#### Nathaniel Brotten *v.*Daniel Bateman, *et al.*

A court of equity has jurisdiction at tlie suit cif a legatee against tllé executor of an executor, who has the funds of the first testator in his hands; although there, is a surviving co-executor.

The case of *Bailey*v. *Shannonhome {ante*1 *vol.*416) approved.

The original bill was filed in 1818 by *Brollen*and his wife against *Levi*and *Benjamin Batsman,*the executors of *John Ba teman*deceased,- who had been the former husband of the *feme*plaintiff, for an account of the estate. It charged that she dissented from the will. The defendants filed a joint answer, and admitted their joint administration.

Pending the suit, both of the defendants died; and at September term, 1820, a bill of revivor was filed, in which it was charged that *Benjamin Bateman*died and made *Daniel Bateman*and *James Wood*his executors,' who took into their hands the assets of *John*and *Benjamin Bateman*to the value of *£*10,000 : and it further charged, that *Benjamin*died first, whereby the administration survived solely to *Levi,*and that he reduced into his possession all the property of his testator *John*: That *Levi*then died, having made *Harman Bateman*and *John Bateman, jan.*his executors, who reduced into their possession all the effects of the first testator *John,*and also assets of *Levi*to very large value. The prayer was for process against *llar man*and *John,jun.*only, and that the suit might stand revived against them — which was ordered accordingly.

In March, 1823, *Eunice,*the wife, died, and her surviving husbaud, having administered on her estate, then filed, in that character, a second bill of revivor against *Harman*and *John,*the executors of *Levi :*on which the suit was again revived against them.

In September, 1827, on léave granted to amend in that respect as well as to revive, the plaintiff filed an amended- bill and bill of revivor, in which he set out the former proceedings, and charged that in the bill of September, 1820, it was charged *by mistake, that Benjamin Bate-man*died first, and that *Levi,*after that event, possessed *116himself of all the effects of their testator *John*: and the amended bill charged, according to what was alleged to ^ ° be the truth, that *Benjamin*survived *Levi ;*and that in fac^ a iavge part of the estate of *John,*the first testator, ivas in the hands of both *Levi*and *Benjamin,*which came to the hands of their respective executors, besides large amounts of the proper estates of *Levi*and *Benjamin*themselves. A *devastavit*by *Benjamin*of the assets of *John*was also charged, and- that a sufficiency of *Benjamin's*estate came to the hands of his executors, *Daniel Bate-man*and *James Wood,*to make good the same. The prayer was for process against *Daniel Bateman*and Wood, and that the suit should stand revived against them.

To this bill an answer ivas put in by *Daniel Bateman,*v, ho survived *Wood,*Avherein he denied that *Benjamin*did survive *Levi,*and that any asset's of *John, sen.*came to the hands of *Wood*or himself; or that *Benjamin*had any of those assets in his hands when he died ; and alleged that *Benjamin*had in his life-time paid all that he ever had either to creditors or legatees, or to his co-executor Levi. He admitted assets of *Benjamin*in his hands, and further averred, that in 1817" a settlement of the administration was made between the two executors, *Benjamin*and *Levi,*on which it was found that *Levi*had all the estate in his hands except the sum of *ft,*85.85, which, it was admitted, *Benjamin then*had. But he alleged, that it was then agreed by *Levi,*that *Benjamin*should pay that sum to two other legatees on account of their legacies *;*and that the defendant laid *done so, since*the death of his testator *Benjamin.*

Upon this, after a replication and an order setting the cause down for hearing, the case was heard at September term, 1830 ; and a reference made to the master to take an account of the assets of *John, the*elder, which came to the hands of his executors, *Levi*and *Benjamin,*and of the same assets, which came to the hands of the defendant *Daniel,*executor of *Benjamin,*and also of the assets of *Benjamin*which came to the hands of the same defendant.

At March term, 1831, the master reported the account of the receipts and disbursements of the assets of *John*
      *117
      *Bateman,*the original testator, whereupon a balance was found due to the plaintiff of g 296 14, with interest from March term, 1830' — that the administration of *Levi*and *Benjamin*was joint throughout, as long as *Benjamin*lived — that *Daniel*had assets of *Benjamin,*to a much larger amount than the sum reported in favor of the plaintiff — but that it did not appear, that any assets of *John*had ever come to the hands of *Daniel.*

no re<|ress a-exe-cutOTj where *118there is a surviving1 co-executor, unless upon the ground of collusion, or of the insolvency of the survivor.

*117To this report the defendant *Daniel*excepted, because the master charged the executors, *Levi*and *Benjamin,*jointly, with the estate of their testator, although *Levi*survived *Benjamin,*and without proof that *Benjamin*had wasted any of the estate, or retained any of it in his hands unaccounted for. But notwithstanding the exception, the report was then confirmed by Dosibix, Judge. And at the next term, the cause was finally heard before Martin, Judge, upon the report and pleadings, who pronounced a decree against the defendant *Daniel alone, for the sum of*$296 14, with interest, and the costs of the suit : from which that defendant appealed.

No counsel appeared for the plaintiff.

*Badger,*for the defendant

— A decree cannot bo made against the executor of a deceased executor, where there is a surviving co-cxecutor, unless upon the ground that some specific articles are in the possession of the defendant, or of collusion between the defendant and surviving executor. *(Becklcy*v. *Dorington,*2 *Eq. ,3b.*253. *Utterson*v. *Mair,*2 *Ves. Jr.*95. *Conway*v. *Slroude,*2 *Freem.*188. *Bevjield*v. *Solomons,*9 *Ves. 77.}*

Ruitin, Judge,

after stating the case as above, proceeded as follows:

Several objections are now made against the decree. One is that taken in the exception made below, namely, that there is no jurisdiction here against the executor of a deceased executor by a legatee, where a co-executor survives, unless there be collusion or insolvency of tlie surviving executor* 1 nat is not so in our opinion. It is true as to creditors of the testator. It is also true, where the legatee proceeds against a debtor to the testator. But this case is altogether dif-*118feretit from those. Money in the hands of the executor who died first is not, properly speaking, a debt to the estate, hut a part of the estate itself. The statute of-limitations does not run against it. *(Bailey*v. *Shannonhouse, ante*1 *vol.*416.) It is true, the surviving executor may account with the representatives of the deceased executor, and receive payment. ■ This is necessary for the benefit of creditors, who can only sue the survivor. Such a payment will discharge the estate of the deceased executor from further responsibility for that sunt to any body ; because it has been made to him then entitled to the possession of the estate. But where one-executor is made liable to the legatee for the acts of his co-executor, as by a joint administration ; or has committed a *devastavit;*or has the effects in his hands at his death, and no account has been had therefor between his executor and the surviving executor, a legatee may by a suit, in which all arc made parties, call for the estate belonging to him, from whatever hand holds or is liable for it. It is a favorite principle of this court to follow the fund, wherever it is; and this for the benefit of him who is entitled to it; and also for the benefit of another, who is answerable for that fund, though not in his hands, as in the case of a joint administration. ¥e are therefore of opinion that the decree ought not to be reversed and the bill dismissed, as to *Daniel Bate-man,*on this ground. The trust upon which it was originally received attached to the estate, and passes with it to the executor of the executor, until it has been accounted for and paid over.

A payment by the executor of one of two co-executors to the survivor will discharge the- estate of the deceased executor *pro tanto.*

Legatees may in equity recover of the executor of a deceased executor and the surviving co-executor the funds in their hands respectively.

Co-executors , who jointly administer are liable for each other’s acts.

Another objection is, that the decree is against *Daniel Bateman*alone, who is the executor of *Benjamin,*without its being ascertained that *Levi’s*estate or his executors are insolvent, and when thp master states that no portion of *John’s*assets came to *Daniel.*The decree seems to have been pronounced in this respect upon the idea, that as the administration had been jointly conducted, the executors were liable for each other’s acts ; and being so liable, the legatee had aright to proceed jointly and severally against them, upon the footing of contract? *119at law. The first part of the proposition is correct. But the last is not the rule of this court. The course here is to do exact justice between all persons concerned; and hence where two are liable, in general both must be before the *court;*and in all cases, he who is primarily liable, and against him must be the decree for primary payment. For instance, at law a surety may be sued alone. But that cannot be done in equity. All the parties must be brought in. Again, equity may decree against a surety ; but never that he pay the debt in the first instance, nor even jointly with the principal; but only that if the creditor cannot raise it from the latter, then he may from the former. So as between co-executors, they may be jointly liable at law, but they are never so here. In this court, each is liable for what is in his own hands. It is true, he may also be liable for what is in the hands of the others ; but not jointly. He is not liable for the estate, as if in his own hands. He is only responsible for the other, and after him. They stand as reciprocal sureties for each other. Hence, although *Benjamin’s*estate may be ultimately responsible for what *Levi*had not administered, it is not so in the first instance. It is manifestly unjust that he should pay the debt of *Levi,*while the estate of the latter is well able to do it. If he did, what would be the effect ? Either *Benjamin*must lose it altogether, or begin another course of litigation with *Item's*executors to recover it, in which all the accounts in this cause must be retaken, besides an account of the administration, as between the executors themselves. This is another reason, why the decree is erroneous. For the very ground of requiring all to be made parties is, that the whole controversy may be settled in one suit.

But upon an account of their administration, both are not •[‘íinlíy resPonsl' in the first in-jf^recei^ed'the fund is primarily only-case of his default'

The reference therefore ought to have been extended, so as to take an account of the receipts and disbursements of th,e assets of the testator, *John Bateman,*by each of his executors, as between themselves, as well as the joint account which has been taken ; and also an account of the assets of *Levi*in the hands of his executors. As to such parts of the estate of *John*as are in the hands of *120each of bis executors, the decree ought in the first instance, to be against the executor of that executor, if he hath assets of his last testator. If indeed it cannot he thus satisfied, then the decree ought to require the estate of the other to pay it; because as the master finds a joint administration, (and no exception is taken to the report on that fact, or to any item of charge or disbursement, and the report was properly confirmed,) the legatees are to be paid at all events, if either execiitor be solvent. If the whole be found in *Levi’s*hands, then his estate ought to pay, if able. If in *Benjamin’s,*then the same rule applies to him. And here I will point out an inadvertence of the master, and a mistake in *Daniel’s*answer, as to the fact of the assets of *John Bateman*coming to *Daniel’s*hands. He may not have any *now;*but he expressly admits that *Benjamin*owed the estate g 85 85 at his death, which he says that he, *Daniel,*afterwards paid to two of the legatees. If indeed the accounts were kept between tire executors so loosely, as to make it impossible for the master to determine in the hands of which of them in particular the assets are, no other course is left, but to make each liable equally, that is, for one half in the first instance, and ultimately for the other half, if not obtained from the co-executor’s estate. For they stand as sureties for each other, for what may be found in their hands respectively ; and if that cannot he ascertained, then each is liable for one half himself, and as the surety of the other for the other half. So far then as the decree makes *Daniel Bateman*alone or primarily liable for the whole, it is, in the present state of the case, erroneous, and must he reversed with costs in this court; and the cause sent back with directions to make the additional inquiries herein mentioned, and thereupon proceed to a decree.

Per Curiam. — Affirm the decree, so far as it establishes the right of the plaintiff to the sum of g 296 14, as the share of his intestate Eunice, in the estate of *John Bateman,*and reverse the residue of it by which the defendant, *Daniel,*is made primarily and solely liable therefor, and remand the cause with directions to enquire how *121much of said sum was in the hands of *Benjamin*and *Levi Bateman*respectively, in their life-time, and came to the hands of their respective executors ; and if any part thereof be found in the hands of *Levi,*or of his executors, the defendants, *John*and *Harman,*whether the assets of the said *Levi*are sufficient to answer the same, and if not, whether *John*and *Harman*are able to answer for any *devastavit*of the assets *oí John,*the elder, or *Levi*their testator, by them or either of them *made;*and also with directions, to take all other steps necessary to a final decision between all the parties, and direct that the plaintiff pay the costs of this court.

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