
    Erwin v. Henry.
    1. The circuit court, as a court of chancery, has concurrent original jurisdiction with the county court, in compelling administrators, executors, &c. to make just inventories, settlements, distributions and payment of legacies. But whore either court has exercised jurisdiction, and no appeal has been taken, the subject matter adjudicated cannot again be made the subject of litigation, unless attacked for fraud in obtaining the judgment. Tompkiks, Judge, dissenting.
    
      2. A testator, by will, manumitted his slaves at specified times after his death, willing that one of them, a female, should servo the executor for four years and then have her freedom; and alter making various specific legacies, embracing the mass of lps property, he desired “that his crop of grain, farming utensils, household furniture, Ac. should be valued and acted on according to law,” and concluded “that if there was a residue from hire of negroes, crop, &c. he wished it given to E.” (the complainant.) Held, that it was the intent of the testator, in desiring his crops, farming utensils, &e. to be acted on according to law, not that they should be distributed as in cases of intestacy, but that they should be appraised and sold for the payment of his debts — otherwise, the last clause, constituting a residuary legatee, would be nugatory. And the female slave, wh* was directed in the will to bo hired out for four years, having during that time and before she acquired her freedom, borne a child, it was held, that the value of the child should be applied to relieve th'e residue, out of which the debts and expenses were paid, and should in that way at least inure to the benefit of the residuary legatee, E.
    
      Carty Wells, counsel for appellant,
    cited:
    2 Bibb, 298; 1 Mar. 532; 1 Wil. 333; 3 do. 141; 1 II. Bl. 223; 2 do. 144, 450, 451; 1 Sto. 560, 529 to 540 and 473; 2 Tuc. Com. 492; 1 do. 437; i Mit. 144; 1 J. C. R. 620,166; 6 Con. R. 500; 1 Sto. Com. 323, 509 to 514, 80, 533, 64, 512, 967; 2 do. 328, 329, 453; 2 BIk. Com. 494; 3 do. 98; 4 Bell, 266; 3 Whea. 221, 223; 3 Pet. 433, 447; 1 Tuc. Com. 499; 8 Tez. 380; 2 Mad. Ch. 6; Rev. S. M. 155, sec. 8; 2 Vez. 285; 3 Wil. 141; 2 H. Bile. 444, 850, 851; 1 do. 223; 1 J. C. R. 498, 620,116;' 6 Con. Rep. U. S. 500; 1 Tuc. Com.449; 8 Vez. 380; 2 Mad. Ch. 6; 2 J. C. R. 339; fyí. L. 508, sec. 2.
    
      E. Bates, counsel for defendant,
    cited:
    Rev. C. 156; 2 Wm. & Ex. 1186; 7 S. T. R. 690.
   McGirk, Judge,

delivered the opinion of the court.

In 1836, Erwin filed her bill in the circuit court of Lincoln county, praying that court to decree to her a specific legacy which she alleges was bequeathed to her by the last will and testament of one Malcom Henry. The bill was demurred to for want of equity, and was dismissed by the court. It appears by the record that the testator, Malcom N. Henry, made his last will and testament, and shortly thereafter died. The will commences with the usual solemnity, and then says that after the burial expenses are paid, and all his debts are paid, the following disposition of the property shall be made: “Item 1st.- It is my will and desire that my boy, Adam, Juno and Cynthia, be released from bondage, on condition that Juno serve my sister Mary one year; Adam and Cynthia to serve the executor of my estate, or serve them to whom he hire them. Adam to serve two years, and Cynthia to serve four years, each then to have their perfect freedom, provided nay sister may quit her claim to Juno; otherwise, the property I will to her shall herejeafter be equally divided between my brothers and sisters: my desire is to pay sister Mary well for her claim on Juno.” The will then goes on to make several specific bequests and divises of real estate, apparently to a considerable amount. Then the will declares thus: “My crop of grain, farming utensils, household and kitchen furniture,' and' stoek, all of which I want valued and aeted on according to law, after my affairs are settled; thenj if there is a residue from hire of negrpes, crop, &c. 1 wish it to be given to Eleanor Erwin. I appoint Francis Henry my sole executor,” &c. The bill charges thgvt the executor took upon himself the execution of the wjll; made certain inventories, appraisements, &c.; and also, certain settlements with the county court of Lin-coin county; paid the specific legacies; sold the personal property of the testator, required by the will “to be ac-ted on according to law.” The bill charges that during the four years Cynthia, the female slave, was required to serve before her freedom commenced, she had borne a female child, which, by the will, was wholly undisposed of, and that the same thereby fell into the general residue; that the complainant is entitled to said child as residuary legatee after the payment of debts. The bill alleges that all debts aré paid; that considerable sums of money came to the hands of the executor which he has rendered no account of; that he embezzled divers goods, chattels and effects belonging to the testator; has rendered no account of the hire of the slaves; that he privately and against law, opened a certain trunk of deceased, which the bill alleges contained valuable property, and that he has rendered no account of it; that he claims the female child, the slave, as his own; that he made unjust and unfounded charges.of expenses for administering the estate; that, deceiving said court, has made a settlement of his executorship, by which settlement no residue is left. The bill charges divers other mal-practices, and prays for a discovery of assets, a resettlement of accounts already settled, and that the slave may be decreed to her, and for general relief. On the argument of the cause here, Mr. Bates, of counsel for the defendant, Henry, has made several objections to the claimants right to recover, the first of which is, that the matter of the complaint belongs exclusively to the county court. The second is, that in regard to the matters already settled by the county court, as no appeal was taken from that court, its proceedings, as far as they go, are conclusive.

3. That by the true construction of the will, the slave does not pass to the complainant by the residuary clause, but falls into the general assets. Mr. Wells, for the complainant, insists that, by the British chancery law, it was a peculiar power of courts of chancery to decree the payment of legacies, and particularly the payment of residuary legacies, and that that court took cognizance of accounts of executors and administrators, and compelled them to discover assets and render just accounts; and to prove this, he cites many authorities— see Mitford, 114; 1 J. Ch. R. 620; 1 Story’s Com. 599, 509 to 514. I have no doubt of the power of the chancery court in England, and that it has the power claimed for it by the complainant’s counsel as to this matter. The counsel for the defendant admits that such is the case; but he contends that all matters relating to the payment of legacies, the due execution of wills, and the settlement of deceased persons’ estates, are exclusively given by the act of the general assembly to the county court; therefore, the bill was rightly dismissed for want of jurisdiction in the court as a court of chancery.

The circuit court as a court of sery,has risdictVon with1' the county court, in compelling ocutors^&c.\oX" make just twies, settle-of legacies/ when either court riKictfon1SandJno appeal has been taken, the subject «cUannotag'ain be made thoS ject of litigation, ft1^ fraud hi ob-taiaingthe mont. Tompkins, a ge,

By section of the act respecting county it is enacted that the county court shall have, exclusive original jurisdiction in all cases relative to probate of last wills and testaments, the granting letters testamentary and of administration, and repeal-the same. The second clause then proceeds to enu-raei'dle other instances of jurisdiction, but drops the “exclusive original jurisdiction.” In the third paragraph, power is given to settle the accounts of ex-administrators and guardians, but still the words “exclusive original jurisdiction” do not occur. Yet we must at least read here that the jurisdiction is to be ori-and not appellate, and I see no great reason why we may not read also, that the jurisdiction shall be ex-elusive as well as original, so far as the mere tacking of se£lse ®nd sentences is concerned. This idea is also by the fact, that in the seventh instance, the act says the county court shall have concurrent ju-r'IS(fiction with the circuit court in all such cases, where demand shall exceed that sum — that is, a sum just enumerated in the sixth instance, which is the sum of I should have no doubt the words “original exclusive jurisdiction” would well pervade the statute till the 7th clause, if it were not apparent that tiro concurrent power in the 7th clause mentioned, is only mentioned for the purpose of parcelling out the objects of the concurrent authority in the 6th and 7th clauses only, if, indeed, the concurrent power is to b® carried up fo the 7th clause by implication, the same rule would carry the concurrent power to a great length beyond the 7th clause. In the 9th clause, both courts would have power to control and manage the property of the county; in the 10th, both would have power to puichase property for the county; in the 11th, to sell the same; and 12th, to audit and settle accounts against the county. For these reasons, I cannot admit that the exclusive jurisdiction in the first clause mentioned goes beyond that clause; nor that the concurrent jurisdiction mentioned in the seventh clause goes beyond it. Then, whatever is given to tlie county court belongs to it, and that given to the circuit court belongs to it properly; and that wherever the subject of litigation is given to both courts without some exclusive words in that matter, the jurisdiction is concurrent» By the 1st section of the amended constitution, the supreme and circuit courts are invested with chancery power, to be exercised in such manner as shall be prescribed by lav/; and by the 2d section, the whole judicial power, as to matters of law and equity, is vested in the supreme court, circuit courts, and county courts. This power is to be exercised in the manner prescribed by law. The act respecting county courts has, in general, marked out the powers that can be exercised by the county court; and the act respecting the circuit courts has, in like manner, marked out those powers to be exercised by the circuit court; but in some instances the same power, on particular subjects, has been given to botii courts without any declaratory words as to whether the legislature intended the jurisdiction should be exclusive or concurrent. Iu all such cases, I take the jurisdiction to be concurrent. In the county court act, power is given to require and compel executors, administrators, &c. to render just inven'ories, to make just settlements, to pay legacies, and to make distribution of shares, and the like. And by the act of the legislature of 1835, ?age 155, respecting circuit courts, it is also provided, lüai the circuit courts shall have general jurisdiction, f?nd special jurisdiction also. It is declared by the 7th paragraph, that the said court shall have a general control over executors, administrators, guardians, minors, idiots, lunatics, and persons of unsound mind; and shall proceed therein according to the rules, usages and practice of courts of equity. 'Ibis power is, in the same act, given to the county court. This power, given to the ®ircuit court as a court of equity, is exactly the power exercised by the English courts ’di’ equity over the same subjects. Í cannot doubt that the jurisdiction is concurrent. In the case at bar, my opinion is, that as to so much ol the subject matter of this suit as may have been adjudicated on by the county court, and not appealed from, the same cannot, unless for fraud in obtaining the adjudication, be again the subject of litigation in a court of chancery, or any other court; for the rule of law is, that where several courts have concurrent jurisdiction of a matter, if one gets hold of the matter and ^ets on it, that action precludes the others from like action*

It appears b<y the bill in this case, that several important matters relating to the estate, have not yet been acted on; so that I am of opinion the circuit court has jurisdiction oí the cause: The next inquiry is, what is the effect of this will on the claim set up by the complainant. Mr. Wells has cited several authorities to show instances in which the courts have had before them the effects of residuary clauses —3 Will. 141; 1 H. B. Rep. 223; 2 do. R. 444, 50—1; 1 Will. 333. It does not seem to me that these authorities throw much light on the clause in this will. It is true, in these cases, the court have recognized the principle that it is the duty of the court to find out, if they can, what was the intent and wish of the testator. The complainant’s counsel insists, also, that the slave passes in kind to her by the residuary clause. On this point, I am not at present entirely satisfied, but incline to the opinion it is not.

A testator, by oified atlmea his death, willing serve for four years and thenhave'her te^making^arious specific the\aTsbof°ldaS property*, he desired “that his crop utensils* house08 hold furniture &c. should be valued oonün^tolaw” and concluded' “that if there was hir^of'negroes crepj'&c.^wfah-ed it given toS,” ant*5 ^íelíthñtit was the* intent the testator, in siring his erops, ^.eTfo^eaeUdon according to law, shoaM bedutri buted a/ia'cases of intestacy, bus that tiiey s[10Uu appraised and ^ for th.e last clause, con-^eewould b’/nugatoryTAnd the female slave, ■^rwUl'to'be'1 hired6out for four years, having du-that time and red°herBfreedom,1 borne a child, it was heldD^at gh0uld°be applied te relieve the resi-duo out ofjvhich see3 and should in that wa^1gtb1^af1ltn“(r® U-gatee, E.

I. will now proceed to discover, if I can, what it was intended should pass by the residuary clause ^ complainant, in the first part of the will. It is not,-as the counsel has supposed, that the words show exact intenh°D of disposing of all the testator’s ef- — there is no words to that effect; but this is, in general, to be presumed from the fact that the testator says, in substance, he expects to die shortly, and there-^ore’ makes his will. This will first charges all the estate the payment of debts and personal expenses; then ^ Procee(^s io parcel out divers pieces of real and personal property. I don’t doubt that the testator thought he had, by this will, disposed of all his substance, and regard to those things specifically devised, he provided for those who were the first objects of his bounty. Then he seems to have remembered that he ^arm'ng utensils, a growing crop,- and a stock of cattle, horses, and the like; and also, that he had provided for the hireing negroes out to labor. It then became a <luestion in his mind what should be done with lh°se things. All this time it seems never to have occurred to him that Cynthia might, before she became *re®’ have a child; therefore, he makes no provision in to that event. With a view, then, to dispose of things yet on hand, he directs and says, “my crop 0f grain, farming utensils, household and kitchen furniture) and stock, is all to be sold and acted on according to law.” No one can doubt the meaning of this direc-^013’ •Pr0Perty is to be inventoried and sold, and the money1 collected and used to pay debts as far as necessary, to pay expenses of administration, and the like; then the testator, pursuing the idea further, declares that, after all his affairs are settled, if there be any residue from the hire of negroes, crop, &c. the complainant shall have it. There would be no obscqrity in this devise, if it were not for the words “hire of negroes, crop,” &c. It is said by the defendant’s counsel, that there must be a residue from the hire of negroes, and the sale of the crop, farming utensils, and household and kitchen furniture. I do not think this is a fair construetion of the will. I do not believe that when the tor directed his stock, crop, utensils and furniture to be valued and acted on according to law, that he meant thereby to have the proceeds thereof distributed as in cases of intestacy; and one reason for it is, t'he item of the crop is mentioned here also, as well as in the enumeration of substances out of which the residuary devise was to be made. As to the proceeds of this item, the testator could be supposed to mean that they should go to his next of kin, and to the complainant also, as residuary legatee. This instance, in my opinion, proves that the testator did not mean to limit the fund or substance out of which the residue should arise, to the two things done, mentioned; the hire of negroes, crop, &c. being mentioned only to show the character of the substances out of which the residue should aiise, and not the identity of the objects. The character, then, is that of personalty and not of realty; and that the testator had more in his mind than he did express by words, is clear, from the nexation of the “&c.;” what it was, must be gathered from the several parts of the will. From this view of the subject, I conclude this residue, after the settlement of all debts and expenses, and all legacies being paid, whatever might remain, whether of money on hand at the time of the testator’s death, or due him, and that all property of a personal character, 'of whatever kind, which he could call his at the time of his death, is to be taken as the residue. It is my opinion, therefore, that at any rate, the value of the slave, Adaline, should be applied to ease the residue, and that the chancery court should, if the debts and expenses have been paid out of the residue fund, order that exhaustion to be supplied by the value of the slave protanto.

That this course is sanctioned by precedent and authority — see 1 Story’s Equity, 560, passim, side paging; 1 Tucker’s Com. 437, 492; and the equity books are full of authorities on this point, under the heads of “ marshalling,”‘‘assets” and “substitution.” This brings me to the conclusion of this case~ which is, that the court below did wrong in dismissing the contptaiuaitt's bill, end the same ought to be reversed. Judge Enwnnrs concurring herein, the same is reversed and remauded.

TOMPKINS, Judge, dissented.  