State ex rel. Reyburn v. Ruggles

Scott, Judge,

delivered the opinion of the court.

This is a singular preceding. It appears that there has been a judgment against Ruggles. The record does not show that he contests the propriety of that judgment. But persons who are no parties to the proceedings on which the judgment is obtained, interpose, by motion, to have the judgment, in part, entered in their favor. There is no warrant in law for this. The judgment should have been entered for the penalty of the *101 bond, with an award of a single execution for the damages assessed for the breaches thereof. When the sheriff brought the damages awarded into court, on the return day of the writ, (as he might have been notified to doj) then would have been the time for the court to have distributed them. The court had no authority to distribute the damages and award a separate execution for each distributee. Should the defendant, Ruggles, pay the costs of all these unnecessary writs ?

The facts are not found which are necessary to enable this court to determine whether the plaintiffs are entitled to have their legacies first satisfied. As the matter is up, however, we will state our views of the law on this subject. It would be strange, if the law was such -as to encourage a race between legatees, and to award the prize to the foremost. What justice would there be in suffering one legatee to sue on an executor’s bond, and to obtain his legacy to the exclusion of all the others ? If an executor pays a legacy voluntarily, the law presumes that he has sufficient to pay all the legacies, and the other legatees can resort only against him. In case the assets appear to have been originally deficient, if the uxecutor either voluntarily or by compulsion, pay one of the legatees, the rest shall make him refund in proportion. And even if such legatee obtain a decree for his legacy and be paid, the other legatees may oblige him to refund in the same manner. But if the executor had at first enough to pay all the legacies, and by his subsequent wasting of the assets they became deficient, in that case, such legatee shall not be compelled to refund, but shall retain the benefit of his legal diligence. (Toller, 340. Lupton v. Lupton, 2 Johns. Ch. Rep. 614 .)

Now, from the facts found, it does not appear that any part of the judgment is subject to the payment of legacies. It may be all necessary to pay debts. It is obvious that a legatee suing on an administrator’s bond for a legacy, must show the same facts that he would be compelled to show had he sued the administrator by bill in equity. If the damages, when recovered, would be subject to the payment of debts, then the *102 legatee would only be entitled to nominal damages in bis action on the bond. IE tlie amount of damages awarded in this case was the only fund for the payment of legacies, nothing more appearing, it would be a vain thing to satisfy the entire legacies of the plaintiffs, when the next moment they would be compelled to refund.

This case, from the record, appears to have been very irregularly conducted. It seems to be a very hard one on’the administrator, Ruggles. None of the grounds on which he is made liable appear in the finding of the- court, but as from this record, it does not appear that' he complains or has brought the case here, we are not warranted in entering into that matter. The judgment will be reversed, and the cause x’emanded, that all the facts may be found. The other judges.concur.