#### Leroy H. Mundy ads. James M. Harrison.

An executor who voluntarily pays *a,*legacy to one who is by the will required to give a bond to return it, on the happening of a certain, event, cannot afterwards compel such legatee to. re-pay the money, though he refuse to give the bond as required by the will.

*Tried before his Honor Chancellor JOHNSON, at Edgefield,. June. Term,*1837.

The bill stated that Edward Harrison died intestate, the 13th April 1829, leaving a widow, Mary Harrison, and' the complainants, I. M. Harrison, Edward H. Harrison, Ann S'ophronia, (who Intermarried with the defendant Mundy,) John B. Harrison and Mary E. Harrison, his children, amongst whom his estate was distributable. Administration on his estate was granted to the defendant Mundy. Edward H. Harrison, one of the sons of the said Edward, died in July 1829, leaving his share in his father’s *35estate to be equally divided between bis mother, brothers and sisters above named; that the complainant administered on his estate, with the will annexed. That a reckoning was had in the Court of Ordinary, between complainant and defendant, and a decree pronounced on 13th July 1535., by which it appeared thatthe complainant and each of the children of said Edward Harrison were entitled to receive from the defendant on the 9th February 1831, the sum of $1713 46, with interest from that date; and that consequently, on the 21st February 1831, the complainant was entitled to have of defendant in his own fight $1713 46, with interest for twelve days, equal to $4, and one-fifth of the same amount as his own share in the estate of Edward H. Harrison, viz-; $343 49, in the aggregate, $2060 95. But that on the said 21st February 1831, the complainant received from the said Mundy, only $1957 87, and by ignorance and mistake, .gave him a receipt in full of his distributive share in the estate of Edward and Edward H. Harrison, whereby the defendant retained in his hands $103 08, the difference between $2060 95, and $1957 87, belonging to the complainant. It further appeared by the .said reckoning and decree that the defendant was indebted to the complainant as administrator of Edward H. Harrison, on the 13th July 1835, the sum of $1327 24, and in payment thereof, he gave complainant $428 50 in cash, his note for $444 51 andn, debt on Mary Harrison for $16, in the aggregate $889 and the complainant averred that this was the whole sum ever paid him by the defendant, of the said sum of $1327 24; and insisted he was •now entitled to receive the difference $438 24. That the complainant in his hurry and confusion on said day of reckoning, 13th July 1835, gave his receipt for $889, as in full fiar what was coming to him as administrator of Edward H. Harrison; and this receipt, given by mistake, prevented his recovery of the balance at law. The bill further stated, that the will of Edward H. Harrison required each of his brothers and .sisters, upon receiving his or her share of his estate, to give a bond for the return of said share, in case he or she should die without leaving a child to live to lawful age, to his or her surviving brothers and sisters or their children — that the defendant Mundy had received the share *36coming to his wife and refused to give such bond. The bill prayed that the defendant might make true and perfect answers to the several matters charged, as fully as if the same were repeated, and he interrogated specially thereto; that the said receipt might be set aside; that the defendant might give said bond and come to a full settlement with the complainant, &c.

The answer admitted the death of Edward Harrison, at the time stated, and that the names of his widow and children were correctly stated in the bill, and that the defendant administered on his estate. It also admitted the death of Edward H. Harrison, leaving his estate to be disposed of as set forth in the bill, and requiring his executor to take from his legatees a bond for the return of their shares, on the terms ^mentioned by the complainant; and that the defendant administered with the will annexed, on the said E. H. Harrison’s estate. The answer admitted the reckoning, and the decree of the Ordinary, set forth by the complainant; but that they were made alone, (as manifestly appeared from the decree itself,) with the view of ascertaining the balance due by the defendant, as administrator of Edward Harrison, to *the*widow and to *the*complainant, as administrator, with the will annexed, of Edward H. Harrison. That the defendant had, long before the date of that decree, settled in full with the complainant for his shares in the estates of Edward Harrison, and of Edward H. Harrison. That it was therefore in no wise important to ascertain the complainant’s share in his father’s estate, and that the same was only incidentally ascertained by the Ordinary. That the complainant, although present, and well knowing that he and this defendant had previously settled, as before stated, did not, when the parties were before the Ordinary, intimate the slightest error in, or dissatisfaction with, their settlement. It was true, that this defendant had the complainant’s receipt for only $1957 87, for his shares in his father’s and brother’s estate; whereas the complainant insisted he -was entitled to receive *$103*08 more. The defendant did not recollect that he paid complainant more,money than is expressed in the receipt, but was greatly surprized to hear that the complainant gave that receipt through ignorance and mistake, when he must have recollected that the settlement was fairly and delibe*37rately made between them; and the complainant had never, in any instance, ’-till the filing of this bill, alleged or complained to the defendant, of the slightest error in their settlement. That the defendant would, at any time, if he had been applied to by the complainant, have, with pleasure, corrected any error of which he might have been made sensible, without the trouble and expense of this proceeding. The defendant denied that he was at all indebted to the complainant, as administrator of Edward H. Harrison. It was true, that by the reckoning of the Ordinary, it appeared that on the 13th July 1835, there was due, by this defendant, to the complainant, as administrator of Edward H. Harrison, $1327 24; but as the share of the complainant, in his own right, and the share of his mother in the estate of the said Edward H. Harrison had, before the decree of the Ordinary, been paid by this defendant, the said sum of *$1327 2<t,*was divisible, between John M. Harrison, Mary E. Harrison, and the wife of the defendant: consequently, in the settlement with the complainant, after the decree of the Ordinary, one third of the said sum of #1327 24, was retained by this defendant, in right of his wife, with the full and entire approbation of the complainant, and the balance paid to the complainant, and his *receipt in full*taken, not in hurry and confusion, as he alleged, but with a full knowledge of the whole matter and with the most entire deliberation and reflection onhis part. The defendant admitted that the Ordinary failed to recover against him at law, because be had, before the suit was instituted, settled with the complainant.

In relation to the bond which the legatees, under the will of E. H. Harrison, were requested to give, the defendant said he had always expressed to the complainant, before their settlement on the 15th July 1835, and on that day, his entire unwillingness to execute any such bond; and assured the complainant always that he would prefer to loose his wife’s shares rather than to give such a bond; and that it was with the most express notice of this defendant’s determination not to give such a bond, that the complainant, allowing him to retain his wife’s shares, received the other two-thirds, and executed to this defendant a receipt in full. The defendant denied that he was ever applied to by the com*38plainant, to correct any error in their *first*settlement, and averred that neither then, nor since their settlement in July 1835, when the complainant gave to this defendant, his receipt in full, for Edward H. Harrison’s share in his father’s estate, had any application been made to this defendant, ’till the filing of the bill to give such bond. The defendant respectfully submitted that the complainant bad not been in any way imposed on, deceived, or mistaken, either in the manner ef conducting their last settlement upon the estate of Edward H. Harrison, or in the force and effect of the receipt ■given by him to the defendant, .and that as the complainant, with a perfect knowledge of his rights, had waived the necessity of the bond from this defendant, at their settlement, that the Court should not now interpose to supply that which, if this defendant ought to bav-e done, the complainant, by withholding his receipt and his consent to the -settlement, might easily have compelled him to do.

■On hearing the pleadings and arguments of counsel in this case, the Chancellor ordered and decreed, that the defendant should pay to the complainant the sum of $103 -08, with interest thereon from the 21st February 1831, until payment should be made; also that the defendant should .give bond to the plaintiff for the return offhe.shasre of defendant’s wife, in the estate of Edward H. Harri-rison, in cases he should leave no child or children to live to lawful age; and on the defendant’s refusal to give such bond, by the 1st ef January next thereafter, that he should pay to the complainant the sum of $438 24, with interest from the 13th July 1835; and that each party should pay his own costs.

From this decree the defendant appealed and moved the Court to reverse the samei

1st. Because the defendant was not bound by law to give, and the complainant had waived his right .to receive the bond in question.

.2nd. Because, if tbe defendant should be decreed to pay the said sum of $438 34, he ought not, under the circumstances, to be charged with interest.

3rd. Because the whole costs should have been paid by the complainant.

*Cb-iffm,*defendant’s solicitor, for motion.

*Wardlaw*& *Wardlaw,*contra.

*39Cubm,- per

Harper, Ch:

I do- not understand the- facts- to- Be? disputed, which are stated in the- defendant's answer; of the truths of which indeed the- transactions' themselves carry intrinsic evidence. Defendant had in his hands the sum of *$1327 2%*which complainant was entitled to receive as administrator; with the will annexed, of Edward H„ Harrison-, deceased. Of this amount,, defendant would have been entitled te-reeeive ba-cls one-third-,, as one; of the residuary legatees of the-said Edward- H, Harrison, upon giving his bond to refund, in- case ofliis dying without issue, in favor of devisees over, according to- the will- of the testator. Complainant came to an account with defendant, and- received, of him two-thirds of the amount in his hands, allowing him- to retain the other third, to which, he was entitled as residuary legatee, and gave him a receipt in fui¿. He took no bond in pursuance of the directions of the will. The object of the present hill is to recover of defendant the amount retained by him, or to compel him to give his bond.

If complainant had had the money in his own hands, and paid it over to defendant, without requiring the bond, on what ground would he claim relief? It was in his power to have made it a condition of his paying the money over, that the bond should he given and not having done so, he must be held to have waived it. There is no shewing of any mistake, ignorance, or fraud. By his neglect I suppose, he may have made himself liable to the- devi-sees over. But this furnishes- no ground for relief. Even- if the devisees over, could be entitled to maintain such a Bill, he could claim no relief against his own act and his own negleet.

But the case is just the same as if he had had the money in his? hands and paid it over. As administrator with the will annexed, he might have recovered the whole amount of defendant, who could only have claimed to retain it as legatee, By complying with the condition of giving, his- Bond. Complainant, however, allowed him to retain it, and discharged him.. It is the same thing as- if he had received the whole amount, and forthwith paid Back one-third of it.

It is ordered and decreed, that with respect to this claim the Chancellor’s decree Be reversed.