Robins's Estate

Opinion by Mr. Justice Williams,

These appeals are from the same decree and should be considered together. They involve, first, the liability of the executors for the payment of a debt of the existence of which they had knowledge prior to the settlement of their account; and next, the liability of the legatees to refund to the executors under the peculiar circumstances of this case. These are substantially as follows, Thomas Robins, the testator, died on the 13th of April, 1882. His will was probated on the 19th of April. His son, William B. Robins, one of his executors, had been previously appointed committee for Ella J. Robb, a lunatic. His father the testator, was surety upon his bond. Within three months after the probate of the will the executors paid $260,000 to the legatees by way of distribution. About nine months after-the death of the testator they filed their account as executors, and filed therewith a schedule of the distribution of the estate made by them. This account was finally confirmed and adjudicated in the orphans’ court on the 10th clay of April, 1883. About nine years thereafter, in the year 1892, William B. Robins absconded, having previously embezzled a portion of the estate of the lunatic, Ella J. Robb. The Girard Life Insurance, A. & T. Co. was thereupon appointed committee for the *634 lunatic in his stead and immediately brought suit upon his bond. Judgment was recovered in this action in April, 1893, for $7,279.89. A petition was thereupon presented to the orphans’ court for an order on the executors and legatees of Thomas Robins, requiring them to pay said judgment. This, it will be seen, was about ten years after the final confirmation of the account and nearly eleven years after the payments made to the legatees. No refunding bonds or other obligations had been taken by the executors from the legatees when distribution was made to them. Upon these facts the questions of liability are raised. We concur in opinion with the learned orphans’ court that the executors are liable. It is well settled that an administration and distribution account cannot regularly be blended; especially is this true when the account is not only stated but finally confirmed within one year after the death of the testator: Yundt’s Estate, 6 Pa. 35 .

Payments made by way of distribution are not part of an administration account: Rittenhouse v. Levering, 6 W. & S. 190 . Auditors appointed to settle an administration account have no authority to report distribution. The business of an executor or administrator is to settle the estate. After the settlement which ascertains its amount comes its distribution, among those entitled to it. When distribution is made by the executors, they are required by the 47th section of the act of February 24, 1834, to take refunding bonds. This is for their own protection, as well as for the protection of claimants whose demands against the estate may afterwards be made apparent. The character of the security to be given by distributees is specifically described in section 41, which provides that “ no person shall be entitled to receive any share in the distribution until he shall give sufficient real or personal security to be approved of by the orphans’ court having jurisdiction as aforesaid, in such sum and form as the said courts shall direct, with condition that if any debt or demand shall afterwards be recovered against the estate of the decedent, or otherwise be duly made to appear he will refund the ratable part of such debt or demand and of the costs and charges attending the recovery of the same.” In this case, as we have already seen, the distribution was in fact made within the year, and before the settlement of the executor’s account, without taking refunding bonds, *635 and without the authority of the orphans’ court. Under such circumstances the confirmation' of the administration account with the schedule of distribution attached must be presumed to have been made, so far as it affects the schedule, upon the presumption that the executors having made distribution on their own authority had protected themselves by a careful compliance with the act of 1834, by obtaining from the distributees security against just such a contingency as has happened. The order of confirmation so made will not protect the executors against the consequences of their failure to discharge their duties in accordance with the law. One who makes payment in accordance with a decree of the orphans’ court, stands upon a very different footing, from one who pays upon his own judgment, and when he pleases. In the latter case the executor takes the responsibility, and a mere return of such payments attached to his account with a final decree of confirmation of the account will not protect him in a case like the present: Ferguson v. Yard, 164 Pa. 586 ; Carson v. McFarland, 2 R. 118 .

The confirmation of an executor’s account is a conclusive decree as to such matters only as are properly embraced within it. It is not conclusive as to matters not so embraced: Leslie’s Appeal, 63 Pa. 355 . The laches of creditors will not excuse the executor for not securing refunding bonds, but his failure to do so will amount to a devastavit and render him liable to creditors for the amount so paid out by Mm: Jones’s Appeals, 99 Pa. 124 ; Montgomery’s Appeals, 92 Pa. 202 ; Whelen’s Appeal, 70 Pa. 410 ; Scott on Intestate Law, 430. So much of the decree appealed from as imposes liability upon the executors is therefore affirmed. But the legatees are in a very different position. The money received by them was the voluntary payment of the executors. They gave no refunding bonds: Miller v. Hulme, 126 Pa. 277 . If they were under obligation to refund, that obligation must rest upon a contract to be implied from the nature of the transaction, and the statute of limitations would apply to it, as to all other simple contract obligations. Their liability is to be determined upon our own statutes, and decisions. From these, it is clear that the right of the executor to call upon the distributees to refund stands on no higher ground than the right of any other creditor to enforce an implied contract. Whether this creditor, if unable to make his money from *636 the executors, will have any remedy over’ against the legatees is not now before us. His prayer for relief asks first, that the executors be directed to pay, and second, that the legatees “ named in the will of said Thomas Robins show cause why they should not refund and pay to the said executors funds sufficient to enable said executors to pay said judgment.” The second of these prayers for relief we unhesitatingly refuse' on the facts of this case. The record is remitted to the orphans’ court for the purpose of the enforcement of the decree against the executors. As to the legatees, the petition is dismissed at the cost of the petitioners.