
    
      Present — Chancellors Mathews and Rutledge.
    William Perronneau, vs. the executors of Henry Perronneau, deceased.
    CASE RXV2,
    DECREE ROOK, vol. ii. p. 59.
    Devise of the whole estate to executors, to collect the funds and remit the whole to executors residing in England to be invested, there; and to pay 3001. per annum to the testator’s wife for life. Legacies of 50001. tc relations in England. After the death of the wife, the whole estate to testator’s nephew W. P. if he survives testator’s wife. If not, then to his children: If he leaves, no children, then to his brothers and sisters. The estate is verv large. W.P. has several children, and is in v$ry cumstances." Though the bequest js not vested in ,eourtP under -he circum-eieeithat^'a maintenance lowed?!?his family out of The court aT-that decreed great change of circum-more of the be^emtaed to England oíent t0Spay the ^ annuity des there?"1'
    
      The bill states that Henry Perronneau, formerly of Charleston, being seized and possessed of a considerable estate, real and personal, in Carolina and England, and having no issue, did on the 9th day of July, 1786, make his will, which is set forth at length in the bill; by which after all his debts and funeral expenses were paid, he devised his estate as follows : — He gave to his wife Ami, all his household furniture, &c. plate, books, beds, bed and table linen, &c. He also gave lier an annuity of 30CZ. during her natural life, and charged his whole estate with the payment of it, in lieu of dower. He also directed all his Carolina debts to be collected by liis executors there, and remitted to his executors in England to be invested in government securities. He gave to his brother-in-law, Hr. Alexander Garden, 2,5001. to he paid on the death of his wife; but if he should die first, then the said legacy to go to his nephew Alexander Garden, his niece Juliett, and his niece Harriott Benson, to be equally divided. He gave to Robert Cooper 2,500i. to be paid on the death of his wife; hut if R. C. should die before his wife, then he gives the legacy to Cooper’s children: If there should be default of cliild, then he gives it to Ann and Eliza Cooper. He gave to his servant John Champneys 3001. to he paid on the death of his wife. He also gives him his wearing ap-pare!. He gives to each oí his executors 1001. Then follows this clause — .«All the rest and residue of my worldly estate, whatsoever and wheresoever I do hereby give, devise and bequeath unto my nephew William Per-ronneau, son of my brother Arthur Perronneau, deceas-cd, immediately after the death of my said wife; but in case of his death before her, then on such event or contingency, I do hereby give devise, and bequeath the same and every part thereof to the child or children of my said nephew William Perronneau, lawfully to be begotten, as shall be living at the time of his death, to be equally divide(j between them as tenants in common — if more than one, as soon as possible after the decease of my wife: andm casemy said nephew shall happen to depart this life without leaving any children or child lawfully begotten living ^ the time °f his death, then and on such event or contingency, I do hereby give, devise, and bequeath the said surplus and residue of my said worldly estate after the death of my said wife unto the other children of my said deceased brother Arthur Perronneau, as tenants in common of like equality of estate; but if there shall be no children or child of my said brother living at the time of the death of my said wife, then and on such event and contingency, I do hereby give, devise and bequeath the same an<^ every Par* thereof unto such of their children lawfully begotten as may he living at the death of my sa^ 'wife, to he equally divided between them as tenants in common, if more than one.” Lastly, he appointed Dr. Alexander Garden, Robert Cooper, Robert W. Powell, and John Hopton, of Westminster; John Savage, of Brompton; Benjamin Savage, of London; Rawlins Lowndes, Isaac Motto, and Edward Penman, of South-Carolina, executors of his said will. — That the testator died on the day of November, 1786, leaving the will of force, and without issue. That Messrs. Lowndes, Motte, aud Penman, proved the will, and qualified as executors, and took possession of the Carolina estate— That the estate was very large; being much more than adequate to raising and securing the annuity to the widow — That the testator at the time of making his will was under strong impressions of the instability of the American governments, and the insecurity of property from the then unfortunate and unsettled state of public affairs — it was the reason of his directing the funds of his estate to be remitted to England. Complainant is well assured that Ms uncle was actuated by the strongest de» sire to secure the legacies to the objects of his bounty, and particularly complainant who was the favored object. But complainant submits that great changes have taken place in public affairs since his death; since which the present government hath been erected, and has happily secured peace abroad and security at home; while wars and revolutions new in their principles and boundless in their extent, disturb the nations of Europe, and threaten the funds of Great-Britain; that it would therefore be more likely to effect the chief views of testator, if after remitting as much as would secure the annuity, the residue were retained in this country, and placed out under the directions of this court for the benefit of complainant and his family, who are chiefly interested, and are anxious it should remain in this country under the jurisdiction of the court. That at the time testator died, complainant was a youth, and lived at no expense to himself in the household of his mother; but since, hath intermarried and become burthened with a numerous family, which. hath become exceedingly distressed in consequence of the failure of some of those resources of his mother upon which he had in a great measure depended, whilst the large residuary estate of the testator is locked up from, him. The executors not deeming themselves at liberty to extend any relief to complainant, either by the payment of interest, annuity, maintenance or in any other way without the sanction of court. Whereas complainant humbly submits he is entitled to demand the interest on the residuary estate, as well as to have the amount of the same secured to Mm, after securing the said pecuniary legacies and the annuity prior to the same being transposed into a foreign country beyond the reach and jurisdiction of the court. That complainant hath applied to the executors of said estate to have the residuary estate and the interest thereon secured to him in manner aforesaid, after securing the legacies and annuity aforesaid; but the said executors have hitherto refused him his reasonable request; alleging that complainant is not enti-tied to any maintenance out of the said estate; nor to have the same secured or l’etained in this country. The bill therefore prays a discovery and statement of the estate, of the monies remitted to England, of the debts duo, and that after remitting to England so much as will pay the widow’s annuity, and secure the legatees residing there, that complainant may receive the residue of the interest in whole or in part, and that the residuary estate may be secured for the benefit of complainant and his children, by placing the same at interest in this country, and within the jurisdiction of this court, or otherwise, as this court may direct; and that the remittance of the estate into a foreign country may be suspended: and that the complainant may have such further relief as the nature of the case may require.
    
      Sept. 1796.
    
    
      The answer of the defendants admits all the facts alleged in the bill; hut submits that the legacy to Mr. W. Perronneau not being vested, he is not entitled to any allowance for maintenance out of the estate; and submits that point to the court. Also, that the testator having directed the debts due to him to be collected and remitted to England, the executors are bound to obey his will; and that the court has no power to control the performance of his will.
    The brother and two of the sisters of Mr. William Per-ronneau, to whom the estate was devised and bequeathed over on the event of his dying before Mrs. Ann Perron-neau, the wife of the testator, and without issue, delivered a written declaration that they had no objection to his success in the application to the court for relief in the. case stated by his will; and they also stated that they knew that to be the wish of their sister Mrs. Wm. Hayne, and her husband, who were absent, and did not sign the declaration. At the hearing of the cause, Mr. Ford and Mr. Dcsaussure, argued for the complainant. They fitated that there v/ere two objects in the bill r
    
      1st. To obtain an allowance out of the interest of the estate, by way of maintenance for an infant family, enti-tied to a large estate hereafter, but in danger of suffering at present.
    2d. To obtain the detention of the estate in this country within the jurisdiction of the court, for the benefit of the persons chiefly interested in it; or if it must be remitted according to the directions of the will, to require security from the executors abroad, to whose care the estate is to be committed.
    The application is opposed on the grounds, that the legacy to Mr. Perronncau is not vested, but devised over to his children, on his dying before the testator’s wife; and to his brothers and sisters, if he died without leaving children. Also, that a father is not entitled to maintenance for his children out of their fortunes; and that the will of the testator directing the estate to be remitted to England, must be obeyed; and the executors are not bound to give security.
    It was contended for the complainant that the sole object of the testator, in postponing the legatees to his wife’s death, was to keep his estate together, to secure his wife her annuity at all events; and not to make a distinction between a vested and contingent legacy. But she can be made safe without such a hardship on the complainant, his nephew, and the favorite object of his bounty, next to his wife. And the court will be anxious under such circumstances to give relief. 1 Wilson. 140. 4 Burr. 2246, 3 Bro. C. C. 404. 1 Bro. P. C. 288. 3 Bro. P. C. 337. Wherever the court can find a slender twig to take hold of, they will do so to give relief in such hard cases. Few of the decided cases form exact precedents. Lord Chancellor Hardwicke said, that when and to whom interest was to be allowed, depended so much on particular circumstances; on the relation of pai’ties; on the penning of wills; that hardly one case could be cited that would be a precedent for another, and the court has found means to escape from the operation of harsh and strict cases on small circumstances. 1 P. Wms, 783. 2 P, Wms. 21, 2, 2 Vera. 152. 2 Bro. C. C. 75. 1 Bro. C. C. 119, 298. 3 Bro. C. C. 4/1, 90. 3 Bro. P. C. 33/.
    Tn many cases it has been decided that the devise over does not make any objection to such a claim as the present. 2 P. Wms. 21. 2. 419. 504. 1 Bro. C. C. 82. 104.
    I» general, where the court refuses to give aid, it is where the contest is between the immediate legatee and remainder men. But here the application is by the first legatee, for maintenance for his children, who are the first in remainder; and the remoter remainder men com sent to the measure. The complainant has no estate of his own, out of which he can maintain and educate his children. He depends on his mother, and her means have been greatly impaired by fire, by insolvency of debtors and other circumstances. No injury can result to others from granting the application — 'not to the widow-because the court can and will order remittances sufficient to raise her annuity of 300k per annum during her life— not to the pecuniary legatees in England, because after remitting enough to secure them, there remains a very large estate, out of which the application of the complainant may be granted; and indeed there are funds enough of the estate already in England to secure them.
    The case in 2 Atkins, 41, was of the administrator of the party applying for intermediate interest after the death had happened, and the limitation over, vested. So in 3 Atk. 508. and in 1 Atk. 505. The court looks at the spirit and equity of the cases and doctrines; not the letter of them. In Loocock and Clarkson, the court protected the annuity of the widow against specific devisees and legatees, though no case had ever gone so far before. The distinction between a legacy at 21, or payable at 21, on which many ofthe cases have been founded, has been questioned by eminent judges. Lord Chancellor King said, the distinction does not deserve tobe countenanced, 2 P. Wms. 612: and Lord Keeper Wright said it was a distinction without a difference. 2 Vcrn.41Z, 424. There are two strong cases in favor of the complainant. In the case of Clax-tón v. Claxton, 2 Vera. 152, the court suffered the devi-see to perform the condition, even out of the properly do-vised, before the estate in contingent remainders, was to vest. In 2 P. Wins it was declared by the master of the rolls to have been the practice to allow maintenance even in the case of legacies that were not vested.
    Another objection has been made, to wit, that the court does not usually allow a father to have maintenance fpr his children, out of an estate devised to them aliunde; yet this depends upon the ability of the parent to maintain them.
    In Hughs v. Hughs, 1 Bro. C. C. 387, the Lord Chancellor ordered maintenance on the ground of the inability of the parent; though he thought the fund was intended to accumulate.
    See too 3 Bro. C. C. 416, 4 Bro. C. C. 223. maintenance is so much regarded, that the principal is sometimes allowed to be broken in upon. 1 Yernon, 255. 2 P. Wms. 22.
    We come now to the consideration of the second great point made in the case.
    It is contended for the complainant that the estate should be detained' in the hands of the executors in this country; or that the executors resident in England, who require the money to be remitted to them, should give security for the repayment of it to the legatee here on the death of the widow of the testator.
    It is true that the will of the testator directs that Ms-whole estate should be converted into money, and remitted to his executors in England, to be invested in government stock, for the benefit of his legatees.
    Now it is manifest that this regulation was founded on peculiar circumstances. The testator was a man of sense and probity, but he had adhered to the cause of the mo - ther country, in the struggle which terminated in the independence of the colonies. He wras obliged to leave his country, and he was amerced for his political error. — ■ This soured his mind — .the distresses brought upon this country hy the war; the total want of a national government; the derangement of the finances of the state governments; the interference between debtor and creditor, by state laws, and the consequent breach of contracts, and depreciation of property, ail tended to induce a be. lief in many, and an apprehension in all, that the new re<* publics were about to become scenes of discord and anarchy. In the minds of those who had been hostile to the revolution, this belief was deeply fixed.
    &1 this frame of mind, the testator sat down to draw his will in the year 1786; and it is not to be wondered that he was desirous to withdraw all his property from a country devoted to ruin in his estimation; not only for the benefit of his wife and his English legatees, but his favorite nephew and residuary legatee, though he resided in this country. The testator died soon after without one circumstance in the political situation of this country being altered. It is now ten years since his death. The United States have formed a strong national government; public and private credit are re-established; internal tran-quillity is firmly settled, and peace is maintained with all the belligerents during the arduous struggle which is desolating and exhausting the European nations. England has taken an active part in this wide spreading war; and she has incurred a vast debt in addition to her former bur-thens; and the revolutionary fervor has spread among her people, and threatens internal convulsions. Under these circumstances, so totally different from those which existed at the time that the testator made his will, there can he little doubt that the testator, if living, would have altered his will; and would have directed that at least so much of his estate should have been left in this country as was intended for the legatees residing here: and what he would probably have done, it seems reasonable for the court to do. It is not asking the court to vary the rights of a single party. It is merely to make such a variation in the arrangement of the funds as will be most beneficial and secure for those interested: which the court is in the habit of doing, even to the sale of real estates, where it is beneficial to the devisees and legatees.
    There is already considerable property in England.— Let so much be remitted in addition as will secure the annuity to the widow; and as will pay the legacies to Dr. Garden and Mr. Cooper, who reside in England, amount-íng to 5000Í. The remainder of the estate, which is very large, is bequeathed to the complainant, and on his death to his children: they arc natives, and permanent residents in this country. There is no good reason for obliging them to seek their legacies hereafter in a foreign country, where they are strangers, and might have great difficulties, and be put to great expense in the recovery of their rights, if the executors in England should resist their • claims, or even put them to the proof of them. And it should be remembered that interest is two per cent, higher in this country than in England. But if the court should feel itself so bound by the positive direction of the will, as to be obliged to permit the removal of the funds of the estate out of this country into a foreign country, it would be quite reasonable to direct that before the removal took place, the executors residing abroad, who insist on the exact fulfilment of the will, and require the remittances to be made to them, should be directed to give security for the repayment of the money to the legatees in this country, on the event happening, which shall entitle them to it. There are many cases in which the court requires security of executors, even without absolute proof of waste or insolvency. See 2 Eq. Cas. abr. 552, 7. 3 P. Wms. 300. 1 Vesey, 282. Ambl. 273, 2 Atk. 58. 1 Bro. C. C. 181, 2. 3 Bro. C. C. 45, 337. Now the removal of the fund out of the jurisdiction of the court, which may he of the greatest prejudice and delay to the complainant, when all the causes which induced the testator to make such an arrangement are totally changed, is surely a reasonable ground to require security.
    Mr. T. Lowndes and Mr. Rutledge for the defendants
    stated, that the executors of the testator Mr. Henry Perronneau, residing in this country, wei’e very sensible of the hard situation in which the complainant was placed, and were willing to do every thing favorable to him which was in their power, or which the court should feel itself at liberty to authorise. But it was their duty to bring to the view of the court the legal grounds of objection to the complainants application 5 especially as the executor in England had been consulted, and had positively required that the application should be resisted, and the estate remitted to them in England, according to the will of the testator. It is admitted that the interest and income of the estate greatly exceed the annuity of 300L bequeathed to Mrs. Perronneau. This surplus income must accumulate for the benefit of the residuary legatee in remainder, unless the court should feel itself free to allow some portion of it to the complainant. This is not a vested legacy — the rule is that where the time is annexed to the legacy itself, and not to the payment of it, it is not a vested but a contingent legacy. The devise over to Mr. Perronneau’s children, on the event of his dying before the widow of the testator, prevents the legacy vesting in him, and the devise over to his brothers and sisters, in the event of his dying before the widow, and without leaving any children, prevents the legacy vesting in them. It is a contingent legacy. See 3 Bacon, 478, 486, on vested and contingent legacies. It must he a vested legacy, or the devise over must take effect.-*-2 Atk. 41. See 3 Atk. 114. 1 Ycsey, 111. Where a real estate is devised over, on a contingency, the intermediate rents and profits go to the heir at law. And where there is a bequest of the residue of personal estate, on a contingency, the interest accumulates till the event happens, and the estate becomes vested for the benefit of the ultimate legatee who happens to take. 1 Atk. 505. 2 Atk. 41. 3 Atk. 58. Atk. 473. Green vs. Elkins, 1 Yesey, 490. 2 Ycsey, 521. The cases cited by the complainant’s counsel, are cases of vested legacies. But even if it had been vested, the court will notallow maintenance, unless where the legacy is the gift of the parent. For if the parent ho living, it is his duty to maintain his child, and to allow any legacy derived aliunde to accumulate for the benefit of the. child. Ón the other point, for retaining ihe«funds of the estate in this country, the defendant’s counsel said, that the defendants residing here were willing to acquiesce in any decree of the court on the subject: but the executors abroad opposed it, and they were hound to state to the court, that the will of the testator gave express directions to remit his whole estate to England, and vest it there. That whatever were the induce-meats to the testator's making such a provision, when his principal legatee, the residuary legatee of a large estate resided here, his will should be obeyed. It was conceded indeed that the circumstances of a country might be so altered as to induce the court to restrict the transmission of funds to it in such a case as this. Such as a desperate civil war, or a foreign war, during which the enemy mastered tiie country. But there must be extreme circumstances to justify a departure from the will of the testator. Who can say that the change of circumstances, justly described by the complainant’s counsel, would have induced a change in the testator’s mind, attached as he was to Great Britain, and doubtful as lie was of any good issues from American Independence? Great Britain was engaged in foreign war, and has greatly increased her national debt; but she pays her interest regularly, and raises new loans at her pleasure; and many politicians have already been deceived in predicting the downfall of her financial system, from the accumulation of her debts. This hardly made out a case for the interference of the court. It was not an extreme one.
   The court took time to deliberate, and afterwards delivered the following decree:

There are two points in this cause.

First. Whether the legacy to the complainant is a vested legacy, or a mere contingent interest, subject to be defeated on failure of the condition annexed to it.

Second. Whether this court ought to exercise those, extraordinary powers with which it is vested to overrule the dispositions made by testator in his will. •

As to the first point, we cannot consider the legacy to the complainant as a vested legacy, consistently with those established and strict rules, which are laid down, in the- books; for there is not annexed to it either certainty as to the time of payment, or the person to take. The time of payment is not till the death of testator’s ■wife, which is uncertain; and then it is on condition that the complainant survives her; if not, it goes over to his children; and if he leaves no child, then to his brothers and sisters; "but if they should all die befoi’e the tcstator'b wife, then to their children. As this therefore is not a vested legacy, in which case the complainant would be entitled to the interest arising thereon, we must consider the case on its own intrinsic merits; and notwithstanding ' ^ this objection, determine whether we can, without a violation of the essence and true principles on which those rules are founded, extend some relief to the distressed objects now before us, praying for the interposition of this court, for that purpose. It is notorious, that courts of equity have of late very much relaxed their rigid rules of construction, and have conformed their decisions more to the circumstances of the cases immediately before them, than to former precedents, where they have been considered as partaking more of the strict rules of common law, than the more liberal rules of the court of equity. The following observation by one of the most enlightened judges that ever sat on the chancery bench, we think a striking and just one, namely, in cases of this kind,” he says,“ how far a legatee who is not entitled to the payment of his legacy immediately, shall have interest in the moan time, depends upon particular circumstances. Some upon relationship, some upon the necessities of legatees, and most of them upon the particular penning of mils; and there is hardly one case which can be cited, that is a precedent for another.” "With respect however to the case before us, we are not without a precedent to direct our judgment; for the case of Woodbcrry vs. the executors of Collins, is as nearly assimilated to the present, as two cases can be. The words of Collin’s will arc, I give to my granddaughter, Mary Woodbcrry the following negroes, namely, Big Jack and 1000Z. which money to he made by my said negroes before they shall be divided; but should my said granddaughter Mary Woodbcrry, depart this life before she arrived at the age of twenty-one yeans, and shall have no issue, then in that case my will is, that aforesaid negroes Big Jack, &c. and the 1000Z. should be divided between the following persons, Dr. MtGrejor and others.” According to strict rules this is no vested legacy; for she can only be entitled to it under the condition annexed to it, namely, her attaining twenty-one years of age; on failure of which, it is limited over to others. It is not a gift by a parent who is bound to maintain his child, and out of whose legacy this court would allow interest, if not so directed by the parent. But by the same rules it is considered as a gift by a stranger. Yet the court on a representation, that the father of the infant was incapable of giving her either maintenance or education, made a reasonable allowance out of the legacy for those purposes. What is the case before us ? The complainant or his children, will at a future day, be entitled to a considerable estate; but until that day arrives, they must remain in such a state of penury as to want almost all the necessaries of life, and consequently every means of education; unless this court can extend to them some present means for those purposes out of this large estate in expectancy. And why should not this reasonable application he complied with ? Because, it is said, this is not a vested legacy, and therefore the interest must be made an accu-mulatory fund, until the period arrives when the legatee would he entitled to the legacy. We think ourselves warranted on every principle of sound justice, and of precedents, to extend such relief as the nature of the caso will bear us out in administering. It will here be proper to state this part of the case more at large than we have as yet done. The testator, Henry Pcronneau gives to his wife an annuity of 3001. to other persons legacies to the amount of 6200Í. payable on the death of his wife; the rest of his estate he gives, devises and bequeaths to the complainant if he survives the testator’s wife; if not, to his children. The estate is represented to be nearly 20,000l. in value. It will require 75001. to be placed in the funds directed by testatoi’, to raise the annuity of 300L The balance will probably produce an interest of 600 or 7001. per annum. If then an allowance is made for the relief of the complainant’s family, out of this latter fund, where is the possible injury which can arise to any one? We can see none. The widow of the ís‘<datar can receive none; the other legatees can receive Hone; their legacies being pecuniary must be paid with the last farthing of the estate: the residuary legatees can take nothing until the pecuniary legatees are satisfied. As to the possibility that the present complainant may die before he comes into possession of the estate, and therefore what may now be allowed may ultimately prejudice his children, can by no means be a sound objection; for his application is not on his own account, but principally for the support of those very children, who might possibly he entitled to this estate. Can this work an injury to them ? Every rational mind must contemplate it in the reverse. But should they come hero at a future day and say so, they would conic with so ill a grace, as Hover would entitle them to be countenanced by this court. Besides the relief to be given can and will be. so modelled by this court, that it shall appear that they were the peculiar objects contemplated by us, at the moment of granting that aid, which is prayed for their particular benefit,

As to the second point, whether this court will restrain the executor in this country from doing that which by the will of the testator lie is directed to do ? A great variety of precedents will warrant us in doing so. The first and most striking one is that of Baker -as. the executors of B. Elliot. In that case, although the will of B. Elliot expressly mentions that no part of his lands should he sold, yet it being represented by his executors that the estate was so much in d.ebt as to exhaust the whole income in payment of interest alone, that the personal estate being first liable for payment of his debts, particularly the negroes, and without them the lands 'would become unproductive and a burthen. That in such event the minor, his only child would he deprived of the means of support or education; that if on the contrary this court would authorise a sale of a part of the lands, reserving so much thereof as woidd ho sufficient to work the negroes, the minor would have a competent support therefrom, which would be evidently for his advantage-. The court directed a sale of the lands on these grounds: That could the testator have foreseen the very material alterations the circumstances of this country had undergone, since the making of his will (it having been made in 1773) and since Inis death, he never would have insert-cd such prohibitions in his will. That it was not only for the advantage of the minor that this court should in-ieriere, but to save his estate from ruin. We did therefore interfere and directed a sale of so much of the lands as was sufficient to pay the debts and legacies, in lieu of the negroes, which would otherwise have been sold. Since that decision this court have made several others of a similar nature. If then in these cases we have restricted the dispositions of testators, where such restrictions have tended to the benefit of those who wore intended to have been benefited by the testator himself, but who would instead of being benefited, be materially injured by a rigid adherence to the disposal made by the testator; surely then this is a case which calls on us, in as perceivable terms for our interference, as any which has yet come before us. We have nothing to do with what were the testator's political principles; we ai'e to consider him like any other man setting down to perform what is always supposed to he one of the last acts of his life; in taking a minute view of the situation of his affairs, and of those who are the objects of his affection and bounty, he disposes of his estate in such manner, as in his best judgment will be most beneficial for those who are at a future day to enjoy it; but if before that day arrives, the circumstances of that country where he had directed his property to be fixed, had undergone so material an alteration, as to render it at least hazardous to fulfil such Ms directions; and which it was impossible for him to have foreseen, is there not the highest degree of probability that had he. been now alive, he would have altered that disposition, and sought for some more certain fund to place his money in ? We must conclude that he, as every ether prudent man, would have done so. Ought we not then to do that, which it is morally certain the testator himself, under these circumstances would have done ? Wre certainly ought; and the court is well warranted in this decision, because a material benefit will he thereby rendered to one party, and no possible injury done to the other. Who and where are the persons that are to take the residuary estate after the death of testator’s widow, and payment of the pecuniary legacies ? They are com piainant or his children; natives and citizens of this state, who reside and will most pi’obably end their days here. The defendant and the greatest part of his testator’s estate being here under the immediate control of this court, it would be extremely unwise and impolitic to per - mit him to remove the whole of the property to another country, totally out of the jurisdiction of this court. If a sum of money sufficient to raise the annuity for the widow is remitted to the executors in England, to be vested in government securities, it is all slie can in justice require: and as the legatees are not entitled to payment till the widow’s death; in that event there will be more than sufficient in that country to discharge all their demands on the estate: to go beyond that would be reducing the residuary legatee, at a future day, on the death of the widow, to the necessity of crossing the Atlantic, to. recover his property, at a certain great expense and risk, and perhaps an infinite loss of time; if the executors on that side of the water should be disposed to contest his right, which it is not improbable they would, from the disposition they shew to get the whole property into their possession.

In order therefore that the respective rights and claims of the parties may be justly and equitably preserved and protected, we do order and decree, that the defendant (as soon as he can possibly collect the debts due his testator) remit to the executors in England, to be by them vested in government securities, so much money as (in addition to what they already possess) shall be sufficient to secure to the testator’s widow the annuity bequeathed to her. It is further ordered, that the defendant do and shall hereafter retain and keep in his custody and power, all such other monies belonging to his testator’s estate as he may receive; and from time to time place the same at interest in the funds of this, or the United States, or other good security, for the benefit of complainant or such other persons as shall, on the event of the widow’s death, become entitled thereto; paying thereon to complainant such sum or sums of money as shall be at any time allowed and directed by the court for the maintenance and education of his children. And the master is hereby directed to enquire and report what may be an adequate allowance for the present maintenance and education of the complainant’s children. Also that the complainant do annually account before the master for the sum of money so to be allowed; and to be at liberty to apply to the court by petition for an additional allowance, as his family may increase in number and years. And lastly, that the costs be paid out of the estate.  