husband, where poverty and other circumstances seem to require it. The same general rule obtains, as far as we know, in all the American states.21

12. But courts of equity will require the husband, upon receiving a legacy belonging to the wife, to make a suitable provision for her support, if that is not already provided for.22 And although it was formerly said that courts of equity would not require the whole fund to be settled upon the wife, it seems now that no such limitation will be adhered to, but the court will act its discretion in the matter.23

13. And until the reasonable support of the wife is in some way made secure, the executor will be justified in refusing to pay the amount of a legacy due her into the husband's hands. And it will make no difference that the sum is small.24

14. This remedy in favor of the wife is not confined to cases where others come into a court of equity to obtain the aid of that court in reducing a fund belonging to her to the possession of the husband, or his creditors or assignees. She may file her bill, by next fund, to be decreed such maintenance out of any fund belonging to her, but which the husband, or those who represent his interest, have the legal right to control.25

"Steed v. Calley, 2 My. & K. 52.

"Farie's Appeal, 23 Penn. St. 29; Bason v. Holt, 2 Jones, Law, 323; Wade r. Russell, 17 Ga. 425.

* Brown v. Elton, 3 P. Wms. 202; Lady Elibank v. Montolieu, 5 Vesey,

737.

Scott v. Spashett, 3 Mac. & G. 599; Dunkley v. Dunkley, 2 DeG., M. & G. 390; Marshall v. Fowler, 16 Beav. 249; Walker v. Drury, 17 id. 482; Francis v. Brooking, 19 id. 347.

* Cutler in re, 14 Beav. 220; Kincaid in re, 1 Drew. 326.

Osborn v. Morgan, 9 Hare, 432. The origin of the wife's equity to a settlement is here discussed by the learned Vice-Chancellor, the present Lord Justice Turner, and the cases reviewed. The wife can only waive her right to a settlement by coming into court for that purpose. Id. See also, to the point of the necessity of the wife appearing in court for that purpose, Willats v. Kay, 2 Atk. 67; Milner v. Colmer, 2 P. Wms. 639; Parsons v. Dunne, 2 Ves. Sen.

15. But if the wife be living apart from her husband, and in a state of adultery, a court of equity will make no order in regard to the payment of the legacy, either to the wife or husband; nor will it interpose in any manner to secure a settlement upon the wife out of the legacy; but will leave all the parties to such redress as they may be able to obtain elsewhere.26 But the mere fact that husband and wife live apart without her fault, will afford no impediment to a court of equity decreeing support to her.27

16. These settlements upon the wife are decreed as well for the children of the marriage as for the wife; but it has been held that no equity attaches on behalf of the children alone, until after an interlocutory decree to that effect.28 The question underwent a very careful examination in a recent case 29 before Vice-Chancellor Kindersley, where it was declared that this claim or right of the wife to a settlement for the benefit of herself and children impressed no trust upon the property which could be enforced by a court of equity on behalf of the children, after the death of the mother, unless there had been during the life of the mother some decree of the court recognizing the right, or some recognition of it by way of contract between the husband and wife.30

17. It seems that where no suit is pending to recover the legacy in a court of equity, the executor, in common with other trustees, will be justified in making payment to the husband.31 But where a suit is pending in the courts of equity, either

26 Carr v. Eastabrooke, 4 Vesey, 146; Ball v. Montgomery, 2 id. 191; 2 Story Eq. Jur. § 1426.

27 March v. Head, 3 Atk. 720; Eedes v. Eedes, 11 Sim. 569.

28 Winch v. Brutton, 14 Sim. 379; Groves v. Perkins, 6 Sim. 576; Delagarde v. Lempriere, 6 Beav. 343, 345.

"Wallen v. Auldjo, 9 Jur. N. s. 687.

30

4 Am. Law Register, N. s. 9-12, where we have attempted to give the present state of the law upon the point.

31 Lord Eldon, in Murray v. Lord Elibank, 10 Vesey, 84, 90.

by the husband to compel payment of the legacy, or on the part of the wife to compel a settlement, the right of the executor is thereby suspended, as to the payment of the legacy, until the decree of the court.32

18. And where a legacy is given to the separate use of a married woman, apart from any control of her husband, she alone can give an effective discharge for the same to the executor, and she may maintain a bill in her own name, by next fund, to recover the legacy, her husband having no interest in it. And where two legacies of £250 each were given severally to two French ladies, the wives of French subjects, the court ordered the payment to be made to the legatees.34

19. There seems to be no question of the right and duty of the executor to set off any debt due the estate from a legatee against any legacy which he may be called to pay. But this right of retainer will not extend to an indebtedness created after the decease of the testator, by the legatee giving security to the estate for the indebtedness of other parties.35

20. It has been held that the executor's right to retain upon debts due the estate, as against legatees, is prior to any right of a mortgagee of the legacy.36 But a legatee, too poor to sue, may assign his legacy, and the fact that he does it for less than it is worth, to one who bought it for the purpose of enforcing payment by suit, will not make the transaction amount to champerty.37 And the executor can create no new charges upon the legacy after notice of its assignment or mortgage.39

* 2 Wms. Exrs. 1280; ante, n. 31; Doswell v. Earle, 12 Vesey, 473; Atcheson v. Atcheson, 11 Beav. 485.

* Prichard v. Ames, Turn. & Russ. 222.

*Sutherland v. Young, 5 Law T. N. s. 738.

Smee v. Baines, 29 Beav. 661.

* Willes v. Greenhill, 29 Beav. 376.

* Tyson v. Jackson, 30 Beav. 384. It was decided in this case that where

38

Stephens v. Venables, 30 Beav. 625. In this case, where the executor

21. It is no objection to the executor's right to retain against a legatee the amount of a debt due the estate, that the same is barred by the statute of limitations.89 But it is not competent for the testator, by charging payments against the legatee, as advances, which really were not so intended or understood between the parties, to create a valid set-off against the legacy.40

SECTION XIX.

THE DELIVERY OF SPECIFIC LEGACIES.

1. The terms of a specific bequest have reference, ordinarily, to the time of testator's decease.

2, and n. 4. But a bequest of things in a particular locality will only carry those actually there.

3. Generally, bequest of all of a particular class of testator's estate will have reference to the time of his decease.

4. The executor should collect things specifically bequeathed and deliver them to legatee.

5, and n. 10. Where the bequest is of a certain number out of a larger number, the right of selection is in the legatee.

the executor in his final account charged himself with retaining a particular legacy as trustee, and afterwards paid over the residue of the estate, that he had thereby made himself trustee for the legatee, in such a manner as to preclude his executor from insisting upon the statute of limitations, or lapse of time, as a bar to the claim.

had leased a portion of the testator's property to a legatee, who subsequently mortgaged his legacy, and the mortgagee gave the executor notice of his charge upon the legacy, it was held the executor might retain from the legacy, as against the mortgagee, all rents accruing before notice of the charge, but not those accruing subsequently. But a mere charge upon real estate devised, for the payment of sums of money to others, does not create such an express trust as will not be barred by the lapse of twenty years, where there has been no payment or recognition of the indebtedness. Proud v. Proud, 32 Beav. 234. Mere delay to enforce payment against an executor will not bar the legatee's claim against the estate upon which it is charged, in less than twenty years. Massy in re, 14 Ir. Ch. 355.

Coates v. Coates, 10 Jur. N. s. 532.

10 Hargreaves v. Pennington, 10 Jur. N. s. 834.

§ 61. 1. QUESTIONS have often arisen in the English courts, and sometimes in the American, how far a specific legacy shall be confined to the property which the testator possessed at the date of the will. But the general result of all the cases seems to be, that the language of the will shall be understood with reference to the decease of the testator,2 unless there is something very specific in the instrument, showing, upon a fair and allowable construction, a different intent.

2. But it has often been held, that nothing will pass by the bequest of property, in a particular house, unless it be actually in the house at the decease of the testator, or else be sufficiently identified, as having been intended to be embraced in the bequest, without reference to locality, as where the testator gave his library now in the custody of C, in All Souls' College in Oxford, and afterwards bought several valuable books, which were placed in his library, it was held that the locality was referred to for the purpose of identifying the particular library.5

3. And it has been held that, where a particular security is bequeathed, the interest due at the decease of the testator will pass with the bequest. And in general, under the former English statute, the bequest of a particular class of the testator's property, as "all my debts due," or all my debts due upon "note," or "all my stock" in a certain corporation, if designated by the testator's ownership, as my debts, &c., was held to em

1 Ante, § 59, pl. 11, where the question is considered as to accessions to the bequest of the residue of an estate after it takes effect.

Ante, pt. 1, § 30.

8 Sayer v. Sayer, 2 Vern. 688.

* Beaufort v. Dundonald, 2 Vern. 739. It is here held, that it will not vary the construction where goods had been ordered for the particular place, and the carrier contracted with for the transportation, if they do not arrive until after the testator's decease.

'All Souls' College v. Coddrington, 1 P. Wms. 597.

• Harcourt v. Morgan, 2 Keen, 274.