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PRAY V. BELT, 26 U. S. 670 (1828)

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U.S. Supreme Court

Pray v. Belt, 26 U.S. 1 Pet. 670 670 (1828)

Pray v. Belt

26 U.S. (1 Pet.) 670


The testator in his will says

"Whereas my will is lengthy and it is possible I may have committed some error or errors, I therefore authorize and empower, as fully as I could do myself if living, a majority of my acting executors, my wife to have a voice as executrix, to decide in all cases in case of any dispute or contention whatever they determine is my intention shall be final and conclusive, without any resort to court of Justice."

Clauses of this description have always received such judicial construction as would comport with the reasonable intention of the testator.

Even where the forfeiture of a legacy has been declared to be the penalty of not conforming to the injunction of a will, courts of justice have considered it, if the legacy be not given over, rather as an effort to effect a desired object by intimidation than as concluding the rights of the parties. If an unreasonable use be made of such a power so given in a will, one not foreseen and which could not be intended by the testator, it has been considered as a case in which the general power of courts of justice to decide on the rights of parties ought to be exercised.

There cannot be such a construction given to such a clause in a testator's will as will prevent a party who conceives himself injured by the construction from submitting his case to a court of justice. A court must decide whether the construction of the will adopted by those who are named is the right construction, or the grossest injustice might be done.

Where a legacy for which suit is instituted is given jointly to several persons in different families and the legatees take equally, the number in neither family being ascertained by the will, all the claimants ought to be brought before the court. The right of each individual depends on the number who are entitled, and this number is a fact which must be inquired into before the amount to which anyone is entitled can be fixed. If this fact were to be examined in every case, it would subject the executors to be harassed by a multiplicity of suits, and if it were to be fixed by the first decree, would not bind persons who were not parties.

The appellees, complainants in the court below, on behalf of Jane Heath, the wife of James P. Heath, and of her children filed a bill in the chancery side of the Circuit Court of the United States for the District of South Carolina against Ann Pray, executrix, J. J. Maxwell, and George Waters, executors of the last will of John Pray deceased, for the recovery of a legacy to which Jane Heath was entitled under the will.

The clauses of the will of John Pray, brought under the notice and consideration of the court and exhibited by the record were: chanroblesvirtualawlibrary

Page 26 U. S. 671

"Item 51. Whereas I hold ten bonds, given by John J. Maxwell, payable by ten installments, the first on the tenth of January next, and the others on the tenth of January in each year after. It is my will and I direct that the bonds payable 10 January, 1820, 1821 and 1822, say the three first, shall be applied in aid of the payment of my just debts, if any due, and in the payment of the legacies by me left. It is my request that my executors do also apply all funds which I may possess at my decease, as also dividends on all my bank stock (except that part of dividends which I have directed to go immediately to some of my legatees), and also to apply all moneys due to me, as soon as collected, and also all rents and crops of rice and cotton, first to pay any debts, and then legacies, any heretofore left, or which I may hereafter leave to be paid. It is my will, and I do direct, that my executors do pay up the one-half of all the cash legacies by me left to my relations out of the first funds they can command from my estate, except those I may have directed to be paid immediately; and after they have paid the one-half to my relations, thereafter it is my will that they do pay up in equal proportions, agreeably to sums left, to all my other legatees; and be it understood, and it is my will and intention, that after they have paid the one-half to my relations, that they will continue to pay them the other half in equal proportions with my other legatees; my object and intention is to place them on the same footing with my other legatees, after the payment of one-half to my said relations. It is my will and request that my executors do pay all my debts and legacies as soon as possible after my death; but be it explicitly and plainly understood that no interest whatever is to be allowed on any legacy by me left to anyone of my legatees, as in all probability the resources and funds of my estate will be equal to the payment of my debts and legacies before the three bonds mentioned of John J. Maxwell may fall due and be collected. In case all debts and legacies can be paid before the three aforesaid bonds can be collected, then and in that case whatever balance may remain to be collected on the three aforesaid bonds, principal and interest, it is my will that the same shall be equally divided as collected, between the following persons, share and share alike: to my executors in trust for the use and benefit of my aunt Turpin, my uncle's present wife; it is my intention to keep it from being subject to my uncle's debts that I leave it in trust; in case of no risk, my executors will pay it over to my aunt. My god-daughter, Mary Jane Pray Hines, wife of Lewis Hines. The children of Thomas Mann, by his present wife, as also Ann and Jane, now in New-Providence. Any part

Page 26 U. S. 672

which the children of Harriet Mann, Thomas Mann's wife, may be entitled to, is to be ascertained by the number she may have at the time these bonds are collected, and my executors are ready to pay over. In case all is not applied on my debts and legacies, and if Harriet hath any child after the payment, then such child to receive such proportion as the other children out of the part paid to such as she before had or has at the time the same is paid. My executors will be governed in the distribution, by the number of children Harriet has on the day they are ready to make a distribution. In case of any surplus left on said bonds, the said children's parts to be paid to their legal representatives, so it is not their father (I omitted the word Mann after the words Ann and Jane above), and to Richard K. Heath, in trust for the benefit of Jane Heath, wife of James P. Heath, and such children as she may have when that surplus may be collected, in case of there being any."

"It is my will and I direct that all my estate, both real and personal, shall be kept and continued together until all my just debts and legacies are paid, debts, if any, first, and as soon after as possible, to be disposed of as hereinafter directed."

"In case of accidents by fire, at any time before or after my executors pay my debts and legacies, it is my will that my wife receive the amount of insurance to aid in rebuilding, and in case of accidents by fire on lots in Nos. 6 and 7, before my debts and legacies are paid, it is my will in such case that my executors hold all my estate together until they can add $10,000 to what may be received on insurance, and they are requested to put on fireproof buildings on said lots to both these amounts, and if these sums are insufficient, they are authorized to raise any balance for erecting proper buildings on the credit of my wife; this balance, if any required, be it understood, is to come out of my wife's portion of my estate left her."

"In case of such an accident, if necessary, in order not to delay rebuilding, my executors will resort to a loan from the bank or banks. Whereas there is no doubt butccident, if necessary, in order not to delay rebuilding, my executors will resort to a loan from the bank or banks. Whereas there is no doubt butccident, if necessary, in order not to delay rebuilding, my executors will resort to a loan from the bank or banks. Whereas there is no doubt but there must be a considerable surplus fund of my estate by debts due, or crops on hand, or near made, after my executors have paid all my debts and legacies, which my wife will come in for -- if my executors discover that by such surplus, that the same will not be equal to $10,000, in that case it is my will, that they continue all my estate together, until they can make up $10,000, and it is my request that they will, as soon as possible after raising the aforesaid sum, proceed to put up fireproof buildings on the aforesaid lots."

"Whereas my will is lengthy, and it is possible I may have committed some error or errors, I do therefore authorize and

Page 26 U. S. 673

empower, as fully as I could do myself, if living, a majority of my acting executors, my wife to have a voice as executrix, to decide in all cases, in case of any dispute or contention, whatever they may determine is my intention shall be final and conclusive, without any resort to a court of Justice."

The defendants John J. Maxwell, and George M. Waters, in their separate answers allege

"That in the month of December, 1819, the defendants, qualified as executors of the will of John Pray, and having ascertained that there was a sufficient sum of money to be raised from the crops which had been made that year, as also from debts due the estate of said John Pray, the testator, on bonds, notes, and other securities which could soon thereafter be realized, to satisfy all the unpaid legacies of the said testator, commenced a delivery of some portions thereof to those claiming and entitled under the will. That in the meantime, after they had commenced a division of the estate of said testator, and before its completion, to-wit, on 10 January, 1820, the accident occurred, which had been guarded against by the sixty-first item of the will of said testator, as set forth in the complainant's bill, and the buildings on lots No. 6 and 7 were destroyed by fire; that at the time when this event occurred, the debts of said testator, which were small, may have been, and as this defendant believes, were all paid and discharged, but the legacies remained partially unpaid and unsatisfied, although, as this defendant believes, at the time, and as previously stated in this answer, there was a sufficiency of funds to be realized from the means already pointed out, to discharge and pay the remaining unsatisfied legacies, and which the executors, when they commenced the division of the estate, as aforesaid, intended to apply to the payment of said unpaid legacies; that previously, also, to the said conflagration, by which the said buildings on lots No. 6 and 7 were destroyed, the first bond of the said John J. Maxwell had been collected, and applied to the payment of the debts and legacies. That the funds, which were to be realized from the crops, bonds, and notes, as aforesaid, by the executors, and which had been deemed adequate to the payment of the unpaid legacies, were insufficient for that purpose, and the payment of the said $10,000 bequeathed to the said Ann Pray in the said sixty-first item of said will, in the event of the destruction of the buildings on the said lots six and seven, which actually occurred; that the two remaining of the three bonds of the said John J. Maxwell, which were directed by the fifty-first item of the said will to be appropriated in aid of the payment of the said debts and legacies, were then resorted to by the executors, from which, in addition to the available effects

Page 26 U. S. 674

already specified, a fund was realized equal to the payment of the legacies, and the sum of $10,000, which was appropriated to the use of said Ann Pray, as directed, in sixty-first item of said will; that the said appropriation of the two remaining bonds of the said John J. Maxwell, was made after the division of the estate had commenced, as already shown, but before its completion."

"That if the estate of the said testator had been kept together, after the conflagration aforesaid, a sufficient time, funds may have been realized sufficient to pay all debts and legacies, and to meet the aid authorized and directed for the said Ann Pray; but this defendant declares that it would have required the estate to have been kept together four or five years for this purpose, without resorting to the said bonds; in the meantime, the said bonds would have become due, and been realized, the one being due on the ___ day of January, 1821, and the other on the ___ day of January, 1822. That in and by the fifty-first item of the said will, the said bonds are expressly directed to be appropriated in aid of the payment of the debts and legacies, and only to be distributed among the legatees therein named in the event of the debts and legacies being paid out of the funds, made subject by the will to that purpose, before the said bonds should become due or could be collected. That if the said estate of the said testator had been kept together until the necessary funds for the relief of the said Ann Pray and the payment of the legacies had been raised from the annual proceeds, the benefit arising to the said Jane Heath and her children, by receiving their proportion of the real estate of said testator devised to them, must have been delayed four or five years, whilst, by the early division of said estate, they were greatly benefited, having realized, at that time, from this means $3,500. And this defendant admits that the complainants have applied to the executors of said testator on the subject of the proportion of Jane Heath, in said bonds, and to which they supposed her entitled. That the division of the estate having been commenced, and a portion of the property delivered to the devisees and legatees, and a fund sufficient to pay the legacies, and which was to come into the hands of the executors, having been reserved for that purpose, they considered themselves bound in justice to the legatees and devisees, who had not received their proportion of the estate, to proceed in the completion of the division of the estate, and therefore conceived the estate, so far as regarded their power to continue it together until the $10,000 could be raised to relieve the said Ann Pray, from the annual proceeds, as having been in effect divided. "

Page 26 U. S. 675

2. No answer to the bill of the appellees was filed by Mrs. Pray.

The case was heard on the bills and answers, and the circuit court determined, that the executors had misapplied the proceeds of the bonds of J. J. Maxwell, on which the legacies claimed were charged, and that Mrs. Pray would have to refund to the value of the residue bequeathed to her, and, ratably, also, according to the interest and income of the property specifically bequeathed to her. An order of reference was made, and thereupon the master was ordered to make certain statements of the condition of the estate, and of other facts necessary to a final decree.

These reports having been afterwards made by the master, the circuit court, on 9 May, 1826, made the following decree:

"This cause came on to be heard on the master's report, pursuant to a reference at the last term, on the following points: 1st, a statement of the debts due by the testator; 2d, a statement of the pecuniary and other legacies, and how and when paid; 3d, of the funds applicable to the debts and legacies; 4th, of the receipts and expenditures of the executrix and executors; 5th, of the value of the residue bequeathed to Mrs. Pray; 6th, of the value or amount of the income which the estate would have produced, had it been kept together specifically. Of the several amounts claimed by these complainants, in behalf of those whom they represent as legatees, and his own views of the correctness of those claims, with reference to the principles on which they are calculated. And he, the said master, having duly made and submitted his report upon all the matters so referred to him, and it appearing from said report, that the proportion of the funds of the said testator, to which, under his will, the complainants are entitled, amounts to the sum of $12,111, as by reference to said report of file in the registry of this Court will more fully appear."

"It is ordered, adjudged, and decreed that George M. Waters, and Jno. J. Maxwell, executors, and Ann Pray, executrix, do pay to the said complainants, the sum of $12,111. And it is further ordered, decreed, and adjudged that the said sum, when collected by force and virtue of this decree, be paid into the hands of the clerk of this Court, and on the receipt of the said sum, he is hereby ordered and directed, so soon as the same can be effected, to invest the said sum in the purchase of United States stock, or bank stock of the United States Bank, as may appear most advantageous to the complainants' and it is further ordered, adjudged, and decreed that the defendants do pay the

Page 26 U. S. 676

costs of this suit, and interest on the principal sum decreed, to be computed from the service of this decree."


By agreement of counsel, a part of the master's report was afterwards corrected, and the number of persons among whom the amount of John J. Maxwell's bonds were to be distributed, being accurately stated, the sum to which the complainants below were entitled, according to the principles of the decree of the circuit court, was found to be $9,909, instead of $12,111, as stated in the report.

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