#### SARAH SPACK et. al. *v.*JOHN LONG, et. al.

Generally a legatee cannot sue the debtor of the testator, it being the right and duty of the executor to collect all the debts — but where the executor was insolvent and manifestly under the power of the debtor, and that power was collusively exercised to the injury of the legatees, they may, in equity, have an account against the debtor.

From the pleadings it appeared that Frederick Long made his will in the yea¿' 1807, and therein bequeathed pecuniary .legacies to some of the plaintiffs and the residue of his estate to the plaintiffs and some of the defendants. After making the will he became of nonsane mind, and after inquest found, his son John, one of the defendants, was appointed guardian in November, 1811. For alleged misbehavior, John was removed from the guardianship in November, 1821, and his brother George, another of the defendants, appointed thereto. Each of the guardians had in -his possession some estate, real and personal, of the lunatic, but never made proper and full returns to the county court. In 1826 the lunatic died and his will was proved by His former guardian George Long, who was nominated therein the executor. The bill was filed in March, 1833, nnd charged besides the above facts, that the two defendants, John and George Long, respectively entered upon lands of which their father was seized, and received the profits, or ought to have received them to the use of their ward, but in reality applied them to their 'own uses respectively, on pretence that the lands belonged to them ; and that John never accounted with George either as subsequent guardian or as executor, but that the latter soon after his appointment to the guardianship became himself addicted to excessive intemperance, and was insolvent and wholly unfit to manage business, and under the control or influence of his brother John ; by reason whereof, and by collusion between them, he never called him to account, and then refused so to do.- The bill alleged a considerable balance to be in the hands of each of the defendants, and that what was in those of John could not with safety be intrusted to the management of George on account both of his unfaithfulness and insolvency; and it prayed for an account, from each, of the estate in their respective hands, or *61that ought' to have been received by them, and for payment thereout of the legacies to the plaintiffs.

The answer of John Long denied the charge of collusion, and as evidence to repel it, stated that he resisted his own removal and the appointment of his brother, and appealed from the order, because the imputations against himself were unfounded, and George was not, in his opinion, a fit person to be the guardian Of his father’s person or estate. It stated that this defendant delivered over certain bonds belonging to the lunatic to George upon his appointment, and denied all intermeddling afterwards ; but it did not set forth any account between those parties, nor allege that any final one was ever made, but, on the contrary, admitted that this defendant had not accounted for the profits of certain parts of his ward’s lands, and insisted that he ought not to account for them, because his father, before he became lunatic, gave him permission to take possession, and take the profits to his own use. By plain inference, if not explicit admission in this answer, it appeared that George Long was an illiterate, improvident, and insolvent sot, not trustworthy to transact affairs, and especially to receive money.

As an exhibit a receipt from John to George Long was filed by the latter for the sum of $ 144-ArV, dated the 3d of February, 1827, and expressed to be “ for part of his trouble for being guardian to Frederick Long.”

*Boy den,*for the plaintiffs.

*J. T. Moorehead,*for the defendants.

Ruffin, Chief Justice,

after stating the facts as above set forth, proceeded:—

Upon the answer of George Long there is no reason why the court should not proceed to an account of what is or ought to be in his hands, arising out of either of his offices of guardian or executor ; and it must, of course, be ordered. It is equally clear that John Long ought to account in like manner to some person. The only question is, whether the plaintiffs as legatees .have the power to call for it. Generally, the executor alone can sue a debtor to, or trustee for the testator, in respect of personalty. But we think the present is a case within the established exceptions. If the *62insolvency and incapacity of the executor would *not,per se,*suffice; yet those facts, with others, admitted or clearly Prove& raise so high a presumption of collusion as to establish it for this purpose. Doubtless the denial of itin the answer may be true as to the period, to which that positive denial particularly points; that, namely, of the contest for the guardianship. But their subsequent conduct is not susceptible of the same charitable interpretation. These persons are brothers, residing in the same neighborhood, and cognizant of each other’s transactions and liabilities in their respective offices, and bound to account with each other, for the benefit of third persons. But they do not account for a period of eleven years, and the executor is known by each to be irresponsible by reason of his insolvency; and each of them, upon a ground common to both, dóny a liability for the profits of certain parts of th.e real estate, with which *prima facie*they are chargeable. Can one help entertaining a strong suspicion under such circumstances, that the laches of the executor, otherwise so unaccountable, ought to be attributed either to positive collusion, or to that undue influence, exercised for gain by one brother, and yielded to by another, which amounts to the same thing in good sense, and in the view of a court of justice ? If to those grounds of presumption be added the surprising fact, that six years after the former guardian had handed over to his successor what he thought proper as the effects of the'ward, and a few months after the death of the ward, when the latter was acting as executor, the former so far prevailed over him as to induce him, contrary to law and common reason, to pay back to him a sum of money in part of some larger sum which he claimed for his trouble as guardian; and "all this without, even then, coming to an account. The evidence cannot be resisted of a power and control so exerted, for unfair and unjust ends, by the one over the other, as to constitute collusion. George Long might, perhaps, from negligence have omitted to sue John. It is possible. But there is enough in the case to satisfy the mind that he was not singly negligent, but that he was also unwilling to sue, and was thus unwilling because it was against the interest and wishes of his brother. There is therefore a proper ground for this bill of the legatees against *63John Long *;*and there must be a similar reference to take his • accounts. The other questions made in the pleadings •will properly come up for decision, upon the report of the master. . ,

Per Curiam:. . Direct an account.