail account of' the partnership, the defendant may deny the existence of the partnership, and thus excuse himself from rendering an account. The court will not compel him to render an account before the right to account is established. Story’s Eq. Pl. 668, 669; Beams’s Pl. in Eq. 123 to 128; Jeremy’s Mitford 231; Drew v. Drew 20, and B. 159; Sanders v. King, Mad. & Geld. 61; Spring v. Edgar, 2 S. & S. 274, 281.
Whether this objection must be taken by plea or answer is immaterial, as this point does not arise on exceptions to the answer. The property in question, to the extent of Bryce’s interest in it, is subject to the payment of the annuities. It is in the possession of Robert Rennie, and the complainants have a right to follow it in his hands, and may not be denied relief because the will is not proved in this state. A trust may be enforced not only against those rightfully in possession of the trust property as trustees, but against all persons who come into possession of the property with notice of the trust.
Bid Rennie come into possession of the property by right or as a wwongdoer ?
If a partnership existed, on the death of Bryce the legal interest in it survived to Rennie — as such survivor, he was to settle up the business; but in addition to this, for some unknown and mysterious reason, Bryce had agreed that all the property should stand in Rennie’s name ; that he should not appear to the public as having any interest. So it remained at Bryce’s death. It cannot be pretended that Bryce, while living, could have charged Rennie as a wrongdoer for holding the property as his own. The complainants do but succeed to his rights.
Again, the personal estate came into his hands as executor and by right. But even if the property of Bryce had consisted of goods and chattels alone, and had not been left in Rennie’s hands by Bryce; if Rennie had taken possession of them without any authority as an executor, they being the sole property of Bryce, he would have [473]*473been but an executor de son tort, and only liable to a creditor for their value ; he would not have incurred a liability for all tlie debts and legacies of the testator. In enforcing such a liability, equity follows the law; it cannot visit a wrongful act with consequences almost penal.
But it is said the defendant’s answer is false- — Bryce had an interest in the property. The court have so found, and that finding should have the same force as an admission in the answer. That is true. What, then, is the finding of the court? It is that Bryce had an interest in the property, the extent and value of which does not appear.
Where the extent of the interest of one of two partners is not fixed by the agreement, and is not,proved, the law presumes It to have been a moiety, eacli to have had an equal share. Story on Partn. 24; Collyer on Partn. B. D., ch. I, § 169, p. 105, 161; 3 Kent 28, 29; Peacock v. Peacock, 16 Ves. 66.
Rennie cannot he held personally liable because he did not produce the books of the business. lie was not bound to do this before a decree to account; he might do so or not as lie saw fit or was advised by his counsel. Had the complainants wished them as evidence of the existence of a partnership, notice to produce them might have been given, and if refused, evidence of their contents might have been given. The nonproduction of the books, after notice to produce them, would have been a circumstance against Rennie. The suppression of testimony is always a strong circumstance against him that is guilty of it, but mere nonproduction is not entitled to any such weight. The fair presumption is that Rennie would have produced the books, if he had been notified to do so. lie has never refused. There is no evidence that he has ever destroyed a single paper, or refused to the complainants permission to examine anything they had a desire to see connected with their claim.
We must bear in mind that the complainants are mere legatees, and as such, what a court of equity calls volun[474]*474teers. They claim a gift from Bryce, not a debt due by him. Their rights are only such as he had, and are subject to all the infirmities attending his rights. If he chose to involve his affairs in obscurity they have no right to complain — it was his right to do so if he chose. These complainants are the mere objects of his bounty — they must stand in his shoes if he had in his lifetime conveyed all his property to Bennie to avoid payment of his debts ; a court of equity would not- relieve him coming with a bill to get it back, nor would they give his legatees any better audience. The complainants are women, and as such entitled to our sympathy as men, but not as judges. We cannot eke out the evidence to relieve them because we may feel that their j ust expectations may otherwise be disappointed; nor can we invent a new rule upon which to make the defendant liable for tens of thousands of dollars, by way of punishing him for what we may think a false denial in his answer. The Court of Chancery does not sit to punish crimes by giving the property of the offender to another; it sits to administer the law of the court by fixed ascertained rules. That law is equity, not vengeance.
The great argument of complainants’ counsel in support of the relief invented by the Chancellor was, “ that he that doeth iniquity shall not have equity.” That maxim applies to a complainant seeking relief, but is no authority for giving against a defendant a decree not supported by law or evidence.
Bennie paid the first semi-annual instalment of each annuity; he did not, at the time, deny the sufficiency of the property charged to meet the payments. Two funds were charged, the Lodi print works and the Leake estate. In view of this, I do not think the payment of the two instalments to the attorneys, without any statement of the insufficiency of the interest of Bryce in the print works and business, affords sufficient ground to support a presumption to conclude the defendant on that point.
[475]*475The fact of payment in silence was not an admission of the sufficiency of the interest in the print works alone to answer not the payment of one instalment merely, but of a sucession. of instalments, for the life of the legatees or annuitants.
Payment of interest upon a legacy by the executor for a number of years, coupled with other circumstances, has been held to dispense with the necessity of an account, to amount to an admission of assets; to an assent to the legacy. Such a course of conduct would warrant an inference that the executor had made the legacy his own debt.
It would be unfair to permit the executor, who had, by long continued payment of interest upon a definite sum left as a legacy, lulled the legatee to sleep, and prevented his availing himself of his legal remedies to put the legatee to proof of sufficiency of assets, where perhaps, by lapse of time, proof was impossible.
In such cases executors have been, with great propriety, held personally liable, and an account has been dispensed with. Such eases have proceeded upon the ground of an express promise to pay the legacy, or that to permit a denial of assets after such conduct would be to permit a fraud to be perpetrated by the executors. Holland v. Clark, 2 Y. & C. C. C. 319; Rothwell v. Rothwell, 2 Sim. & St. 217; Bradley v. Freath, 3 Sim. 143; Attorney General v. Chapman, 3 Beav. 255; Barnard v. Pumfriett, 5 Mylne & Cr. 63; Rowley v. Adams, 7 Beav. 395.
But this case does not fall within the principle of these cases. The legatees now before the court were promptly told, when the period for the second semi-annual payment became due, that they must assert their right by suit. They could not have sustained any subíantial injury by the extremely short delay that had intervened between that time and the death of Bryce.
The complainants are entitled to an account, in which Bennie must be charged, in addition to his own moiety of the assets, with having received also Bryce’s moiety, [476]*476and he must show, if he can, that Bryce’s moiety of the assets was not sufficient for the payment of these annuities, and if not sufficient, what the deficiency was. There must he a decree that these annuities be paid and secured out of Bryce’s interest. The decree of the Chancellor, that Bennie be held personally responsible, and that the whole property be sold to pay and secure the annuities, must be reversed, and the ease remitted, to be proceeded in according to law and the opinion of this court.
Ogden, J.
My conclusions in this case are — that Mr. Bryce has been shown to have been, at the time of his death, an equal partner with Robert Rennie in the Lodi print works, and in all the business then connected therewith ; that although Rennie’s answer, which was made under the advice of a counsellor who was acquainted with the affairs of the works, absolutely denies any partnership between them, yet that it ought not to be taken and held to be such plenary evidence of admission of assets as to preclude him from showing, after the fact of a partnership has been established by a decree, what the true condition of the firm was at the time of Mr. Bryce’s death— whether it was insolvent, barely solvent, or insufficient, in whole or in part, to meet the bequests made by the will of'Mr. Bryce; that the decree of the Chancellor should be affirmed as to the existence of the partnership, but that it should be reversed so far as it determines that this is not a proper case for an account upon the pleadings and admissions of the parties; that an account should be taken before a master of the partnership property at the time of the death of Mr. Bryce, its situation and value, and also of the debts then existing against the firm; that in stating the account, the partnership estate should be assumed to have been sufficient to pay the debts of the print works ; and that the burthen of proof should be put upon Mr. Rennie, to satisfy the Court of Chancery, beyond a doubt, that the assets and property of Mr. Bryce [477]*477were at the time insufficient to pay his debts and to respond to the full payment of the bequests given in his will.