Appeal of Miller

Opinion, Mr. Justice Williams:

The first assignment of ei'ror must be sustained. The money to which it relates was not due to the estate of Philip Devore but to Miller, for money which he had paid for his co-executor. The certificate from the Orphans’ Court on which the lien had been entered in the Common Pleas was for a balance shown in the hands of the executors by their second account, which balance, so far at least as Albright was concerned, had been fully paid. When Miller presented it to the auditor who was charged with the distribution of the proceeds of the assigned estate of Albright, and asked a pro rata allowance upon it, he treated himself as subrogated to the rights of the plaintiffs, who had been paid in full, and was himself the claimant. It may be that the auditor would have been justified in rejecting this claim altogether, but he did not. He awarded to Miller his proportionate part of the fund as a creditor of Albright. The money was not due to Devore’s estate, nor awarded to it, but to Miller, and it is a mistake to treat it as assets of Devore in the hands of Miller.

*100 The question raised by the second assignment is more formidable. The first account of the executors of Devore was filed as a joint account, on October 16, 1869, and showed a balance in their hands of $5,818.14. An auditor was appointed to make distribution of this sum who reported a recommendation that $3,000 should be set apart to pay six specific legacies of $500 each, and “ safely invested for the legatees; ” and that the balance should be distributed in accordance with a table submitted with the report. Final confirmation of this report was made on February 14, 1870, and distribution ordered in accordance therewith. The duty to see to the safe investment of the $3,000 for the legatees, was by the decree of confirmation imposed upon both the executors. The decree was not literally obeyed, but the legatees have been fully paid by Miller. The residuary legatees are now seeking to charge Miller with the interest which the fund would have produced, if it had been invested at the date of the decree and kept constantly at interest until the first legatee came of age in August, 1874, and then upon the several balances left due after the successive payments had been made, to January, 1884, when the last legatee came of age. Upon the total of interest so accumulated they charge interest to the date of the decree in March, 1888. If Miller had been in possession of the fund, and had been able to keep it constantly at interest, it might have earned for the benefit of the residuary legatees, something like the amount thus claimed; but it is clear from the testimony, and we do not understand it to be denied, that the money thus set apart was mainly if not wholly in the hands of Albright, the co-executor, when the order was made, and so remained until he became insolvent, and was lost in great part by his failure.

We are then to inquire into the effect of the order of February 14, 1870, requiring the investment of $3,000 for the payment of the six legatees. It was made for the protection of those legatees. In letter and in spirit it looked to a provision for the prompt payment of those objects of the testator’s bounty, as they severally came of age. It was not intended to increase the residuary estate by the accumulation of interest through a long series of years, nor was such a purpose fairly within the power of the Orphans’ Court. The proceeding was one for making distribution. The recommendation of the au *101 ditor was, as we have seen, intended to secure the payment of the six legacies, and the decree of confirmation did not enlarge its scope. It became the duty of Miller, therefore, as well as of Albright, to see that these legacies were paid as they fell due, and the fact that he allowed the fund to remain in the hands of his co-executor and that it was lost by his failure, cannot relieve him from the obligation to pay. This obligation he recognized and has, at considerable loss to himself, discharged. He has made amends for his failure to invest the money with which to pay these legacies, by paying them out of his own pocket, and has thus discharged the duty imposed upon him by the order, not in accordance with its terms, but with fidelity to its object.

The legatees, who were the objects of solicitude to the auditor and the Orphans’ Court, are not complaining and have no reason to complain. They are fully paid. This proceeding is by the residuary legatees, who seek to charge Miller with more than two thousand dollars of interest which it is conceded he never received, but which it is alleged it was his duty to accumulate for them under the order of February 14, 1870. But the residuary legatees were not the objects of that order. The specific purpose in view was security for the six legatees, and the court made distribution from time to time to the residuary legatees, recognizing their right to payment as fast as it could be made. They have no claim upon Miller by reason of the order to invest, because the investment was directed for a specific purpose in which they were not interested, and which has been fully met. His liability to them must depend upon his general liability as executor, and the fact that he joined in the first account with Albright; and, if it is true, as asserted in the paper book of the plaintiff in error, that every dollar of the assets which came to the hands of the executors, except the uncollected notes of Albright given to Devore in his lifetime, has been accounted for, his general liability has been fully discharged. But our question relates only to his liability for the interest upon an investment that was never made, though directed for a special purpose to which the residuary legatees were strangers. We hold that he is not liable by reason of the order of February 14, 1870, because that order imposed no duty on him relating to or for the benefit of the *102 residuary legatees, but was made for the benefit and protection of the six legatees who were, at that time, under age, and because that order has been substantially obeyed by the actual payment in full of each of said legatees as he or she became entitled to payment. The purposes of the order having thus been fully met, the liability of the executor, Miller, to the residuary legatees, must depend not on the order for investment, which is functus officio, but on the general principles regulating the liability of executors. If Miller has not fully accounted, or if any recognized basis of liability exists, his liability must be made to appear in the ordinary manner.

The second assignment of error is sustained. The third necessarily follows the second.

The decree of the Orphans’ Court is reversed and record remitted.