#### *Guerrant v. Johnson and Others.

Submitted without argument, January, 1815.

1. Executors — Distribution of Estate — Payment in Bonds.* — Where an executor is directed by the will of his testator to sell the real as well as the personal estate, and to distribute the surplus, after payment of debts, among the legatees, he may assign the bonds, taken for the property sold, to the persons entitled to distribution, and be discharged as to so much ; the bonds appearing to have been well secured when taken, and to remain due from responsible persons at the time of such assignment. (1)

2. Same — Decree for Distribution — Refunding Bond.— Quaere, whether a decree, requiring persons entitled to distribution of the estate of a decedent to give bond and security, for refunding due proportions of such debts as the administrator, or executor *mar*thereafter be compelled to pay, &c., be correct or not ?(2)

A friendly bill and answer in chancery were filed in Goochland County Court, by the executors and legatees of John Johnson, deceased, for the purpose of having a settlement of the administration account, and a division of the estate. Commissioners were appointed to examine, state and settle the accounts, and made reports thereupon to the court, shewing a balance due from John Guerrant, jr., one of the executors, amounting to 11441. 13s. *3%d.*

Before any decree was made, the cause was removed by certiorari into the Superior Court of Chancery for the Richmond District, on the petition of Philip Johnson and others, defendants to the bill, suggesting that many unjust credits had been allowed the executors, and that, in consequence of the undue influence of John Guerrant, jr. in the County Court, they had not a fair chance for impartial justice. The same defendants also filed a cross bill, in the Superior Court of Chancery, against the executors ; in which they set forth sundry objections to the accounts as stated, and demanded redress. The executors answered this bill, and denied or repelled the several charges therein made. The chancellor referred the administration account to a commissioner of *his court, who made a report exhibiting some alterations in the former statement.

Whereupon, the causes being heard together on the 16th of February, 1808, chancellor Taylor decreed that John Guerrant, jr. pay to Philip Johnson 4721. 6s. *6%d.*with interest on 3851. 16s. 4d. part *153thereof, at the rate of five per centum per annum from the 10th day of October 1807 until payment; that he also pay to John Johnson the like sum with interest as aforesaid ; and that Polly Hatcher do pay to the said John Guerrant, jr. 851. 3s. 10d., with interest at the rate of six per centum per annum from the same day until payment; upon their giving bond and security to the said John Guerrant, jr. for contributing in equal proportions, towards discharging such debts as he might thereafter be compelled to pay for the estate of his testator, and for paying annually to the testator’s mother the annuity devised to her by the said testator.

At the same term, viz. on the 27th day of February, 1808, “for reasons appearing to the court,” it was ordered, that the money which Guerrant was decreed to pay as aforesaid might be discharged, by his assigning to the parties entitled thereto certain bonds, in the commissioner’s report mentioned, as far as the amount of such bonds extended ; unless cause to the contrary should be shewn to the judge in vacation, within thirty days after the legatees should have been served with a copy of this order. And, at the court holden in June 1808, “on hearing the parties by counsel, and for reasons appearing to the Court,” the said order was set aside.(1)

*In April 1810, John Guerrant, jr. presented a bill of review, in which he claims several credits which had not been allowed him in the commissioner’s report, (without alleging that it had been out of his power to claim them before the commissioner ;) and assigned for errors in the decree, first, that the order permitting him to discharge the decree in bonds ought not to have been set aside ; and, secondly, that the bond and security required to be given by the legatees, for contributing towards the discharge of such debts as the executor might thereafter be compelled to pay for the estate of the testator, &c., was contrary to the letter and spirit of the act of assembly in favour of administrators, (between whom and executors there seems to be no just ground of discrimination in this respect;) because the executor might be subjected to great and serious injury, by first being compelled to pay debts and demands against the estate with costs, and then to resort to a course of law to recover back from the legatees, or their securities, their proportions thereof.

In support of the first point, the complainant observed, that the bonds in question were taken by him for sales of the estate of his testator made in pursuance of the will, and, being well secured, were retained by him for the sole and express purpose of paying the same over to the several legatees, whenever he should be justified in so doing. He was induced to this, as well for his own safety as to avoid the disagreeable means of coercing the payment of the debts from men who were amply responsible, and earnestly solicited indulgence ; and which, if collected, must have been put to interest, where greater security could not have been expected; or he might have been subjected to the payment of interest, although the money might have lain dead in his house, and liable to the various accidents which might have occurred. Under these circumstances, and relying upon what they always understood and believed to be the law of the land, (that is to say, that an executor might assign the bonds taken for the sale of his testator’s estate to those entitled to the estate, and *be discharged as to so much,)(a) the real as well as the personal estate being directed by the will of the testator to be sold, and having, by such sale, been converted into bonds; the executors who conceived there was no just distinction, in nature or principle, between the bonds taken for the sale of the lands, and those taken for the sale of the personal estate, (both being equally produced by the operation of the testator’s will, and made equally distributable among the legatees,) had retained for distribution such of them as remained after the payment of the debts ; to which purpose the sales of the personal estate were principally applied.

The chancellor, on the 11th of April 1810, received the bill of review as to the two errors alleged in the face of the decree; upon condition that the bonds should be deposited with the clerk of the court, (which was accordingly done ;) “but not to let in accounts that might have been produced before the commissioner, and were not.” As to the first point, “that the decree should be discharged with the bonds for which the estate was sold,” he observed, that “much was to be said both for and against the proposition, about which he still entertained doubts.” As to the second, “there is no doubt, but that there is a little departure from the law in wording the decree, and which, perhaps, ought to be corrected.”

The defendant, Philip Johnson, without answering the bill, demurred to it altogether, as containing no ground for reviewing and reversing the decree : and, on argument, in September 1811, the chancellor dismissed it, with costs : from which decree, the complainant appealed.

January 21st, 1815,

*

See monographic *note*on “Executors and Administrators” appended to Rosser v. Depriest, 5 Gratt. 6.

(1)

 Note. In such case, if the obligors, who were solvent at the date of the bonds, become insolvent afterwards, before the assignment to the legatees ; the executor would probably not be the loser, if he offered, without unreasonable delay, to make the assignment, or as soon as circumstances would admit. — Note in Original Edition.

(2)

 Note. The words of the act of assembly, (Rev. Code, 1st vol. p. 166, ch. 92, sect. 51,) are, “to refund due proportions of any debts or demands, which may afterwards appear against the intestate, &c.” —Note in Original Edition.

See Moss *&c.*v. Moss’s adm'r., *4*H. and M. 293, 296, 298.

(1)

 Note. A paper, bearing date May 25th, 1808, signed Philip Johnson, appears to have been filed, in the following words; "Philip Johnson objects to the receipt of the bonds alluded to in the decree; because, during all the time that the estate has been in the hands of the defendant, he might have collected them. Instead of that, he has not even instituted a suit; the bonds may now be due by insolvents, or by persons from whom a recovery is doubtful. Because the said Johnson, during the pendency of this suit, has been willing to have received a good bond and proceeded to collect it; but the defendant would not comply with this desire; because if bonds should now be taken from the executor, the plaintiffs would lose the benefit of the security given by the executor for the faithful administration of the estate. — Note in Original Edition.

(a)

 Rev. Code, 1st vol. p. 165, ch. 92, sect. 41.

the president pronounced the court’s opinion, “that the decree dismissing the bill of review is erroneous, inasmuch as the Court of Chancery ought to have set aside the order, setting aside that of the 27th of February, 1808, allowing the intestate for the appellant to pay in bonds the sum due, which were taken for the property sold under the will of his testator, John Johnson. The decree, therefore, dismissing the bill of review, is reversed -with costs : and, this court proceeding to make such decree as the chancellor ought to have pronounced, it is decreed and ordered that the order of the 28th of June, 1808, be set aside ; and that the ap*154pellant pay to the appellees the sum decreed in the original decree, by assigning the bonds taken as aforesaid, so far as the same will extend; and the residue out of the estate of the said John Guerrant, in their hands; without prejudice, however, to any claim, or suit, they may bring for sums advanced to the appellees, or to any other of the legatees, and not included in the account taken by the commissioner in this cause.”