The bill was filed by the legatees under the will of Daniel Caldwell, deceased, for the purpose of obtaining a decree of this Court, requiring Daniel Caldwell, executor of the said Daniel Caldwell, to pay over to them certain moneys which had been deposited in 1842 by the said testator in the Provident Institution for Savings, in the City of Boston, in the name of Daniel Caldwell, trustee for Richard Caldwell, which, with interest, amounted to $1666.76, when it came into the hands of Daniel Caldwell the said executor.
The respondent filed his demurrer to the bill, stating as his first cause of demurrer that the complainants had a plain and adequate remedy at law; it being urged by counsel for the respondents that the enactment of statutory remedies in America and the establishment of statutory courts of probate, have either taken away the jurisdiction of courts of equity over administration suits, or rendered them practically obsolete, so that the jurisdiction will not be exercised unless rendered necessary by some of the special heads of equity jurisprudence, such as fraud, etc.
It will not be necessary to go outside of our own State to find decisive authority for the determination of the questions raised by this first ground of demurrer. It is of course, not denied by counsel for the respondent that at common law it was a very important part of the exclusive jurisdiction *99of the English Court of Chancery to hear and determine suits for the recovery of legacies and for distributive shares of the personal property of an intestate, and when the jurisdiction of the High Court of Chancery in Great Britain was conferred upon the Colonial Courts of Common Pleas by our early colonial statutes, this became an important part of their exclusive jurisdiction, and so continued to be until jurisdiction was given by Act of March 31, 1764, 1 Del. Laws, 408, to the Courts of Common Law, to entertain a suit against an executor for a legacy due.
This act, passed during the term of John Penn as Lieutenant Governor of the Colony, clearly recognized the existing jurisdiction of the Court of Chancery, reciting that “Whereas the proceedings in the Courts of Chancery, within this government, for the recovery of legacies are tedious and expensive.” It then enacted that, “from and after the publication of this Act, it shall and may be lawful for any person or persons, to whom any legacy, or bequest of any sum or sums of money, or other goods or chattels, have been, or may be, made, by the last will and testament of any other person or persons legally made, to commence, sue and prosecute, an action of debt, detinue or account render, as the case may require, for such legacy, after it becomes due, in any of the Courts of Common Pleas within this government.”
There was no further legislation until a general statute for the regulation of probate and administration was passed February 16, 1829, entitled “An Act Concerning the Probate of Wills and the Administration of Personal Estates of Deceased Persons,” 7 Del. Laws, 465, 483, ch. 28, sec. 16, which provided that an action of assumpsit might be maintained against an executor or administrator for a legacy or distributive share.
The Act of 1764 is found in the Digest of 1829, p. 370, where it is provided that the legatee may sue in “debt, detinue or account render, as the case may require.” And the Act of 1829, to be found on page 217 of the same Digest, provides in sec. 16, p. 228, that: “An action of assumpsit may be maintained against an executor or administrator for *100.a legacy or distributive share.” The latter statute does not refer to the former, and it presumably left it open at that time to the suitor to adopt any one of the forms of action mentioned in both acts. This seems to be a necessary conclusion from the language of the statute providing for the publication of the Digest of 1829, and the statement of the preface, in which Judge Hall, its editor, states “that this edition shall contain the law, as it stands in force upon our Acts of Assembly.”
In the Revised Code of 1852, the action of assumpsit was alone designated as the remedy at law in this class of cases. Rev. Code (1893) 680, sec. 40.
In the act of 1829 a legacy either directly or indirectly the subject of a trust was excluded from the grant of jurisdiction; but there was no such exception noted in the Act of 1764; doubtless it was deemed unnecessary.
It is, of course, obvious that the question here touched upon as to what action at law will lie, cannot arise in this Court and is here referred to only as part of the historical statement of the legislation on the subject.
Can it be successfully contended that either the Act of 1764 or the Act of 1829 does more than provide a concurrent remedy for the recovery of a legacy in addition to that which had always existed, which, as above stated, was established in the early colonial period, and was subsequently adopted by the State, when the present Court of Chancery was created by the Constitution of 1792, and continued by the Constitutions of 1832 and 1897? Clearly not.
It might be sufficient to rest alone upon the language of the statutes of 1764 and 1829, which plainly shows that they only established a concurrent remedy, intending to make available a more speedy and easy method of recovering a legacy, without interfering with the right of a suitor to proceed by bill in equity if for any reason he were advised so to do. With the same end in view, the proceeding by snre facias on a mortgage was provided, and is generally used, although not interfering with the right of a mortgagee, at his *101option to file a bill in equity for foreclosure. Giles vs. Lewis, 4 Del. Ch. 51; Fox vs. Wharton, 5 id. 200.
It may be not inappropriate, however, to review the series of cases in our Court of Chancery relating to this subject.
At the time of the passage of the act of 1829, the jurisdiction in equity to make a decree against an executor for the payment of a legacy at suit of the legatee was habitually exercised and was unquestioned. It was not considered to be affected by the statute of 1764 in the colonial period, which was recognized as the law of the State in Killen, et al. vs. Adams, Ex’r., 1 Del. Ch. 185, where the statute was invoked by no less an authority on our statute law, than Judge Hall, who within a decade was chosen to codify for the first time, and unaided, the statute law of the State. It was recognized by no less an authority on equity law and practice than Chancellor Ridgely, as being in full force, he merely holding in that case that it did not sustain the particular point made.
The right to file a bill in equity against an executor for the recovery of a legacy was unquestioned,and was habitually recognized in this State between the time of the Colonial Act of 1764 and the Act of 1829. Where the question was whether a legacy was charged on the lands, the suit was, of course, necessarily brought in the Court of Chancery, but disregarding all such suits in the earlier -Chancery Reports, many cases are found in which the bill was filed to recover legacies payable out of the personal estate.
The following may be considered all the relevant cases.
In West and Wife and Mary Turner’s Admr. vs. Evans, Adm’x., 1 Del. Ch. 122, the bill was filed on behalf of two residuary legatees, Caty West and Mary Turner’s Adm’r. Caty West and Mary Turner, deceased, were the children of Riley Ake, and Lemuel West, the husband of Caty West, was joined as complainant.
The defendant’s intestate was executor of the will and also guardian of the legatees. Before the filing of the bill a suit at law had been brought by the complainant West and *102wife on the guardian bond given by the defendant’s intestate. No suit had been brought on the guardian bond for Mary Turner, deceased.
The bill was filed to recover the residue of the personal estate of Riley Ake, deceased, which was bequeathed to his daughters, Caty and Mary, and also to recover rents and profits of their lands, which went into the hands of Eli Evans, the defendant’s intestate, as their guardian.
No question whatever was raised and no doubt suggested as to the jurisdiction of the Court in such case, but on application of the solicitor for the respondent, Chancellor Ridgely entered an order requiring that West and wife should be put to their election whether to proceed in this suit or at law on the guardian’s bond.
The complainants having elected to proceed on the guardian’s bond, the bill was dismissed touching the matters of the guardianship, and with such costs against the complainants as had accrued in relation to matters of the guardianship.
In Kirkwood vs. Mitchell, Adm’r., 1 Del. Ch. 130, a bill in equity was filed to recover a legacy and the respondent demurred, assigning for cause, inter alla, “that the complainant hath a remedy at law.” The Chancellor was of opinion that the legatee might sue, in this Court, the personal representative of the executor who had received assets of the testator sufficient to pay the legacy.
The demurrer was over-ruled and the respondent ordered to answer, and this order was affirmed at the June Term, 1820, of the High Court of Errors and Appeals.
Afterwards the case came to a hearing before the Chancellor at the March Term, 1821.
In Killen, et al. vs. Adams Ex’r., 1 Del. Ch. 184, above referred to, a bill in equity was filed to recover from the respondent as executor a legacy of Fifty Dollars bequeathed to each of the complainants to be paid within one year after his decease. The respondent filed a plea that no tender had been made of security to refund in case of deficiency of assets as *103provided by the statute in a suit at law for a legacy. 1 Del. Laws, 410, sec. 6. The case came before the Chancellor on the plea, and Judge Hall, for the respondent, insisted that the statute which requires, in a suit at law for a legacy, that security be given or tendered to refund in the event of deficiency of assets, should be followed in a Court of Chancery; that Equity follows the law and adopts its principles in relation to the same subject.
Chancellor Ridgely said, “Were the Act of Assembly to regulate the proceedings in this Court, it would defeat the powers of the Court; for in all cases, where the security was given according to the Act, the Court would be obliged to decree a payment, without the power of imposing any terms, however proper, just as a court of law would be. Already, the Court may compel a complainant to give security to refund, or to indemnify the executor, and it is not necessary to adopt by analogy any new power or authority under the Act. That Statute applies strictly to cases at law, and gives the courts of common law a jurisdiction which they did not possess, but which this Court possesses more amply than is given by the Act to courts of law. By the Stat. 2 Geo. 2, c. 23, sec. 23, an attorney cannot bring an action unless he has delivered his bill one month; but he may take out a commission of bankruptcy for fees, while his bill is under taxation. The reason, Lord Eldon says, is that a commission of bankruptcy, being a prompt remedy, the object would be defeated by waiting a month. 15 Ves. Jr. 479, 480, 487, 489. To him the remedy in this Court being more complete, an adoption of the Statute would narrow the power of the Court, so that in all cases complete justice might not be done.”
The plea was over-ruled and the defendant ordered to answer.
In St. James’ Church vs. Walker, Adm’r., 1 Del. Ch. 284, the bill was filed for a legacy and the case was heard on bill, answer and proofs. The point principally discussed by the Chancellor in his opinion was relative to the effect of a foreign nuncupative will, and the probate thereof, but no question *104was suggested with respect to the jurisdiction of the Court in such cases.
The cases I have cited were decided during the period between the enactment of the statute of 1764 and that, of 1829, but in 1871, in Wingate vs. Parsons, et al. Ex’rs., 4 Del. Ch. 117, the bill was filed by the husband and wife against the executors of the wife’s father to recover a legacy to her.
In that case, which was argued by the late Judge Cullen and the late Attorney General Moore, Chancellor Bates delivered an elaborate opinion upon the particular questions raised, but the jurisdiction of the Court in such cases was not questioned either in the argument or opinion.
This review of our own statutes apd decisions manifestly settles the question of jurisdiction beyond the possibility of a doubt, so that the first cause of demurrer must be over-ruled.
The second cause of demurrer my examination of the question has determined me to sustain, but I did not consider that this conclusion relieved me of the necessity of carefully considering and passing upon the first cause of demurrer, because it goes to the jurisdiction, and, manifestly, it is incumbent upon the Court to determine a question of jurisdiction whenever raised, whether other objections to the bill are sustained or not.
Furthermore I have been at great pains to examine the statutes of both the State and the Colony, as well as the decisions of this Court from the beginning of our reports, because in this case the question of jurisdiction raised involves the effect of legislation upon the common law jurisdiction of this Court,- and the mutual relations of the several jurisdictions of the courts of law and equity in this State.
The second ground of demurrer is for defective parties, in that neither Richard Caldwell, cestui que trust, of Daniel Caldwell, deceased, nor any personal representative of the said Richard Caldwell, is named as a party, and it is on this ground alone that the demurrer must be allowed.
*105It can hardly be seriously questioned that Richard Caldwell, the cestwi que trust, is a necessary party, if living, and, if he be dead, that the fact should be alleged and his legal representatives be joined as respondents.
The case of Farmers’ Bank vs. Polk, et al., 1 Del. Ch. 167, was the case chiefly relied upon by the counsel for complainant. It was there held that although the rule is that all persons materially interested should be parties to the suit, yet “if some of the persons interested reside qut of the jurisdiction of the Court, or cannot for any other reason be brought before the Court, and the fact is charged, that forms an exception. An impossibility cannot be required.”
In the present case, however, the single allegation of the bill on this point, is that since the time of the first deposit on account of Daniel Caldwell, trustee for Richard Caldwell, there has been found no proof of the existence of said Richard Caldwell. Assuredly, this is not sufficient to take the case out of the well founded and well settled rule of courts of equity, that all parties interested in the subject matter must be brought before the Court, and it certainly is not such an allegation as would bring it within the principle of the exception formulated by Chancellor Ridgely, in Farmers’ Bank vs. Polk, supra.
With regard to the third and last cause of demurrer, that the complainants have no cause of action, because the property in question did, on the death of the cestm que trust, es-cheat to the State, it is sufficient to say that the point made by the complainants’ counsel that, in order that property should escheat to the State, it is necessary that the last owner should die intestate, and without heirs, or any known kindred Rev. Code (1893) p. 620, is obviously well taken, since not only does no such affirmative allegation appear in the bill, but such an allegation would be inconsistent with the whole tenor of the bill and all its allegations with reference to the said Richard Caldwell.
Inasmuch as I shall give complainants leave to amend their bill, if they so desire, it has seemed proper-to pass also upon this cause of demurrer.
*106I shall allow the demurrer, for the second cause only, with leave to complainants to amend the bill.
On December 8, 1896, the complainants not electing to amend their bill, a decree was entered allowing the demurrer with costs, to be paid by the respondent out of the trust fund in his hands.