#### *Bower’s Executor v. Glendening and Others.

Argued Tuesday, February 22d, 1814.

». Executors — Decree against — Contribution by Lega. tees.* — If without fraud or collusion, a decree be rendered, by a court of competent jurisdiction, against an executor; be may bring his suit in equity against the legatees, for contribution to satisfy such decree ; without paying the money himself ; and without having appealed to a Superior Court; though requested and advised to do so.

William Bower, executor of Peter Bower, filed his bill in the Superior Court of Chancery for the Richmond district, against George Glendening, and his children, and James Bower, setting forth that Michael Bower had recovered against him $1391 46, with interest and costs of suit, by a decree of the County Court of Stafford ; previous to the rendition of which he had distributed the estate of his testator according to the will; that all the distributees had refunded their respective proportions, except the defendants, James Bower, and George Glendening as guardian of his children ; praying therefore a decree compelling them to refund.

The defendants, by their answers, insisted that the decree in question was erroneous and unjust, and obtained by collusion between the executor and Michael Bower. A copy of the record of that decree was exhibited, and many depositions were filed ; from which it appeared that some objections might be made to the equity of the decree ; but that the claim was opposed by the executor, who employed two counsel, and paid considerable attention to defending the suit; and no proof appeared of fraud or collusion, except that he failed or refused to appeal, when requested by one of the present defendants, and advised to do so by one of his counsel.

Chancellor Taylor dismissed the bill with costs ; whereupon the complainant appealed.

Williams, for the appellant

contended, that, so far as any collusion could be proved, the decree, which was offered as evidence, might be impeached in this suit; but not on any other ground; in support of which position, he cited Hooe v. Tebbs, 1 Munf. 501; and Lee, executor of Daniel v. Cooke, 1 Wash. 306.(a)

*Stanard for the appellees.

The decree against the executor was obtained under very extraordinary circumstances. A tenement worth between twenty and thirty pounds per annum, was enjoyed by Michael Bower,(1) without paying any compensation. After the testator’s death, he sets up a claim against his estate for the improvements he had put upon it, and recovers $1391 46 with interest from the 13th of June, 1801. The lot with the improvements is then sold by the executor, and bought by Michael Bower himself for 1061. ! The circumstances are so glaring, that on *90the face of them'fraud is appai ent; either in direct collusion, or such negligence as amounts to fraud. Eor, having been disinherited by. his father, he gets the property itself, and a large sum besides.; although the improvements, for which he recovered, had been worn out in his own use.!

The decree was palpably erroneous on its face ; for the account reported by the commissioner was made up, reported to the court, and decreed upon the same day. Yet the.executor peremptorily refused to appeal to a Superior Court, though advised by his counsel. He brings this suit in less than a year after the decree was pronounced. Our answers apprized him of the objections we had to it; yet he persisted in acquiescing under it, and in prosecuting this suit.

The executor could not come before a court of equity to demand compensation before he had paid the money; especially on a decree so erroneous as this. The testimony shews that Michael Bower is still the substantial, plain tiff ; that the suit is for his benefit; for the money, when recovered, is to be paid to him. Another point, is therefore important. The circumstances are such, that a court of equity ought not to interfere,, but to leave the plaintiff to his remedy at law. The court will not lend its aid where the claim is hard and unconscionable.

^Williams, in reply.

Where a decree is obtained against an executor, he is not obliged to wait until his property is sold, and the money paid, before he sues the legatees. In case of an indemnifying bond, the party is damnified, and may bring suit, as soon as suit is brought against him.(1)

An executor is not bound to appeal, but is justified in submitting to the decree of a court of competent jurisdiction. He was not obliged to dismiss his suit for contribution, and prosecute an appeal. But the decree itself could not have been reversed. The contract between Michael Bower and his father is fully proved. He bought the land so low, because persons who knew the injustice of his father would not bid against him. The last objection taken by Mr. Stanard is clearly untenable ; for the executor could not bring a suit at law, against the legatees for contribution.

Thursday, March 17th, 1814,

*

'Executors — Decree against — Refunding by Lega*tee.*— Bower *v. Glendening,*4 *Munf.*219, decides merely that an executor, against whom a creditor obtains a decree, may compel the legatee to refund. Davis v. Newman. 2 Rob. 699. See also, *foot-note*to this case. See further, monographic *note*on "Executors and Administrators” appended to Rosser v. Depriest, 5 Gratt. 6.

(a)

 See 1 Munf. 507. Judge Roane’s opinion.

(1)

 Note. It was proved that Michael Bower was put in possession of the tenement by his father, who told him he would pay him for whatever improvements he should make, if he did not leave him the lot itself by his will; by which it appeared that he left him nothing, but directed that tenement, with others, to be sold by his executor, and the money arising from the sale to be divided among his other children. — Note in Original Edition.

(1)

 Note. See Murrell v. Johnson’s administrator 1 H. & M. 450 ; and 2 Munf. 496, 497.

JUDGE ROANE

pronounced the court’s opinion as

follows : — “The court, not perceiving that there was any fraud or collusion on the part of the appellant, in defending the suit brought against him, as executor of Peter Bower, by Michael Bower, in the County Court of Stafford, among the proceedings, which should bar his recovery against the appellees in the present suit, is of opinion that the said decree is erroneous. Therefore it is decreed and ordered that the same be reversed ; and that the cause be remanded to the said Court of Chancery for the purpose of decreeing against the appellees their rateable proportions of the debt, in question, according to the principles and usages of equity.