by John Marshall

“ If an unreasonable use be made of the power, 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. ”

“ The executors resist the demand, on the principle that the bonds for which the suit is instituted, were required to pay the debts and legacies due from the testator, and to raise the 10,000 dollars to replace the buildings on lots 6 and 7, which were consumed by fire. They also contend, that their testator has submitted the construction of his will, absolutely, to their judgment, and that their decision against the claim of the legatees, is final. ”

“ This also was a specific legacy; and after being vested, stands, we conceive, on equal ground with other specific legacies.
These bonds do not constitute the fund on which the testator charges these 10,000 dollars, in the unlooked for event that the surplus of his estate should not be sufficient to raise it. He does not charge this sum on the principal, but on the profits of his estate; and the whole is to be kept together in order to raise it. It is obvious from the whole will, that these bonds do not constitute a part of that surplus, comprehendings debts ”

“ 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. ”

“ The rights of each individual depend upon the number who are entitled, and this number is fact, which must be inquired into, before the amount to which any one 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, that decree would not bind persons who were not parties. The case cannot be distinguished from the rule which is applied to residuary legatees. ”

“ J. Maxwell, executors, and Ann Pray, executrix, do pay to the said complainants, the sum of twelve thousand one hundred and eleven dollars. 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 ”

“ There is no sufficient evidence, on which to found a decree for any specific sum.
2. The necessary parties were not before the Circuit Court.
3. The proceeds of the three bonds of John J. Maxwell, were well applied to the payment of debts and legacies, and among others, to the payment of the contingent legacy to Ann Pray.
4. The decision of the executors, is the will of the testator, by the express provision of the will; and cannot be questioned by the legatees. ”