Sparhawk v. Administrator of Ozias Buell

Phelps, J.

dissenting. The importance of this case, and the novelty of many questions involved in it, justify, in my judgment, the expression of my individual opinion. Whatever respect I may entertain for the judgment and opinion of my brethren, my own sense of duty will not permit me to acquiesce in a decision, which I am convinced is not sustained by sound legal principle, and which, in my opinion, does manifest injustice in the case in which it is pronounced.

*84 The outline of the case under consideration, I understand to be this:

Wm. C. Harrington died many years since, having made and published his last will and testament, in which he bequeathed a special legacy to the plaintiffs, under the denomination of the children of Phineas Lyman, and similar legacies to the children of certain others of his relatives ; and constituted his two sons, Wm. and George, his residuary legatees. By the same will, he appointed the said Phineas Lyman and the defendant’s intestate, Ozias Buell, with others, the executors of his will. The trust was assumed by the persons designated in the will. Lyman possessed himself of a portion of the assets, which were not only sufficient to pay the particular legacies, but left a considerable surplus for the residuary legatees. The debts of the testator having been paid, the executors remained, for some years, trustees for the legatees, who wmre minors, and having no legal guardians, the legacies could not be paid to them by the executors. In this state of things, the executors petitioned the court of Chancery to be relieved of their trust, and that court decreed payment of the particular legacies to the parents of the particular legatees, upon the parents giving bonds for the performance of their trust, in a manner prescribed by the court. This condition was complied with by all the parents, except Lyman, the father of the orators, and the several legacies paid to them by Buell from the assets in his hands. Lyman claimed the right of retaining the legacy to his children, out of the assets in his hands, and did so retain. A settlement was then had, in the probate court, of the executors’ account, on which occasion the executors rendered and presented, in the first instance, separate accounts, but by direction of the probate court, they were afterwards consolidated. In these accounts Lyman claimed a credit for the amouut of the legacy to his children, which was allowed, and Buell claimed a similar credit for the several particulár legacies paid by him, in pursuance of the decree in Chancery, which was also allowed. The residuary legatees then preferred their claim for the surplus, which was duly paid to them by Buell, and their claim was satisfied. At this period, nothing remained in the hands of either executor, except the amount of the orators’ legacy, which was in the hands of Lyman, he having retained the amount out of the assets in his hands. Up to this time Lyman was solvent, and in good credit. Buell, having accounted *85 for all the assets in his hands, was desirous of having the business so adjusted, as to secure him from all future claims, and probably, at his suggestion, two of the orators, on arriving at full age, executed to him their receipts for their portion of the legacy. It is not supposed that any thipg was in fact paid to them on that occasion, but the object ol tjiose receipts was to sanction the appropriation already made of the fund in Lyman’s hands, and relieve Buell from all further claims. Subsequently to all this, Lyman became insolvent, and Buell died. The estate of Buell was represented insolvent, and regular proceedings were had under a commission of insolvency, the time for the presentation of claims expired, and the commissioners made their report in due season. The claim of the orators was never presented nor allowed, but this bill is now preferred against the representative of Buell, to obtain payment of the claims, upon the alleged ground of the insolvency of Lyman, and a supposed devastavit or breach oí trust in him. This is an outline of the case. I do not deem it necessary to go further into the details of the transaction here. Certain particulars, which may be important, as bearing upon certain points in the case, will be mentioned in their order.

The main question, and that upon which, in my judgment, the case turns, is, whether Buell can be made responsible for the default of Lyman. It is admitted that Buell has accounted for every farthing which came to his hands, and it is further admitted that Lyman has retained the amount of this legacy, for which he has never accounted; that all other claims upon the estate ol Harrington have been satisfied, but, it is alleged that this legacy has never been paid, and that Lyman is utterly irresponsible. Upon these premises, there can be no possible ground of recovery against Buell, or his representative, unless it be a supposed liability resting upon him for the delault of his co-executor.

It is obvious, then, that there is noxpeculiar equity in the orators’ case. The claim against Buell is in the nature of a claim against a surety, and rests upon the footing of strict legal right.

It is conceded by the orators, and, if it were not, it requires no argument at this day to establish the position, that the trust of co-executors is not necessarily joint. At common law, their liability is several. Each is liable for his own acts alone. This is too manifestly the current of all authority to admit of debate.

*86 There are cases, in which an executor has been held liable for default of his co-executor, but, in all these cases, the party charged has been accessory to the default, or chargeable with some delinquency in regard to his trust, which either induced or afforded opportunity for the default complained of. The mere fact, that one executor possesses himself of assets, and his co-executor did not prevent it, and possess himself of the same funds, is not enough; but the party to be charged must be guilty of some breach of trust, negligence, or disregard of duty, before he can be made liable.

It is insisted, “ that if one executor possesses assets and passes them into the hands of a co-executor, who wastes them, both are liable.” This doctrine requires ^ome qualification. It is doubtless true, that if one executor possess assets applicable directly io the purposes of the trust, and passes them into the hands of a co-executor, without good reason or sufficient purpose, it is a breach of trust in not making the application himself, and he is liable. But cases may and do exist, where such a transfer of assest is necessary and proper, and where the proceeding is not only consistent with a conscientious discharge of duty, but in pursuance of the original design of the party creating the trust. I shall endeavor to shew presently, that this is such a case. So it is said, “ that if one assents to a disposition of assets by the other, which proves a mis-application, both are liable.” There • is the best of all possible reasons for this, viz. that both are equally guilty. So, “if two join in a receipt for money, which comes to the hands of one who wastes it, both are liable.” It is undoubtedly true, that when they choose to act together, in such a manner as to render the proceeding a joint act, it is the act of both, and both are responsible for it. But it remains to be ascertained, how, and in what manner, the transaction in question can be made a joint proceeding, and the default in question, the default of both.

Before proceeding to apply the general rule to the present case, it will be well to notice another position, viz. that the executors, having executed a joint bond, are of course liable for the acts of each other. To sustain this position, Swift’s Dig. p. 449, is cited, and also Brazier v. Clark, 5 Pick. 96 . Swift says merely that they may be made liable in an action on the bond, and the case in Pickering goes no further. So far as the joint undertaking by bond goes, they are unquestionably joint *87 ly responsible, and so would be a surety who executes the bond with them, although not a party to the trust. By executing joint bond, they become sureties for each other; but it by no means follows, that in the character of trustees merely, and responsible as such in a court of Chancery, the nature of their obligation is changed. Had a remedy been sought on the bond and in another court, the question would have been different. But in this court, we have no concern with the bond, or the remedy upon it. The parties are before us as trustees; and the question is, what are their liabilities as such. Admitting that they are jointly liable on the bond, it by no means follows, that they are jointly responsible here. It -is every day’s practice in Chancery, to discriminate between persons jointly responsible at law. The remedy at law, on the bond, is no longer available. It is extinguished by the proceedings in relation to Buell’s estate, — by the closing of the commission, and the peremptory bar of the statute. No mortal supposes that this court can revive that remedy, as against the surety, who may have signed the bond with these executors, nor can we revive it against any body. We may, indeed, enforce a trust, but the character of that trust is not to be varied by the existence of a collateral security, which once was, but is now no longer available.

My own opinion is, that we are to treat this claim precisely as if no bond' had ever been given. But if I err in this, it is because the obligation of the bond and the duties of the trust are so blended and amalgamated, as to form an entire and indivisible duty, receiving its character from the impress of both. If this be so, and the claim of the orators is to be regarded as one and the same, whether entertained here or elsewhere, it will be difficult, 1 apprehend, to make out, that this identical claim is extinguished by the commission of insolvency upon Buell’s estate, and, at the same time, still subsists with all its characteristics and incidents, to be. c n orced hereafter. Indeed it is impossible, in my opinion, to entertain this controversy, in this court, as arising out of the bond. It is only by disregarding the bond, and treating it as a case ol trust merely, that this court can take cognizance of it. But of this more hereafter. I return to the question, whether Buell can be made liable upon common law principles.

There is no pretence, in my view, for treating the default as *88 the join act 1656 parties, or as growing out of their joint acts. To be sure they were co-executors and both acted as executors, but if this renders each responsible for the default of the other, what becomes of the rule, which is conceded by the counsel ? The inventory may have been signed by both, — pro-j^jy was . this does not prove that both had actual custody of the assets. It is very common for one executor or administrator to take the sole charge of the assets, the other being associated lor the purpose of advice, &c. It is also a common practice to divide the duties of administration, as was done in this case — Buell being the principal executor, and taking charge of the property in possession, and Lyman, being an attorney, taking charge of the hooks, and closing the professional business of the testator. A large amount of property came into the possession of Buell, in the disposition and management of which Lyman had no agency. On the other hand, a large amount of debts and demands came into the hands of Lyman for collection, in which collection Buell seems to have taken no part. No actual interference of his is shewn : nor indeed, that he was in any wise accessory to the proceedings of Lyman, except that he permitted the demands to go into 1ns hands, or, as is insisted, placed them there. The effect of this will be presently considered. The case, therefore, presents an instance of several executors dividing their duties, each taking upon himself different branches of the administration or execution of the will. This is a very common case — a distribution of duties, evidently contemplated by the testator himself, and one, with reference to which the several executors were selected. If the rule, that co-executors are not responsible for the acts of each other, does not apply here, it is difficult to imagine a case, which would apply, and if, notwithstanding such a distribution, they are to be considered as acting jointly throughout, and in all particulars, simply because they make the arrangement in the outset, the rule itself becomes a matter of idle speculation, of no practical use or application. The cases cited are all at war with such a notion, and with the idea, that, although the executors act separately in fact, yet their proceedings are constructively joint. They shew abundantly, that, in order to make an executor liable for the default of his co-executor, he must be implicated in the particular default, either by concurring in it directly, or by some neglect of duty which led to it.

*89 It is said, also, that the accounting in the probate court was joint and the settlement joint. This is not true in point of fact. It appears that the executors presented several accounts, which, by di-, rection of the probate court,were consolidated. Nothing is clearer, than that this proceeding, which was purely arbitrary in the court, could not affect the question, whether these parties had previously acted separately or jointly. Had they presented a joint account in the outset, it would afford evidence, so far as it went, of an intent to assume a joint responsibility; but having acted separately, and presented separate accounts, the-act of that court, in directing the form of that adjustment, could neither afford evidence as to their previous acts, nor conclude them as to their liabilities. But admitting, for argument sake, that the parties had acted jointly up to this period, y et another view of the subject may be taken equally satisfactory. There had .then been no delinquency. Lyman was then solvent and in good credit, and fully as able, for aught which appears to us, to meet the claim, as Buell himself. He claimed a credit for the amount of the legacy due the .plaintiffs as his children, by way of accounting for the funds in his hands; which credit was allowed. This, although no satisfaction of the legacy, was, at least, an appropriation of the fund in his hands for that purpose. Buell had then paid the other particular legacies, and proceeded immediately to pay the balance in his hands to the residuary legatees. He had thus accounted for every thing in his hands. Lyman had also accounted for every thing in his hands as executor, and' all that remained to be done was, either to pay over the legacy in question, or give the security required by the court of chancery, as father of the legatees. In this state of things, the other particular legatees, -the creditors, and residuary legatees, being satisfied, no person had any claim upon the fund in Lyman’s hands except the plaintiffs. He held the fund, not as a fund for the general purposes of the original trust, but as a trustee for his children alone. Buell had in his hands no fund of any kind appertaining to the trust; and there had been, thus far, no breach of trust, with which either could be charged. At this period the trust was-changed; Lyman became, instead of a trustee for the purposes of the will generally, a trustee for his children 'alone. He became in fact sole trustee ; and if Buell were trustee at ail, he was so nominally only. From this time forward, Lyman acted as sole trustee. Buell neither acted in *90 f"act> nor professed to act. Some years afterwards, Lyman became insolvent, and the plaintiffs, it is said, have never been paid their legacy. Now admitting that these parties acted jointly, Up t0 tj)e t-¡me t]ie settlement in the probate court, yet, subsequently, Lyinan acted alone, and Buell is not responsible for defaults.

I use this argument here, merely to show that Buell can not be made liable, upon the ground that he acted jointly with Lyman, at the time the breach of trust was committed. It will be seen, however, that this consideration of the severance of the joint trust, if it ever was joint, and the aspect which the trust then assumed, have a material bearing upon other points Jn the case.

1 ought, perhaps, to add here, that, in this state of the business, Buell, having ceased to act, was precisely in the condition oí a trustee, who had resigned his trust. Will it be insisted, that a trustee, who has retired, can be made responsible for the subsequent default of the acting trustee, upon the ground that they act jointly ? I think not: but if he is to be made liable in such a case, it must be upon the ground, either that he is responsible, of course, for .the acts of his co-trustee, or is in some way implicated in the breach of trust complained of. The first is not pretended, and the other part of the alternative I shall now consider.

If Buell be liable at all, as having been in any way accessory to the breach of trust, it must be either, because he suffered the fund to go into the hands of Lyman in the outset, or because he did not withdraw it afterwards. I make this the basis of my argument, because I see no other ground which can be taken. The question whether he should not have .paid the particular legacy out of the funds in his hands, and turned the residuary legatees round to the fund in Lyman’s hands, I consider not important to the main question of his liability; for if he can be made liable at all for the funds in Lyman’s hands, he must be responsible to one or the other, and it is immaterial to which.

It is insisted that Buell is responsible on the first ground, because he placed the funds in Lyman’s hands; and it is said that “if one executor possesses assets and passes them into the hands of a co-executor, who wastes them, both are liable.”

I have already remarked upon this position, as requiring qualification. It does not hold where there is good reason for the *91 transfer. Thus, where an executor, residing in the country', had funds which he was desirous of paying over to a creditor in town, and remitted them to a co-executor in town for that purpose, who wasted them, it was held that he was not responsible. The reason of this is obvious. The fund must be remitted in some way, and to entrust it to a co-executor was as proper as to entrust it to a stranger. There was good reason for the remittance, and the executor was excused. But there is another qualification worthy of notice. The assets must be such., strictly speaking.

With these qualifications, let us apply the rule to this case. A part of the property in Lyman’s hands was obtained by him without the concurrence of Buell: a part, it is said, was placed in his hands by Buell. Admitting this to be true, although the evidence hardly sustains the assertion, yet that property consisted of demands in favor of the testator against sundry individuals, which were placed in his (Lyman’s) hands for collection. These demands, although in one sense assets, were not such in another. They were assets when converted into cash, and not before. Now suppose Buell to have had these demands in his possession, and to have placed them in the hands of an attorney for collection, and the avails bad been lost, without any default of his. Would he be responsible? Most clearly not. If then, he was at liberty to employ an attorney for this purpose, —and that he was, will not be denied — was he not at liberty to employ the man designated by his testator for that purpose ? the man in whom the testator had reposed the same confidence as in himself?

For what purpose was Lyman named an executor, if he was to have no agency in executing the will ? And how could Buell be required to exclude him from all participation in the trust, when the testator himself had appointed him co-executor with Buell, with equal and co-ordinate powers ? It is to be borne in mind that the testator was himself an attorney, with an extensive practice and great property. He left, as we may well suppose, many things unsettled, and must have been aware that the agency of an attorney would be necessary in the adjustment of his affairs. It indeed was necessary. Lyman was also an attorney, a relative and partner in professional business with the testator. He was made by his relative and partner one of his executors, doubtless as a favor, and with a view to the benefit *92 of professional employment in the business. Buell finding demands which it was necessary to collect, 'employs his co-executor for that purpose. How then it can be made out, that it is waste, culpable negligence, a devastavit, in Buell to commit this duty to the very man designated by the testator for that purpose, I confess is beyond my comprehension to conceive. Had Lyman been insolvent, or, in any. sense, of doubtful responsibility, the case would have been different. But it is fully in evidence, that lie was in good credit, and of apparent, if not real, responsibility, until long after Buell had closed his trust, and for years after the fund for the pa}’ment of this legacy was left in his hands, upon the final adjustment. Or, had Buell received the money upon these demands and paid that money to Lyman, instead of the legatees, I should hold him responsible upon the authority of the cases cited; unless, indeed, some justification had been shown. But I can see no analogy between such a case and the present; nor between this case and the cases cited, where a trustee seeks to avoid responsibility, by paying money to his co-trustee, instead of the person entitled to it. In this instance, it was not Buell’s duty to deliver these demands to the legatees, but to cause them to be collected. He did so, and, in my opinion, selected the proper agent. On the other hand, the money arising out of these demands never came into his possession, but came, in the first instance, into the hands of Lyman. And so far as Buell contributed to this result, be did so in strict performance of his duty, and, as I believe, in pursuance of the intent of his testator. I see no reason, therefore, for charging him on this ground.

As to calling the money out of Lyman’s hands, I know of no process, either at law, or in equity, by which Buell could effect it. Lyman, as trustee, was as much entitled to retain the money as Buell. Had Lyman been irresponsible, it would have furnished good grounds for the interference of the court of chancery. But the fact was otherwise, and there was as little reason to displace him as Buell.

The only course, which could be taken, was taken. A petition was brought by the trustees to be relieved of their trust. Upon this application a decree passed, directing payment of the legacies to the several parents of the infant legatees, upon their giving bonds to account with the legatees,upon their becoming of age.

*93 This was the course adopted by Buell to close his trust, and the proper, if not the only course, which the case admitted of.

Let us see then what was the effect of this decree ; whether Buell was guilty of any default in this part of the transaction, and whether the effect was to charge, or discharge him.

It is to be borne in mind, that Lyman was one of the executors, and father of these legatees, that he had in his hands the amount of the legacy in question, which he professed to retain for these orators. In this state of things, Lyman and Buell brought their petition to be discharged of their trust as executors, and the court decreed payment of the several legacies to the parents of the several legatees, of whom Lyman was one, requiring security from the parents, by way of bond. In pursuance of this decree, Buell pays the other legacies, taking the security required, and pays the balance of assets in his hands to thé residuary legatees. Lyman accounts for the amount in his hands, ^deducting the legacy, but did not give the security required.

The result of all this was, in my opinion, that Buell’s trust was determined, and all liability on his part extinguished.

The object and .intent of this decree was to put an end to the trust and responsibility of the executors, and this was its necessary legal consequence. The parents were substituted as trustees to the executors, and Lyman held the fund, not as executor, but as parent. Payment from Lyman to Lyman was not contemplated. To suppose such a ceremony to have been intended by the court is ridiculous, and a libel upon the court. But in t-his, as in all other like cases, the law made the transfer. It was like decreeing a dividend to a creditor of an insolvent estate, who is also administrator. The moment sufficient assets come to his hands, the law makes the application, and the debt is ipso facto paid. If this be doubted, let us examine the operation of this decree more in detail, both in regard to the fund itself, and those who held it. The argument, that these legatees could resort to Buell for their legacy, assumes that the other particular legatees could do the same. He was bound to pay them, upon their furnishing the security required, which he did. He paid them and their claim was satisfied. The residuary- legatees were entitled to the residuum without giving security, and they received it. Thus Buell had paid over every farthing in his hands — his trust was fully executed, and, so far *94 as was concerned, the decree was fully complied with. Lylxian gt¡[j jjgjj jj-jg amount 0f this legacy, but that amount was no longer held for the general purposes of tlie original trust. The creditors, and the other legatees, were all satisfied — they had no claim to, nor interest in, the fund in question. The only persons ¡ntei.estec¡ ¡n were these plaintiffs. Lyman held it in trust for them and them only. Moreover, the money was in the hands of the individual entitled to receive it, under the decree. The whole trust fund had gone to its proper destination. Lyman then held it in the same manner precisely, as the parents of the other legatees held their portions, and, in my estimation, a claim on the part of the other legatees for the default of their parents, in wasting the fund, would be as well founded against Buell, as this claim. How was it as respects Buell? Admitting that the trust was originally joint, yet Buell, so far as he was concerned, had fully executed his trust. He held not a cent in trust for any body. Lyman was, therefore, sole trustee from that time forward. There had been as yet no defalcation. Lyman was then fully responsible, and was so for years afterwards. How then can Buell be made responsible for his after default ? This view of the subject furnishes a satisfactory answer to all the positions taken by the orators. Assuming that they were jointly responsible, as executors, by reason of their joint bond to the probate court, and that they acted jointly as executors, yet, when their duty, as executors, was discharged, there was an end their joint responsibility. When a new and different trust arose, where Lyman was sole trustee, and these plaintiffs alone were cestui que trust, a trust not appertaining to their office of executor, but created by the decree in chancery, it is clear there could be no further accountability on the part of Buell for the preformance of duties, not within the scope of his executorship, and appertaining to a trust, to which he was not a party. So:;if Buell be responsible for the due application of the funds committed to his co-executor, yet that responsibility is satisfied when these funds reach their proper legal destination, are disposed of the provisions of the will require, and are no longer a part of the original trust.

The only answer, which can be given to this argument, is, that Lyman did not furnish the security required by the decree. It is said that giving that security was a condition precedent to the payment of the money, and, therefore, the decree did not take *95 effect, nor will the law make the application, until that condition is performed.

So far, indeed, as respects the other legatees, whose parents were not executors, this is true. The decree contemplated a payment to them, which payment might be withheld until the condition was complied with. But as to Lyman, the case was different. The money was already in his hands, and it was so understood by the court. The language of the decree, so far as he was concerned, was, “keep the moneyas trustee for your children, but furnish us a bond for the faithful execution of that trust.” From the nature of the case, the giving the bond could not be a condition precedent to the reception of the money, for the money was received before the bond was required. The true construction of that decree is, that it made Lyman a trustee for his children, and required of him a security in that character. The idea, that the security -was a condition precedent in his case, is an absurdity. When, therefore, the original trust was broken up, and the fund distributed, the law made the application ; leaving it to the court and those interested, to enforce the new trust against Lyman, either by exacting the security or otherwise. This necessarily resulted from the other proceedings under the decree. Buell having executed his trust, and the common fund being distributed, the money in Lyman’s hands became, of course, the money of the-orators, and he a trustee for them alone.

Another view may be taken of this point, which, I apprehend, is decisive of the whole case. The sole ground of complaint in the case is, ’that Lyman did not give the security required. Had this been done, however worthless it might have proved in the end, it is not pretended that Buell would be liable. Indeed, had this been done, it is conceded that the decree in Chancery would have afforded Buell a full and perfect defence in this case. Every thing in relation to the execution of the will, and the final distribution of the estate, down to the execution of the decree in chancery, was performed agreeably to the requirements of the will, and the terms of that decree, except the omission on the part of Lyman to give the security.

Now how can Buell be made responsible for that omission. How could he compel Lyman to give the security ? It is said he should not have paid over the money, until the security was given. This argument is nonsensical. The money was in Ly *96 man’s hands, before the security was required. It was no part of his duty, as executor, to give the security. 'It'was a duty imposed upon him by the decree, as trustee of his children. What had Buell, as executor, to do with this ? He could not force the money out of Lyman’s hands, nor compel him to give the security ; and, admitting his liability in all respects, for the act of his co-executor, yet this was no part of that co-executor’s duty.

The’truth is, the requiring the security, as a condition precedent, was nugatory; as a subsequent duty, it was foreign to Lyman’s obligation as executor, and, a fortiori, to that of Buell.

Besides, there was a full and adequate remedy against Lyman, which these orators might have enforced in this court, by compelling him either to furnish the security, or surrender the fund. They might have displaced him as trustee, and it was their own fault if they neglected this remedy until he became insolvent.

But it is said, that Buell should have provided for this legacy, notwithstanding the fund in Lyman’s hands. Had Lyman been insolvent or in doubtful circumstances, before the payments by Buell, there would be some plausibility in this reasoning. But the fact was otherwise. It was then as much the duty of Lyman to guard against the insolvency of Buell, as the reverse. If they were jointly liable to the legatees, this argument is unimportant ; but, if each was responsible for his own acts only, then the fact that Lyman had retained a fund for this purpose, was a sufficient reason for Buell’s paying the other legatees.

It is argued however, that, although he was at liberty to pay the particular legacies, yet he was not justified in paying the residuum to the residuary legatees, as the former had a preference.

I do not perceive the force of this argument. Had the whole assets been paid to the residuary legatees, leaving nothing for the particular legatees, I admit he would have been liable. But the amount of assets had been ascertained, they were sufficient to pay the particular legacies, and a specific sum was left for the residuary legatees. The latter were as fully entitled to their specific portion as the former. I admit that if there be no more than sufficient to pay particular legacies, they must be preferred, but when there is a surplus, and the precise portion of each is ascertained, 1 can see no ground for a preference. Indeed, in this state of things, I do not understand what is meant by it.

*97 There may be a preference where there is a deficiency of assets, but where there is no such deficiency, there can be none.

Indeed I see not how Buell could resist the claim, either the particular or general legatees. Suppose the other particular legatees claim their legacies of him, would it be any defence against them that there was a fund in Lyman’s hands, set apart for the payment of the legacy in question ? It would be. so, indeed, if, in case of a solvent estate, it would be a good reason for not paying one debt, that there were assets sufficient to pay-others also. Nor can I see how he could resist the claim of the residuary legatees. The assets being liquidated, there could, as I have already observed, be no distinction between the claimants. If this needs further illustration, let us suppose there were assets to the amount of ten thousand dollars, or in other words, cash in the hands of the executors to that amount. There were, I think, four particular legacies of one thousand dollars each, and upon this supposition, there would be six thousand dollars for the residuary legatees. They are therefore entitled to the money in the ratio of six to lour. Now by what logic can it be made out that one class is not entitled to their six thousand, as fully, absolutely,' and without condition or preference, as the others are to their four thousand.

Lyman and Buell both could retain against the residuary legatees, only the single amount of this legacy. It is very clear, then, that, so long as the money was in Lyman’s hands, set apart to pay this legacy, Buell could not resist the claim of the residuary legatees. Indeed there was an obvious propriety at that time, in Lyman’s retaining in behalf of his own children.

There is nothing, then, in the proceedings of Buell, in paying over to the other legatees the assets in his hands, which should render him responsible to these orators; because he did simply what the necessity of the case required, and what a court of Chancery would have compelled him to do, had he refused.

I have thus far endeavored to shew, that Buell was never responsible for this defalcation of Lyman. A brief recapitulation of the argument may not be improper. In the outset, I assume, what indeed is not contested, that one executor is not, as a matter of law, liable for a devastavit of his co-executor. And it follows from this, as a necessary corollary, that one is not of course liable for all claims, whether by creditors or lega *98 tees, where there is a deficiency of assets through the delinquency of his co-executor.

I insist that Buell, in this case, is not liable for the default of Lyman, on the ground of their having executed a joint bond to the probate court.

First, because this would not vary the character of the trust, but they could be made jointly responsible only through the medium of the bond, or by suit ppop it.

And secondly, because the original trust of the executors was executed and determined, before the supposed devastavit occurred, the only default consisting in Lyman’s not giving the security required by the court of Chancery, as parent and guardian of the orators, without which this bill would not be sustained a moment; and this was evidently no part of his duty as executor, and not within the scope of the bond.

Further, Buell is not responsible upon the ground that they acted jointly, because he is not implicated in the particular default complained of, and it is not enough to render co-executors responsible for each other in all respects, that they have acted together in some respects ; and, because, if they did act jointly as executors, yet there was no default in Lyman’s retaining the arpount of this legacy, as one or the other must be the depository of the funds, and it was as much the duty of Lyman to call the fund out of Buell’s hands, as Buell’s duty to call it out of Lyman’s hands. And when Buell closed his trust, by paying over the funds in his hands to those legally entitled, there had been no default, no delinquency, aqd if Lyman afterwards squandered the fund held hy him, as trustee for his children, it was an act not within the scope of their proceedings as executors, and Buell is not liable.

1 also hold that Buell is not made responsible by reason of passing funds in his hands into the hands of Lyman, in such manner and under such circumstances as render him accessory to the devastavit by Lyman, First, becapse there is no satisfactory evidence in the case, that any thing passed from Buell to Lyman ; and secondly, because, if any thing passed, it consisted of demands which were not assets until converted into cash, and which he might have placed in the hands of another attorney for collection, without making himself liable for a devastavit, and which, of course, he might lawfully deliver for that purpose to his co-executor, an attorney by profession, and one designated *99 by the testator himself. Although I admit, that one executor can not evade responsibility by a transfer of funds to his colleague, yet he makes himself liable only, where the act is unnecessary, not called for, or improper. I maintain that it is not his duty to exclude his fellow from his trust, and that he is at liberty to permit him to act in collecting the assets, especially when there is satisfactory evidence that in so doing he pursues the intent of his testator. In short, my opinion is,- that Buell can not be made liable on that ground, for the default of Lyman for this act, unless the Set itself is culpable, or'decidedly wrong. Had it been his duty to deliver these specific dem'ands to the legatees, I should admit his liability but as they would pay neither debts nor legacies until collected, it was his duty to see them collected, and I can not conceive how it should be deemed a violation of duty to select his- colleague for that- duty.' In my apprehension, whatever may have been the responsibility of the executors, as such, yet Buell was fully and completely discharged of his trust by the decree of the court of chancery, and the proceedings under it, and the settlement in the probate court. By that decree the several legacies were directed to be paid to the parents of the legatees, they giving bonds, &c. This was done in all cases but this, and Buell had executed his trust by paying the last farthing in his hands, in strict accordance with the terms of that decree. Nothing remained of the testator’s estate but the fund in Lyman’s- hands,- set apart and appropriated to the payment of this legacy. Had Lyman given the security required, no mortal could have projected this bill. But he neglected it; and on this ground,- and this alone, this suit rests. It is admitted on- all hands, that,- if the security had been given, the decree would have operated to discharge Buell effectually and forever.

Now I hold that the decree'had- precisely the same effect, so far as Buell was concerned,- as if the security had been given, This fund was understood at- the time to be in Lyman’s hands, retained on account of this legacy. It was expected and designed that he should keep it. It- was expected and designed that the other legacies should be paid out of the fund in Buell’s hands. This was done. Now was there not a full and complete distribution of the assets ? and was Lyman after this accountable to any human being, but his children ? The old trust was extinguished and a new one created, necessarily,- and as the *100 inevitable consequence. The decree had taken effect fully and absolutely} except indeed, that Lyman had not given the secuBut this was a thing to be enforced against him as trustee for bis children, and with which Buell had no concern. The °nly answer to this is, that the decree was conditional; and it jg tjje trust was not shifted, because the condition precedent was not complied with. However this might be in the other cases, as to Lyman it could not be so. No payment by Buell to him was contemplated. The money was already in his hands, and was to remain there. The security was therefore not a condition precedent, but a condition subsequent, — a substantial requirement, to be enforced against him thereafter. As was not a condition precedent, and could not be from the nature of the case, it could not prevent the trust’s shifting. Buell had no means of enforcing this part of the decree, as he had in other cases. Whether we consider Lyman as holding as executor or as trustee for his children, seems immaterial, as Buell, not responsible of course for the acts of his co-executor, can not be liable for Lyman’s subsequent default, in retaining the money without giving security. Buell was under a necessity pay the funds in his hands to the other legatees by force of the decree, and this furnishes an additional reason why it should protect him.

I now proceed to the question in the case growing out of provisions of the act, relating to the probate of wills and the settlement of estates.

Buell deceased long prior to the bringing of this bill, his estate was represented insolvent, regular proceedings were had under a commission of insolvency, the time for presentation of claims had expired, and the orators’ claim was not presented.

In my opinion, it is barred. On this point, I assume, that whatever is strictly speaking a debt, debitum in presentí, must be duly presented, or it is barred. I also assume, that in all cases where Courts of Law and Courts of Chancery have concurrent jurisdiction, a bar of this description, if available at law, is also available in chancery; or, to speak more guardedly, when a Court of Chancery can do no more than decree payment of a sum of money which a Court of Law would adjudge, a bar of this kind is equally available in both courts.

It is to be borne in mind also, that this statute is of a different character from ordinary statutes of limitation inter vivos. The *101 latter bars the remedy, the former the claim. The one may be varied, the other not. The latter is local, regulated by the lex fori, the former is peremptory and govered by the lex loci. We held in Hunt v. Fay et al. after repeated argument, that the limitation in the statute of New Hampshire to the presentation of claims against an intestate estate, the statute having taken effect in that State, where the creditor and intestate both resided, was a peremptory bar to the claim, when presented in this State to commissioners appointed under an auxiliary administration. This' distinction is important, as it disposes some cases, where one remedy has been enforced after another had been taken away. Those cases are where the statute limitation has run inter vivos, but the provision of the probate act, as it bars the claim and not the remedy simply, bars of course all remedies.

With these preliminary remarks, let us inquire whether the claim in question, if it ever had legal existence, is not barred by the statute above.mentioned.

In the first place, if the bond gives a. remedy, as it clearly does, for every default coming within the scope' of the executors’ duty, then the claim was susceptible of proof before commissioners. The default was committed long before Buell’s decease, and Lyman was long before that period utterly insolvent. If therefore all claim within the provision of the bond,, and all claim, which might be enforced by means of the bond, is barred absolutely, it is difficult to perceive what is left of the orators’ claim. If it be admitted that this claim does not come within the scope of the bond, as not within the executors’ duty, and not within the condition to discharge faithfully that duty, then there is an end of another ground, upon which the case rests. And if it be conceded, as it must be, in order to evade the effect of the statute in question, that the act complained of is not a breach of Lyman’s bond, nor of his official duty, then it follows that it is a breach of duty in him as trustee for his children, and the case is disposed of upon the ground I have already taken.

It appears to me, that Buell’s liability for the acts of Lyman is fully as extensive upon the bond, by which he undertakes specially for his acts, as it is when resting upon the mere relation of a co-executor. Indeed, it is more so. At common law, it is admitted, that executors are not liable for the acts of each other; *102 this bond is intended to' cover all the acts of each in that character, and therefore,- if they bec'ome obligated jointly, that obligation for each other is co-ex-tensive with their duties. The orators, therefore,' are in this dilemma; they must either bring their case within t-his statute, or plac'e it beyond the pale of official anci attac¡] ¡tt0 a trusi wjth wlaiCh Buelfhad no connection.

It will not be pretended,-1 trust,- that a court of chancery is not bound by this statute, or that it can decree damages for a breach of this bond, where a court of law would be precluded.

But put the bond out of the case, and it is,- in my opinion, equally clear that this claim is barred by the statute.

Something has been- said as to maintaing, a suit at law for a legacy. Whether this can be done in this State, is not a question of much importance, as in our mode of settling estates, the question is not likely to arise. I see no great difficulty in maintaining such a suit in any case, where an action can be sustained against an executur, for the debt of his testator. If there be any objection to it, it is because a court of law would not go into an examination of the condition of the estate, to determine whether there are assets for the payment of legacies ; but when the estate is represented insolvent, no such embarrassment can arise.

But be it a legacy, or be it what it may, there was certainly no difficulty, in this case, in presenting the claim, and having an adjudication upon it, before commissioners. It will be remembered, that before the decease of Buell, the estate of Harrington had been fully settled, all debts had been paid, and the surplus paid to the residuary legatees. A settlement had been had in the probate court,- in which the executors had taken a credit in their final account, for this legacy, as paid, according to the usual practice of that court, which allows the executor for all ascertained charges upon the assets, whether in fact paid or not, leaving it to the claimant to enforce' payment from the executor, and no further action of that court was- to be expected in the premises.

Under these'circumstances, this claim was no longer a legacy, depending upon the state of the assets,- but it was a debt absolute and unqualified, ascertained of record, to which the claimants were absolutely entitled, and which the executors, or one of them, at least, were absolutely bound to pay; not merely as executors, but as individuals,-having received the money for that *103 purpose, and having been already credited for the payment. It became, m this state oí things, a private personal debt, no longer a claim upon the estate of the deceased,but a debt due from the living individual,to be paid from his own pocket: a thing with which an administrator, de bonis non, would have no concern. It was the same thing as if a third person had been entrusted with the orators’ receipts for the amount, and had received it of the executor. An action of debt would unqestionably lie for it, or an action of assumpsit, unless the remedy by assumpsit was merged in a higher security. It may be compared to the case of a pension agent, who, having received the receipt of the pensioner, and had the same allowed to his credit, by his superior, objects to paying the money, because, as a public agent, he is not sueable for a pension. I assume, for the purpose of this argument, the original liability of Buell, although, in my opinion, he was not liable at the time of his decease.

The fallacy, of the plaintiffs’ argument consists in treating this as a legacy, when it was no longer such. As a legacy, it had been satisfied and paid, the money was no longer a part of the estate of Harrington, that estate, if I may use the expression, had paid it, and nothing remained but that Buell and Lyman, who had received the money from the estate, should pass it to the true owners. I can not conceive any difficulty in enforcing a claim under such circumstances, nor in its being allowed by commissioners. I do not understand how Buell’s administrator could resist the claim, in this state of things, upon the ground that it originated in a legacy. No matter how the money came into the hands of the executors, It was there, and they are no longer accountable to the probate court, but to the orators alone. It was a proper claim for the consideration of commissioners, and, if not presented to them, is barred.

It has been suggested, that there is evidence tending to show a waiver, on the part of the administrator of Buell, of the protection of the statute. It is unnecessary to spend time upon this point, as it is well understood that the statute is not intended ior the benefit of the administrator, but of the estate, and it is not competent for the administrator to dispense with it.

The only remaining ground, upon which it is attempted to evade this statute, is, that the case presents a trust cognizable only in equity, not within the powers of the commissioners, and, of course, not barred by the statute. This position assumes, *104 what, indeed, is not to be denied, that there is a wide distinction between a mere trust, cognizable only in chancery, and a debt, which may be enforced at law. A mere statement of this distinction is sufficient to show on which side of the line this case falls. I have already endeavored to show that, although there was jn cagej originally, a legacy given by the will of Harrington to these orators, yet, by the allowance of that legacy, by the probate court, and the credit given to the executors, in their final account, the nature of the claim was changed, and it became an absolute debt; and, as such, was proveable under the commission. The same reasoning will apply to it, viewed as a trust. If we denominate Buell a trustee for the legatees, still that trust was determined when the p roceedings just mentioned took place in the probate court, arid he became, therefore, a simple debtor for the amount.

In my apprehension, it is altogether fallacious, to treat this case as a case of trust, cognizable only in chancery. Buell, as executor of Harrington, was trustee for these orators in the same sense only, as all executors and administrators are trustees for creditors, heirs, or legatees. Call it a trust, or call it what you please, it is a subject falling within the exclusive jurisdiction of the probate court. The administrator or executor is the mere officer of that court, deriving his authority from that source, although the executor is nominated by will, exercising his functions under the superintendance, order, and ultimate jurisdiction of that court. In entertaining this subject, we invade that jurisdiction. The case before us illustrates this truth, with more force than any supposititious case. In the matter of Harrington’s estate, that court established the will and allowed the legacy under it. Will it be pretended that this decree of that court, in a matter within its jurisdiction, is not conclusive ? or that we have power either to set aside the will, or annul that legacy ? Further, the Probate Court, upon the final accounting, not only ascertained that there were assets for the payment, but actually decreed the payment, and allowed the amount, as paid, in the executors’ account. Whether it was, in fact, paid, or to be paid thereafter, that court would not inquire ; no more than it inquires whether debts allowed by commissioners are, in fact, paid or not, when it credits the administrator lor the amount. The reason of this is, that in all these cases, the claimant has adequate remedy in the ordinary common law courts. Now if *105 we have jurisdiction over the subject, we may disallow the legacy altogether, or decree that Buell shall not be holden to pay it. If we do this, we must necessarily overhaul the accounting ; for if Buell is not compellable to pay the amount, he should not be allowed for the payment, but the balance in his hands must go to the residuary legatees. Here, then, we have overturned the whole proceeding in the probate court, and settled the estate of Harrington in a manner altogether at variance with the determination of the court, which, it is admitted, on all hands, has exclusive jurisdiction over tbe subject.

But if we cannot do all this, nor, indeed, any of this, what is there left of our jurisdiction ? Nothing indeed ; for the case admits of nothing else, but to enforce the' decree of the probate court, because it is the decree of that court. And here, a new and extensive field is opened for the exercise of chancery jurisdiction. The probate court decrees the payment of debts, as allowed by commissioners, and legacies, if any; or payment of an ascertained and liquidated balance, in the hands of an administrator, to the heirs; and all these parties come into this court, to enforce payment of a specified sum, adjudged to be due them, through the medium of a decree of this court, to be in its turn enforced by execution to be issued here, or by process of contempt. I am not aware that this court ever assumes jurisdiction, as a mere court for the collection of debts, or to aid in the enforcement of decrees of another tribunal, unless under peculiar circumstances, affording, of themselves, grounds for equitable inteference.

If this subject requires- further illustration, let us suppose that the probate court had rejected the will, and thus annulled the legacy. Would it be competent for us to establish either the one or the other ? It will not be pretended.

If then this court can neither establish the legacy, where the probate court has disallowed it, nor disallow it where that court has allowed it, what becomes of the position that this is a case of trust cognizable only in Chancery ? The truth is, the subject is not within tbe jurisdiction of. this court at all, unless we interfere for the mere purpose of enforcing the decree of another tribunal.

But this is not- all.- The matter came before the probate court again upon the decease of Buell, in the settlement of his estate. That estate was represented insolvent, and regular *106 proceedings were had under a commission of insolvency. This was not presented. Here, again, the subject fell within the jurisdiction of that court, and it was competent for that court to issue its commission of insolvency. This claim was liquidated and adjusted, and was proveable under the commission, beyond all controversy. But it is said it was a trust, and, therefore, was not proper for the consideration of commissioners. So is every case of administration or executorship a trust. But it does not follow, that, upon the decease of the executor or administrator, the subject of his official trust, or the allowance of claims against bis estate is transferred to this court. If he have not so far executed his trust as to become personally liable, an administrator de bonis non is appointed by the probate court, where jurisdiction over the subject remains. If he have so far executed his trust as to become personally holder), then indeed, no administrator de bonis non can be appointed, but his obligation becomes a debt to be enforced in the mode prescribed by the statute. In this case, the account of the executors was finally adjusted. The whole estate of Harrington had been accounted for. The appointment of an administrator de bonis non would have been idle. It was a case with which such an administrator would have no concern. Upon the settlement of the executors’ account, a sum of money was in their hands, directed to be paid to these orators. The original trust was adjusted and closed, and this debt was left to be enforced by the orators, and should have been proved under the commission. Nay, it is not pretended that Buell had a cent in his hands, but the case is put now upon the ground of his liability, for the default of his co-trustee, Lyman.. If, then, he was liable on this ground only, by what perversion, of names is it to be made out, that a liability of this kind, for the default of another, is to escape the operation of the statute, and the proceedings of the probate court, under the denomination of a trust.

There is still another view of the subject, worthy of consideration. I am unable to conceive what we have to do with the defendant, the administrator of Buell, as trustee. It is to be borne in mind, that this suit was not instituted, until after the decease of Buell, and was then brought against his son and administrator, Frederick Buell. He also is deceased, and the bill now stands against Marsh, administrator de bonis non of Ozias Buell.

Now it is clear that the original defendant ’n this suit was not, *107 by virtue of his administration, an executor of Harrington, because the statute is explicit on this point. He was not, therefore, a trustee upon the ground of succeeding to the original trust'. In the next place, it is conceded that Ozias Buell had not a cent of Harrington’s estate in his hands, at the time of his decease. F. Buell, therefore, did not receive any portion the trust fund, and was not made trustee in that way. 1 admit that if trust property comes to the hands of an administrator, he may be treated as trustee, quoad that property, and it may be called out of his hands by the cestui que trust, because it is not a part of his intestate's estate. But here there is nothing of that kind. How, then, is F. Buell made a trustee ? In no other way, clearly, than that he is administrator of O. Buell, (who was once trustee, if you please.) What is the condition of the trust? Simply this. The fund, intended for the payment of this legacy, got into the hands of the co-trustee, Lyman, under such circumstances, that Buell was responsible for it, and Lyman has squandered it. The claim is now made against Buell’s administrator, upon that ground, and for a specific sum of money, which he owed the orators, having, at the time of his decease, no condition or trust attached to it, except that it was his duty to cause it to be paid to them long before his decease. Now if the administrator can be made a trustee as to this claim, he is a trustee as to any claim against O. Buell’s estate; and we may, with equal propriety, entertain a claim in behalf of any other creditor of that estate. If F. Buell is to be made liable, (or Marsh, who succeeded him,) he is to be made so, as administrator, simply, and that liability is to be regulated by the proceedings of the probate court; and if one creditor may overleap the statute and the proceeding under the commission, another may do so. My objection is, that in sustaining this bill, we, in the first place, intrude upon the exclusive province of the probate court, and secondly, we nullify the statute, which requires all such claims to be presented to commissioners, and bars them, if not presented. I see no pretence for treating the administrator of Buell as trustee, except that he is administrator, a ground which exists in every case; and if we are to assume upon ourselves the settlement of intestate estates, and oust the jurisdiction of the probate court, I know not where we shall end. I confess I dislike the precedent. If we allow claims against an estate, which are barred by the statute, upon the ground of a trust in *108 the administrator, the jurisdiction of the probate court seems to be useless. And if we attempt to exercise concurrent jurisdic .tion, that court proceeding with a commission of insolvency, and we by Bill in Chancery, the usual consequences of a clashing antagonist jurisdiction must follow.

The idea that Buell was once trustee will not sustain us. If there were a subsisting trust at the time'of his decease, a new trustee should be appointed to supply his place. If he have squandered the trust property, or others have done it with his concurrence, or if a debt has grown out of a settlement of his account, as trustee, it is to be enforced, like every other debt, in the mode pointed out by law.

As to his administrator, I can conceive of no ground, upon which we can deal with him, unless he has received the trust fund, or some portion of it. If his intestate is indebted in any sura, for which the estate is bolden, it is competent for the probate court to require a presentation to commissioners, and if this is not done, it is barred, peremptorily, by the statute.

To prevent misapprehension, I here repeat, that I use the words ‘ trust’ and ‘ trustee,’ in their strict sense. I am aware, that in the common parlance of the profession, these words are used in a general, and often loose, sense. But I here use them as denominating that sort of trust, which falls within the jurisdiction of a court of Chancery, exclusively, and not within the scope of ordinary legal remedy ; and my object has been to prove, that this case does not present such an instance of trust, as is not susceptible of being brought before the commissioners of an estate, represented insolvent. And the position, which I take, is, that this claim was not only proper for the action of the commissioners, but that it should have been presented to them, and that, not having been presented, it is barred by the statute.

There is another point in the case, a subordinate one indeed, as it concerns two only of the orators, upon which I will say a few words.

It appears that two of these orators, after becoming of age, executed receipts to Buell for their portion of the legacy. It is not supposed that any thing was paid to them by him upon that occasion, but the receipts must have been intended to sanction the previous proceeding of Lyman, in retaining the amount in his hands, and to discharge Buell.

It is to be remembered that these persons were of full age, *109 when these papers were executed. They were not voidable on the score of infancy, therefore, but only for some imposition or mal-practice in obtaining them.

To prove this, the testimony of Mrs. Lyman is put into the ease ; but, in my opinion, it falls far short of competent proof of the fact. In the first place, she is most clearly incompetent to testify, as her husband is party to the bill, and so identified with Buell and his liability, that he could not be made a witness. In the second place, her testimony is altogether too general. She says, merely, that the'orators did not know what they signed, but gives no particulars, by which her means of knowledge can be tested. They might have been aware of the import of these papers, and still her testimony may have been very honestly given. But it is so highly improbable, that persons of full age would execute such an instrument, without knowing its import, that something very satisfactory is required to prove the contrary.

Considering, then, that no fraudulent or improper practice was resorted to in-obtaining the receipts, I have only to say, that the execution of them not only sanctioned the previous proceedings, but also placed Buell in a situation, in which he must necessarily yield to the claim of the residuary legatees. It aifords also another ground for the reasoning already presented in this opinion, by which I have endeavored to shew, that, long before Lyman became insolvent, the original trust was at an end, and he became sole trustee for his children. Every other legacy had been paid, the estate fully distributed, except that the money in ■question remained in Lyman’s hands, for the benefit of the orators, and two of them, being of full age, executed to Buell receipts for their portion. Now how it can be considered that Buell’s original liability, as executor, continued, or that he was still joint trustee with Lyman, and answerable to these two, who had thus discharged him, is beyond my comprehension. This act, in my opinion, made Lyman, so far as the two children were concerned, a sole trustee.

Some other points have been discussed in the argument, which I deem it unnecessary to notice. I have remarked upon such only as were, in the view, ■which I have taken of the case, material ; and I am admonished by the length to which these remarks have been extended, of the propriety of closing them.

In conclusion, 1 may add, that this is not an attempt to call out of *110 Buell’s hands money, which he has ever received, or which was ever in his possession or control, as money. The nearest approach to it is, that sundry demands were once in his hands, which he passed over'-to Lyman for collection. But it is an attempt to recover from his estate money, which another has squandered, upon the ground of a supposed liability for the acts of that other. In addition to this, I cannot resist the suspicion, that much of this money had been expended for the benefit of the orators; for it seems they were well provided for in the wane of their father’s fortunes. How much has been bestowed upon their maintenance and education, it is perhaps impossible to ascertain. But however this may be, the claim of the plaintiffs is not to be favored. It is one stricti juris, and, in that aspect, is not, in my opinion, sustained. I should dismiss their bill.