mitted, that the legacy had been given as stated; that it had been received and invested by the trustees; that her testator had been the surviving trustee; that he, as such, believing he had the proper authority to do so from the parties interested, had made sale of the English stock, in which the legacy had been invested, and had the proceeds, amounting to $8,273 33, remitted to him here; and that, on the 24th of March, 1819, he invested $3,828 88, part thereof, in stock of The City Bank of Baltimore; and the further sum of $4,444 44, other part thereof, he had loaned to James Clerklee, on a mortgage of real estate; and the residue, amounting to £212 Os. Od., sterling, remained in the hands of Wentworth, Chaloner & Co., of London, bankers of her testator, who claimed a right to retain it in discharge of a debt due from him. That she has not yet been able to settle up the estate of her testator, and that there are considerable debts now due to the same which are still unpaid; and that the assets now in her possession are insufficient to discharge the debts due by the testator.' Various other matters were set forth and relied on in this answer which it will be unnecessary to notice here, as all the material allegations of the parties, and the circumstances of the case are fully stated by the Chancellor in his opinion.

The plaintiffs by their petition alleged, that the testator of the defendant Eleanor Dawson, had been a trustee for the benefit of them and others interested in the legacy; that as such he had received £2,406 14s. 2d, sterling, and withheld it from them, as did the said Eleanor since his decease; that the said Eleanor Dawson had, under oath, settled a final account in the Orphans Court, whereby there appeared to be a balance over and above the payment of debts of $13,357 44. But by the account so referred to and exhibited with the petition, headed as the first account' of this executrix, passed on the 22d of January, 1823, the concluding allowance in which is in these words: Retained by this accountant, being the residue of the deceased's estate, according to the last will and testament of the deceased, $13,357 44.' Whereupon it was prayed, that the defendant Eleanor Dawson, might be ordered to bring that sum into court to await the final decree.

On the 27th of February, 1826, it was Ordered, that she bring in that sum of money as prayed, on the 3d of April then next, or shew cause; provided a copy be served, &c.

On the 13th of July, 1826, Eleanor Dawson filed her answer, without oath, to this petition, shewing for cause, that the plain

CONTEE v. DAWSON.

The plaintiff may set the case down for hearing on bill and answer; but, in doing so, he admits the truth of every fact set forth in the answer.-Where an applica tion is made, grounded on admissions in the answer, for an order on the defendant to bring money into court, the whole of his answer must be taken together and for true. An order confirming an auditor's report is a judgment of this court, final in regard to the matter to which it relates.-The foundation for an order to bring money into court, must be found in the direct progress of the case, and be such as is not open to be removed or explained away.

No direction in a will, nor any mere agreement to refer a controversy to arbitration can oust the proper courts of justice of their jurisdiction in the case.—There may be cases, where the bringing of a suit by a legatee is prohibited, with a bequest over, that the bringing of a suit will be a forfeiture.—It is sufficient, that the husband alone be made a party, to shew, that he has obtained satisfaction for the chose in action of his wife.-The answer of a defendant, resident out of the state, is a judicial record of this state, and must be authenticated accordingly as such.In accordance with the spirit of the federal constitution, it is proper to go as far as may be safe, in giving credit to authentications coming from other states of the Union. An answer, by consent of the plaintiff, may be received without being sworn to; and will be allowed to have full effect as regards co-defendants.—A party cannot avail himself of proof, in regard to any matter not alleged.-An executor must expressly aver an insufficiency of assets, otherwise he cannot prove it, and so avail himself of the fact.

How and when, under the peculiar expressions of a certain will, the legacies thereby given will vest.—A trustee held liable for all the consequences of a violation of his trust. Those who have only a possible, or expectant interest in a legacy, can give to a trustee no direction as to its disposition. Those who mislead or practise a fraud upon a trustee, can claim nothing of him.-The court must decree between co-defendants, so as to close the case. Contingent legacies ordered to be brought in and invested, to await the contingency,

Where a sum is directed to be invested, and the investment is given to one for life, with remainder over, the interest which accrued before the investment, was held to be a part of the sum directed to be invested. Where it becomes necessary to determine the day on which an event happened, and the proof only designates a space of time within which it happened, the middle of that space is assumed as the day on which it took place.

THIS bill was filed on the 15th of November, 1824, by Edmund H. Contee, and Eleanor his wife, and Josias Hawkins, and Caroline A. his wife, against Eleanor Dawson, Philip A. L. Contee, Elizabeth Clerklee, Margaret Clerklee, and Sarah E. Clerklee, for the purpose of recovering a legacy given by the late Ann Russell, of England, to the children of Margaret Russell Clerk, which the plaintiffs alleged had come to the hands of the defendant Eleanor Dawson as executrix of William Dawson, the deceased, who was the surviving trustee.

The several defendants answered. And the executrix Eleanor Dawson, in her answer filed on the 27th of September, 1825, ad

mitted, that the legacy had been given as stated; that it had been received and invested by the trustees; that her testtr að ver the surviving trustee; that be, as such beleving te hat e m per authority to do so from the parties imereset, at nate the lẺ the English stock, in which the legacy hat beer met and lat the proceeds, amounting to $5.273 33. remiter

that, on the 24th of March, 1519, he invested $5

thereof, in stock of The City Bank of Baltimor· zi te sum of $4,444 44, other part thereof, EL DERE Clerklee, on a mortgage of real estate, and the res

to £212 Os. Od., stering, remanet te za Chaloner & Co., of London banker

a right to retain it in discharge of a cer DE HI DE

has not yet been atue to see the enze IT 201

F

that there are considerable

21

On the 13th of July, 1826, EL T without oath, to this petition, s

tiffs have no interest in the money called for; that the trustees, of whom her testator was the survivor, were only to be held answerable for gross negligence; and that he had transferred the fund from England to this country and invested it here as stated in her answer to the bill; in doing which he had the assent of those interested, and was guilty of no neglect or default; that she had not assets sufficient to pay the debts of her testator; and protesting against the right of the plaintiffs to travel out of the admissions in her answer to their bill; she referred to her petition to the Orphans Court, and to an order passed on the 10th of July, 1825, allowing her account to be opened for correction, and for rendering a further account, under which authority she had accordingly passed a second account on the 28th of December following, in which she charged herself with some additional receipts and the sum of $13,357 44 retained, as mentioned in her first account; and then obtained an allowance for cash, as per account proved and passed, to the amount of $17,777 78; and several other smaller items; and that she was only bound to pay away the assets of her testator as they came to her hands in the due course of administration.

By agreement, the hearing of the matter of this petition of the plaintiffs had been postponed to the 13th of July; but was not brought before the court until some time after.

6th September, 1826.-BLAND, Chancellor.-The petition of the plaintiffs standing ready for hearing, the solicitors of the parties were fully heard and the proceedings read and considered.

Having lately had occasion maturely to consider the nature of an application to order money to be brought into court before the final hearing, (a) it will be here unnecessary to give any further explanations in regard to it. The counsel for the petitioners seemed to think, that the court had, in that case, gone further with the doctrine than had been done in any of the English cases; but, in what particular is not perceived. The English cases are grounded upon an interest in the plaintiff, and an admission in the answer itself, or an admission by reference to a schedule, or to books or documents; or upon an auditor's report confirmed; because the confirmation of such a report is a judgment of the court. In the late case in this court, the admission was accompanied by a reference to a deed, the construction of which belonged to the court,

(a) McKim v. Thompson, 1 Bland, 155.

and which was found to be unambiguous; and to leave no room for the introduction of proof as to its true intent and meaning.

It is a general rule, that a plaintiff may, at any time, without or by withdrawing his general replication, set the case down for final hearing, on bill and answer. But if he does so, he thereby necessarily admits the truth of all the facts set forth in the answer; as well those stated as directly responsive to the bill, as all those new facts and circumstances, pertinent to the matter in controversy, which have been introduced into it by way of avoidance, or as a defence. The reason and utility of this rule are obvious. The plaintiff cannot be permitted to deprive the defendant of the means of sustaining his defence by proof; but if he admits the truth of all the facts alleged by way of defence in the defendant's answer, he does not do so. Because a defendant cannot be expected or allowed to make his defence stronger, or better than he himself has stated it; and, therefore, if the plaintiff admits the truth of all those facts set forth as constituting that defence, the defendant can have no cause to complain, nor any pretext for asking to be indulged with any further delay to the prejudice of the plaintiff; since the collecting of proofs in such case must be altogether unnecessary. (b)

So, in cases of this kind, where the order is proposed to be grounded on the admissions of the defendant. The truth of all the facts alleged in the answer must necessarily be conceded; because the defendant cannot have his answer garbled, or be deprived of the means of sustaining his defence by proof, if the facts alleged by him are denied; and because it is only by the plaintiffs' granting the truth of the facts alleged by way of defence, that it is rendered wholly unnecessary to adduce proof; and the case becomes so situated, as to be susceptible of being fairly and at once presented to the court, upon facts not liable to be contradicted or explained away at the hearing.

From some expression which fell from the counsel, in the course of the argument, I deem it proper, however, to remark, that in declaring, that all the allegations of the defendant's answer, in cases of this sort, must be taken to be true, I mean the allegations of pertinent facts, out of which legal or equitable principles may

(b) Grosvenor v. Cartwright, 2 Ca. Chan. 21; Barker v. Wyld, 1 Vern. 140; Wrottesley v. Bendish, 3 P. Will. 237, note; Legard v. Sheffield, 2 Atk. 377; Wright a. Nutt, 3 Bro. C. C. 339; Beam's Orders, 29, 180; 2 Ev. Potheir Ob. 137.