The opinion of the Court was delivered by
Stroud, J.It, not being stated that the executors assented at any time to the legacies bequeathed to the defendants in the foreign attachment, or that refunding bonds, in conformity with the requisitions of the act of assembly of the 21st of March 1772 “for the more easy recovery of legacies,” have been tendered the executors, the broad question is presented, whether without such assent, and without the tender of a refunding bond, a legacy in the hands of executors is the subject of a foreign attachment under our laws.
It has long been settled that under the custom of London a legacy cannot be attached. Several reasons have been assigned for this exemption, the most prominent of which is, that a legacy cannot be recovered in a suit at law. This, of itself, is a sufficient answer there. With us this reason does not exist; and it is supposed, moreover, that our acts of assembly authorizing foreign attachment are of wider scope in respect to the subjects of attachment than the custom of London. Whether or not this supposition be well founded, it is needless to inquire, since it is obvious that our decision must be governed by the acts of assembly, and not by the custom of London.
The acts of assembly of 1705 and 1789 extend in express terms “ to goods and chattels, moneys, credits and effects” of the defendant in the attachment; and lands, having always been regarded in this state liable for the payment of debt in the same manner as chattels are in England, have been deemed within the equity of these statutes.
Had the executor assented to the legacies, or, sufficient assets being admitted to be in his hands to pay them, had the legatees, *194prior to the issuing of the attachment, tendered adequate refunding bonds, I should have inclined to the opinion that the attachments were well laid. In either of these cases the legatee would have had a legal right to the recovery of his legacy, in the first case, on the authority of Clark v. Herring, 5 Binn. 33, and in the second, by force of the act of assembly of 1772. “ Goods, chattels, credits and effects” are words of large import according to numerous authorities, the chief of which are collected in Dowdel v. Hamm, 2 Watts 61 to 65. But at common law without the assent of the executor, and by our acts of assembly without the tender of a refunding bond, the legatee has clearly no right which he can enforce, and I am unable to see how his creditor can be in a better situation. The exaction of a refunding bond is for the protection of creditors of the testator, whose rights are altogether superior to any claim which the creditors of the legatee may be supposed to have. Take the case at common law, without regard to our act of assembly, and in what light is a legatee to be viewed, having respect to his legal rights under the will? Upon the death of -the testator, the whole of his personal estate, the proper fund for the payment of legacies is, eo instante, by act of late, transferred to his executor. He takes it in trust, primarily for the payment of the testator’s debts. Until these are wholly discharged, it would be a violation of duty in the executor to make the slightest application of the funds of the estate to a legatee as such, or to suffer him to appropriate to his own use any portion of the goods left by the testator, although the subject of a specific bequest to him. Even a debt due to the testator at his death, but released or forgiven by his will, is still looked upon as assets in the event of a deficiency of other estate of the testator to satisfy his debts. Sibthorp v. Morton, 1 Ves. Sen. 50. And the assent of the executor is necessary to consummate the intention of the testator, however fully declared in this respect. 1 Roper 565, 566. This doctrine, in its whole scope, rests upon the sound principle that a debt due by the testator is a right in his creditor of the highest legal efficacy; while a legacy is a mere benevolence in its creation, and can never attain, comparatively, a more obligatory character. This is the very reason assigned by lord keeper Finch in Chamberlain v. Chamberlain, 1 Cha. Cas. 256, why a legacy is not the subject of foreign attachment by the custom of London. “ The legacies,” he says, “ are not due till the debts be paid, and a legacy being paid, remains as a legacy in the hands of a legatee after payment, and hence it is that *195a legacy is not attachable by foreign attachment, as it may work a wrong to the creditors, who are third persons, ant! have no day in court in that suit to interplead.” In Connecticut, Massachusetts and New Jersey, concurrent decisions have taken place on laws, so far as the present inquiry is concerned, precisely like our attachment acts, negativing the right to attach a legacy in the hands of the executor. Wincheil v. Allen, 1 Conn. Rep. 385; Barnes v. Treat, 7 Mass. Rep. 271 ; Picquet v. Swan, 4 Mason's Rep. 443, 463; Taylor and others, Executors v. Woodward, 4 Halsted's Rep. 115, and Thorn v. Wright, Ibid., note.
The decision in New Jersey is entitled to great respect, from the character of the court by which it was pronounced ; especially so, as the law of that state for the recovery of legacies is almost literally identical with our act. It bears date about two years later, and its very title, as well as the whole of its provisions, show that if not borrowed from ours, both must have had a common original. See Revised Laws of Jfew Jersey of 1821, page 50. The same point has been decided there twice. On the first occasion, Ewing, G. J., was not present, and the opinion was delivered by Ford, J., who disposed of the question in this manner. “ A legacy is not aright at common law. It may be reduced to a right by the legatee, if he pursue the provisions of the statute. Revised Laws 50, sect. 3. The right does not vest until the bond has been offered or filed. There is no provision in the attachment act requiring the attaching creditor to give such bond. How then is the executor to obtain the indemnity the refunding bond was intended to afford 1” Thorn v. Wright, 4 Hals. Rep. 115, note. This reasoning applies with precisely the same force in regard to our laws; for the attachment law of New Jersey is, to say the least, as comprehensive in its terms as our acts of 1705 and 1789 combined.
In Barnes v. Treat, the supreme court of Massachusetts denied the right to attach a pecuniary legacy, on the ground that in the hands of the executor it could not be regarded as “ goods, credits or effects.” “ Pecuniary legacies,” it was said, “ in the bands of the executor, are not e goods or effects,’ and it is equally clear that in no proper sense can they be denominated credits. Without the relation of a creditor and a debtor, there can be no such thing as a credit; but a legatee can, in no proper sense, be said to be the creditor of a testator ; nor a testator, merely as such, the debtor of a legatee.” Judge Story gives bis full sanction to this doctrine in Picquet v. Swan, *196before cited. The language of the Massachusetts decision is, that “ a testator is not the debtor of a legateeIt is scarcely necessary to add, that the executor, although he may have sufficient assets in his hands to pay legacies, is not, in legal contemplation, the debtor of the legatee, before assent given to the legacy, or a refunding bond tendered. If he were, indebitatus assumpsit would lie against him, which cannot be pretended without a total disregard of the settled doctrine on the subject, both in England and in this country.
The views of the supreme court of Connecticut accord generally with those expressed in the Massachusetts reports, with the further suggestion of a conflict of jurisdiction with the court of probate — the proper tribunal for the settlement of executors’ accounts.
The obstacle from the leant of a refunding bond, is attempted to be surmounted by the suggestion that this court may, before execution is awarded against the garnishee, coerce the plaintiff to give security to him, similar in character to that which is directed by the act of 1772 to be provided by the legatee. It is a sufficient answer to this, that the executor has assumed his office in reference to a state of the law not merely not identical with this proposition, but which he has a right to say is wiser and better. He has a right to say that a reasonable demand of payment of the legacy, and a convenient opportunity of ascertaining the value of the surety that is offered for a return of the legacy, if circumstances should render that necessary, formed part of the terms on which he assumed his office, and that he ought not to be deprived of these because a stranger has chosen to intermeddle in his affairs. And should it be replied, that the decree of the court will constitute a protection to him from the claims of creditors, whether the security be adequate or not, the objection to the course proposed is rather strengthened that weakened, because the substantial ground for requiring the refunding bond is the security of creditors of the testator, and they are not before the court. Courts, without doubt, interpose occasionally, and exact indemnification before they enforce a proceeding, in itself proper, but which in its operation may prejudice the interests of third persons. But this interference takes place only in cases manifestly beneficial to the party for whom it is exercised, and never in derogation of the rights of individuals not before the court, and otherwise amply protected.
It would have been much more advantageous to the parties, and more satisfactory to us, if the investigation of this question had devolved upon the court of the last resort. It appears to have been *197incidentally before it on several occasions, but not being the very point in the cause, no decision has taken place. I speak of reported decisions, for I can scarcely doubt, that in the long tract of time which has elapsed since the passing of the first attachment law, some pointed intimation in denial of the pretension upon which this attachment is founded, has been given from the bench. Certain it is, that until Boss v. M’Kinney, 2 Rawle 227, the sentiment of the profession in this city, was as settled on this point as on any acknowledged principle of the common law.
This case having been commenced in October 1832, is to be determined by the laws then in force. Looking at the provisions of the “ act relating to executors and administrators,” passed the 24th of February 1834, which must govern all future cases, no room for conjecture or experiment is left. Security is there directed to be given in the orphan’s court, and there only; and therefore the injunction of the 13th section of “ the act to regulate arbitrations,” of the 21st of March 1806, will apply with despotic effect. Wike v. Lightner, 1 Rawle 289, 290. In coming to the conclusion that this attachment cannot be supported, I have not lost sight of the admitted principle of our jurisprudence, wh ich sustains actions founded on rights purely equitable and without the pale of a mere common law forum. This doctrine rests on necessity, to prevent the reproach and injustice of an existing right without a corresponding remedy. The present application is not of this description. The creditor has all the usual remedies against his debtor; and they are ample. If more is desired, let the legislature be applied to, according to the suggestion of the court, in Ammant v. The New Alexandria Turnpike Company, 13 Serg. & Rawle 210. With equal propriety might a sequestration of tolls have been awarded there, as the attachment here be enforced.