The Chancellor.
This is a suit by an executrix and her children (she and they being beneficially interested, under the residuary clause of the will), against her co-executors, and another residuary legatee, and the Attorney-General, as the representative of the state, in respect to one of the bequests, in reference to which the bill seeks the judgment of the court.
The bills — original and supplemental — are filed for advice, for a construction of the will, and for the approval of the court in regard to the action already taken by the executors in reference to trusts under the will, and its actual or supposed authority or directions in relation thereto.
Suits of this character, although capable of being so con[85]*85ducted and controlled as to do justice to all persons in interest, may not be the most desirable method of trying the rights of the parties, and may be open to very grave objection as repeats the claims of legatees or devisees, adverse to the executors or trustees.
This is evidently an amicable suit, so far as the complainants and the executors, and those who claim under the will* adversely to the state, are concerned. In actions thus instituted, voluntary applications to the court for its advice or direction, involving, it may be, the very existence of important and valuable interests, it is the duty of the court to see to it that the rights of legatees and devisees are protected, and to that end, to mould the proceedings, if necessary, so as to effectuate its purpose of doing justice to all parties. It is also incumbent upon it to give such direction to the proceedings as, if possible, to make a complete and final disposition of the subject,- and put an end to controversy, as far as practicable. That could not have been clone in this case without the information. As the proceedings stood before it was filed, no relief could have been given to the state, against the executors.
It appears to me to be clear that, to say the least of it, the proceedings, without the information, were neither apt nor complete for the determination of the questions involved in the controversy, as regards the battery, and it would have been the duty of the court to exercise its formative power to effect a final and effectual adjudication on the subject. To that end, if the information had not been filed, it might, and probably would, as a proper, if not necessary preliminary to a decree, have directed, when the cause should have come before it for judgment, that such an information be filed in behalf of the state. The information, therefore, is not to be regarded as obstructive or dilatory.
The application now before me is for a discharge of the stay.
It is insisted by the counsel of the complainants in the original suit, that the progress of that part of the litigation [86]*86should not be impeded by the filing of the information. They urge that the practice of the court is wholly against granting or continuing the stay.
It is true, the proper time for filing a cross-bill, where such bill is necessary, is at the time of putting in the answer to original suit, and before the issue is joined by the filing of the the replication. But the reason is, that there is ordinarily no excuse for delaying it beyond that period, because the matters of defence, upon which a cross-bill is founded, must be stated in the answer to the original suit, as well as in the cross-bill, and it can, therefore, seldom be necessary to delay the filing of the cross-bill till after the original cause is at issue. 2 Daniell’s Ch. Pr. 1650; Irving v. De Kay, 10 Paige 319.
But the reason of the rule fails in such cases as this, where the Attorney-General is made a defendant, as the representative of the state. He' may be profoundly ignorant of the facts which constitute a defence to the state, or its protection against the adjudication which is sought against or affecting its interest. Therefore, his answer may be, and usually is a mere form — a general answer, professing ignorance in reference to the matters contained in the bill, and expressing a hope that the interests of the state may be taken care of. 1 Daniell’s Ch. Pr. 130. Such an answer is put in without oath, and is not liable to be excepted to, even though it be a cross-bill filed by the defendant in an information, for the purpose of obtaining a discovery of matters alleged to be material to his defence to the information. Ibid.; Deare v. Att'y-Gen., 1 F. & G. Exch. R. 209.
It is evident that the reason for requiring that a cross-bill be filed between the filing of the answers to the original suit and the replication thereto, will ordinarily fail where the Attorney-General is a party in respect of the interests of the state. I think it fails here.
But, the rule itself, as applied to ordinary cases of suits between private persons, will be relaxed, on good cause shown for the delay in filing the cross-bill, and in such case, if the testimony has not been closed, the court may grant the stay. [87]*87White v. Buloid, 2 Paige 166. Besides, in such proceedings as these, the legatee or devisee ought not to be treated with the same strictness, as defendants in cases involving the violation or withholding of rights. There ought, of course, to be no unnecessary delay in the progress of the suit, but at the same time, there should be no undue baste. The sole object of the action is to settle the rights of the parties. The practice, as stated in White v. Buloid, is approved in Williams v. Carle, 2 Stockt. 5-13.
The evidence in the case before me is not closed, though it is insisted by the complainants in the original suit, that they have closed their principal case. But two witnesses, and they the executors, have been examined.
There seems to me no valid objection, arising from the practice of the court, to continuing the stay. This suit, so far as the rights or interests of the state are concerned, is a suit for construction and advice. If the complainants, as legatees, seek relief in that connection, it is by indirection. They directly ask an adjudication as to the provision of the will in regard to the battery, and claim the advantage which will result from a decision adverse to the claim of the state. It is a case peculiarly fit for the exercise of the formative power of tlie court — one in which the court, appealed to for its advice and direction, will take care to protect legatees wdio are brought before it, not as wrong doers, but on account of their apparent claim to the testator’s bounty, against the expense and other incidents of fruitless or unnecessary litigation.
The information presents the question, whether the provision of the will in reference to the battery, is not, in effect, an absolute gift of the vessel to the state, and invites an issue, and asks a decision on that point. An adjudication favorable to the claim of tlie state, on that question, would, of course, render it unnecessary to consider whether the alleged condition, that the battery be finished for a sum not to exceed $1,000,000, be an impossibility or not.
If the Attorney-General is right on this point, and the [88]*88provision is to be construed as an absolute gift to the state, why should the state be.
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The Chancellor.
This is a suit by an executrix and her children (she and they being beneficially interested, under the residuary clause of the will), against her co-executors, and another residuary legatee, and the Attorney-General, as the representative of the state, in respect to one of the bequests, in reference to which the bill seeks the judgment of the court.
The bills — original and supplemental — are filed for advice, for a construction of the will, and for the approval of the court in regard to the action already taken by the executors in reference to trusts under the will, and its actual or supposed authority or directions in relation thereto.
Suits of this character, although capable of being so con[85]*85ducted and controlled as to do justice to all persons in interest, may not be the most desirable method of trying the rights of the parties, and may be open to very grave objection as repeats the claims of legatees or devisees, adverse to the executors or trustees.
This is evidently an amicable suit, so far as the complainants and the executors, and those who claim under the will* adversely to the state, are concerned. In actions thus instituted, voluntary applications to the court for its advice or direction, involving, it may be, the very existence of important and valuable interests, it is the duty of the court to see to it that the rights of legatees and devisees are protected, and to that end, to mould the proceedings, if necessary, so as to effectuate its purpose of doing justice to all parties. It is also incumbent upon it to give such direction to the proceedings as, if possible, to make a complete and final disposition of the subject,- and put an end to controversy, as far as practicable. That could not have been clone in this case without the information. As the proceedings stood before it was filed, no relief could have been given to the state, against the executors.
It appears to me to be clear that, to say the least of it, the proceedings, without the information, were neither apt nor complete for the determination of the questions involved in the controversy, as regards the battery, and it would have been the duty of the court to exercise its formative power to effect a final and effectual adjudication on the subject. To that end, if the information had not been filed, it might, and probably would, as a proper, if not necessary preliminary to a decree, have directed, when the cause should have come before it for judgment, that such an information be filed in behalf of the state. The information, therefore, is not to be regarded as obstructive or dilatory.
The application now before me is for a discharge of the stay.
It is insisted by the counsel of the complainants in the original suit, that the progress of that part of the litigation [86]*86should not be impeded by the filing of the information. They urge that the practice of the court is wholly against granting or continuing the stay.
It is true, the proper time for filing a cross-bill, where such bill is necessary, is at the time of putting in the answer to original suit, and before the issue is joined by the filing of the the replication. But the reason is, that there is ordinarily no excuse for delaying it beyond that period, because the matters of defence, upon which a cross-bill is founded, must be stated in the answer to the original suit, as well as in the cross-bill, and it can, therefore, seldom be necessary to delay the filing of the cross-bill till after the original cause is at issue. 2 Daniell’s Ch. Pr. 1650; Irving v. De Kay, 10 Paige 319.
But the reason of the rule fails in such cases as this, where the Attorney-General is made a defendant, as the representative of the state. He' may be profoundly ignorant of the facts which constitute a defence to the state, or its protection against the adjudication which is sought against or affecting its interest. Therefore, his answer may be, and usually is a mere form — a general answer, professing ignorance in reference to the matters contained in the bill, and expressing a hope that the interests of the state may be taken care of. 1 Daniell’s Ch. Pr. 130. Such an answer is put in without oath, and is not liable to be excepted to, even though it be a cross-bill filed by the defendant in an information, for the purpose of obtaining a discovery of matters alleged to be material to his defence to the information. Ibid.; Deare v. Att'y-Gen., 1 F. & G. Exch. R. 209.
It is evident that the reason for requiring that a cross-bill be filed between the filing of the answers to the original suit and the replication thereto, will ordinarily fail where the Attorney-General is a party in respect of the interests of the state. I think it fails here.
But, the rule itself, as applied to ordinary cases of suits between private persons, will be relaxed, on good cause shown for the delay in filing the cross-bill, and in such case, if the testimony has not been closed, the court may grant the stay. [87]*87White v. Buloid, 2 Paige 166. Besides, in such proceedings as these, the legatee or devisee ought not to be treated with the same strictness, as defendants in cases involving the violation or withholding of rights. There ought, of course, to be no unnecessary delay in the progress of the suit, but at the same time, there should be no undue baste. The sole object of the action is to settle the rights of the parties. The practice, as stated in White v. Buloid, is approved in Williams v. Carle, 2 Stockt. 5-13.
The evidence in the case before me is not closed, though it is insisted by the complainants in the original suit, that they have closed their principal case. But two witnesses, and they the executors, have been examined.
There seems to me no valid objection, arising from the practice of the court, to continuing the stay. This suit, so far as the rights or interests of the state are concerned, is a suit for construction and advice. If the complainants, as legatees, seek relief in that connection, it is by indirection. They directly ask an adjudication as to the provision of the will in regard to the battery, and claim the advantage which will result from a decision adverse to the claim of the state. It is a case peculiarly fit for the exercise of the formative power of tlie court — one in which the court, appealed to for its advice and direction, will take care to protect legatees wdio are brought before it, not as wrong doers, but on account of their apparent claim to the testator’s bounty, against the expense and other incidents of fruitless or unnecessary litigation.
The information presents the question, whether the provision of the will in reference to the battery, is not, in effect, an absolute gift of the vessel to the state, and invites an issue, and asks a decision on that point. An adjudication favorable to the claim of tlie state, on that question, would, of course, render it unnecessary to consider whether the alleged condition, that the battery be finished for a sum not to exceed $1,000,000, be an impossibility or not.
If the Attorney-General is right on this point, and the [88]*88provision is to be construed as an absolute gift to the state, why should the state be. put to the expense and trouble of a litigation on the subject of a condition which does not exist ? In cases of charities, it has been the practice of the court to determine the real question between the parties, in the readiest, most expeditious, and least expensive manner. In Attorney-General v. Pearson, 3 Meriv. 395, a question being made as to what the character of the injunction should be, whether common or special, there being a suit at law pending, Lord Eldon said: “ I do not think that we should have occasion to disturb ourselves with any question on the practice of the court, as to this being the case of a common or special injunction, and so forth; because, taking it to be a trust, in the nature of a charity, for religious purposes, I conceive that the court is in the constant habit, in such cases, of saying that, provided it sees any way of deciding the points at issue, it will not allow the parties to go to trial, but will itself find the means of putting the matter into a course which will save all the expense of such proceeding. And, if it should turn out to be clear, upon the bill and answer, that a certain portion of the legal trust estate is vested in the plaintiff, and a certain other portion in the defendants, I take it to be quite within the compass of the court’s jurisdiction to say, I will put the parties exactly in the same condition, as to the point at issue, as if there had been a trial, judgment, and execution at law.” See, also, Rochester v. Attorney-General, 2 Bro. P. C. 287.
It is incumbent on the court, in cases such as the present, to adopt the like reasonable course.
In justice to the parties, the question just referred to, whether the provision is to be construed as an absolute gift or not, should be passed upon by the court, before the cause proceeds further, and I conceive it to be. my duty to stay the original suit to that end. The stay will, of course, be modified so as to be confined to so much of the suit as relates to the provision of the will in respect to the battery.
The motion to dissolve is denied.