#### Ex parte C. L. Boyd, in re Lawton *vs.*Hunt.

Devisees andlegatees were ordered to pay money into Court to satisfy debts and pecuniary legacies. The money was paid and a portion of it wasted by the *master:*— Held, that for the portion thus wasted the parties could not resort again to the devisees and legatees, and that their only remedy was against the master and his sureties.

BEFORE DUNKIN, OH., AT CHARLESTON, JUNE, 1855.

The decree of Chancellor Dunkin, in July, 1851, in Lawton *vs.*Hunt, sets forth the history of that case, and the facts upon which this petition is founded. The decree is as follows :

Dunkin, Ch. — The previous history of this case will be found in 4 Strob. Eq. 1.

It was not a hill preferred by the *creditors*of the testator for the purpose of marshalling the assets of the estate. No ground existed for such proceeding. The debts were plain legal demands; the estate ample and tangible, and the remedy at law for the satisfaction of their debts, plain and certain. They required no aid from this Court, and they sought none.

The original bill was filed by the *executor*for the purpose of obtaining the construction of the Court, upon certain provisions of the will; but more particularly to have an adjudication as to the relative rights of the executor and the devisees. The original bill was filed 6th December, 1848. What is termed a cross bill was filed by S. B. Hunt and others, devisees, in January, 1849, The prayer of this latter hill was that the EXECUTOR might he *discharged*from his trust, and that the MASTER might *tahe charge of the*estate, or rather that he should be “ directed to take an account of all the testator’s *debts*and *legacies,*and report a *provisional division thereof.”*Upon these pleadings a decree was pronounced from which an appeal was taken. In May, 1849, an order was passed, at the *167
      *instance*of the EXECUTOR, and with the urgent co-operation of the devisees, directing the master to call in the creditors, to report whether it was practicable to pay the debts and legacies from the *income*of the estate as directed by the testator, and, if not, whether any and what portion of the estate should be sold for the payment of the debts. An injunction was, at the same time, granted against any proceedings at law, on behalf of the creditors. The master afterwards submitted a report, from which it appeared that the debts and legacies amounted to about seventy thousand dollars, and that the income did not exceed six or seven thousand dollars.

In January, 1850, the cause was heard in the Court of Appeals. In delivering the decree the Court premise as follows : “ All parties concur that the testator’s project of paying his debts and legacies from the income must be abandoned as impracticable.” After disposing of what were termed the *rights*of the executor, it is remarked, “ the Court looks first to the interest of those for whom the executor is trustee, to wit, the creditors, &c.” The necessity of a sale under the order of this Court is shewn, in consequence of the right of the creditors to levy on any part of their debtor’s estate, without regard to the provisions of the will. But they proceed “ the Court, restraining the creditors, at law, is bound to provide a fund for their payment. By the provisions of the testator’s will, the real and personal estate are inseparably connected in the devises and bequests. The executor has no estate in the realty, and no authority to dispose of the personalty. A sale by the authority of this Court, would alone confer a good title upon a purchaser. It has been already directed that the debts should be established before the master. The sales should, therefore, be made by the master, and the fund disbursed by him, under the direction of the Court. To carry into effect these principles, a decretal order was passed which had been submitted *at the instance of the*devisees,” and which, with a slight modification, was adopted by the Court. It may be proper to re*168mark that the project of one class of the devisees for *a provisional division,*or apportionment of the *debts*and *legacies*had been strenuously resisted hy the other class of devisees, had been rejected by the decree of the Circuit" Court,- and was not renewed in the Appeal Court.

It was declared hy the Appeal decree, made 1st February, 1850, that “ the debts of the testator are to be borne by his devisees, Mrs. Hunt and Mrs. Colburn in equal proportions: the intention of the testator to equalize their shares being sufficiently apparent on the face of the will.” That the creditors who have proved their claims, *have a right to immediate payment by a sale,*and that the legatees have a right to be paid out of the income, with interest from one year after the death of the testator. That it is necessary that a sum sufficient to pay off the debts and legacies be raised by a sale, under the order of this Court, to prevent injustice and inequality by the arbitrary sale of property of either devisee, under execution, and to protect the legatees and tenants for life, from the indefinite postponement of the benefits intended for them by the testator. The creditors being thus declared entitled to “immediate payment by a sale,” and that it was *“*necessary that a sum sufficient to pay off the debts and legacies” (then reported at seventy thousand dollars,) “ be raised by a sale under the order of the Court,” in such manner as would prevent the injustice and inequality which would fall on the devisees by an arbitrary sale of the property of either under execution; the devisees, respectively, represented in what manner they desired the object to be effected. “ It is represented,” say the Court, “ that Mrs. Colburn desires her contributory part of the debts and legacies, to be raised by an *immediate*sale, and that Mrs. Hunt desires time to make arrangements with the creditors for her part.” It was, therefore, “ ordered and decreed that the master, after appropriating the sales of the residue (which was very inconsiderable,) and the balance in the executor’s hands, to the payment of the debts, proceed *169
      *forthwith*to raise, by a sale of real or personal estate devised and bequeathed to Mrs. Colburn, to be selected, if she thinks fit, by her, such a sum as, with what she has already contributed, will be equal to her portion of the amount, that may remain due for the testator’s debts and legacies after such application of the residuary estate, and that the money so raised, be applied to the payment of her part of the debts and legacies.” Mrs. Hunt “desiring time to make arrangements for paying off her part of the debts and legacies,” it was ordered that “ she have time till the first day of March ensuing, (one month,) for that purpose. And, in case the creditors be-not fully paid and satisfied by the said first day of March, then the master shall raise by a sale of the real and personal estate devised and bequeathed to Mrs. Hunt, to be selected if she thinks fit, by her, a sum sufficient to pay off the residue of the testator’s debts and legacies aforesaid.” It was also provided, in regard, both to Mrs. Colburn and Mrs. Hunt, that upon the payment of their respective proportion of the debts and legacies, the estate real and personal, or what remained of it, devised and bequeathed to each of them should be delivered to, and held by each of them according to the provisions and limitations of the testator’s will, “freed and discharged from any interference on the part of any of the parties to this suit, other *than creditors of the testator.'”*These latter words were not in the *project*as submitted by the devisees, but were specially added by the Court, for the obvious purpose of showing that it was not the intention of the Court to impair the light of creditors by any act of the Court; but to give to the devisees respectively, the possession and enjoyment of the property devised and bequeathed to them, when each had paid her moiety of the debts and legacies. The devisees had a right to no more than this, The creditors were not suitors asking aid. The interference, of the court was invoked for the benefit of the devisees. In the language of the decree, “the Court, restraining the creditors at law, is bound to provide a fund for their *170payment.” The *devisees*were *the*actors, seeking the benefit of the injunction, and undertaking to provide a fund for the payment of the creditors. The Court had distinctly refused to apportion the *debts*between them, even *provisionally.*The fund thus to be provided under the Appeal decree, exceeded at that time, the sum of sixty thousand dollars. It was due to a large number of creditors, of various amounts, and the legacy to the Boyds. The creditors were declared entitled to *immediate payment by a sale.*The Master was ordered to raise *forthwith*by a sale of that part of the estate devised and bequeathed to Mrs. Colburn the sum to be contributed by her, and the residue by a sale of the estate devised and bequeathed to Mrs. Hunt, “ if the creditors were not fully paid and satisfied by the first day of March.”

The sales of the residuary estate amounted to about four hundred and forty-six dollars, and with some other funds received by the Master, reduced the sum to be raised by each devisee (as has been stated,) to, at least, thirty thousand dollars, or, an aggregate of sixty thousand dollars. The scheme of the Appeal decree was that this sum should be immediately raised for the payment of *all*the creditors whose debts were declared to be established, and *the legacy of the Boyds which was also fixed by the decree.*It was important that the whole should be *promptly*paid in. No creditor could call on the Master and insist on payment in full until the- entire fund had been raised. It was the *duty*of each of the devisees, Mrs. Hunt, and Mrs. Colburn, *to see that the decree made chiefly at*THEIR instance, and for their benefit, should be carried into effect. Neither was entitled to the delivery of the property devised and bequeathed to them respectively until the proportion of each devisee of the debts and legacies was fully paid and satisfied. *All the subsequent*embarrassment, *difficulty, and perhaps ultimate*loss, is probably attributable to the *failure*of both devisees to comply with the provisions of the decree. They took *immediate*possession of the property devised and *171bequeathed to them respectively. The claim of each creditor, and of the pecuniary legatees was ascertained and of record when the decree of the Appeal Court was rendered on the 1st February, 1850. If the whole fund had been *immediately*raised as *was directed,*each creditor and *legatee*could have insisted on payment by the Master. But, until the *whole*was paid, it was very easy for the Master to answer the application by saying that he had not funds to pay the particular applicant. And such was the fact. From February, 1850, until May, 1851, inclusive, it appears from the report now submitted, that the aggregate sum received from both legatees did not amount to twenty-five thousand dollars, that is to say, twenty-one thousand three hundred and seventy-seven dollars from Mrs.,Colburn, and three thousand five hundred and forty-four dollars from Mrs. Hunt. Up to the hearing of this motion (1st July, 1851,) Mr. Tupper, the successor of Mr. Laurens, reports a deficiency of contribution, amounting to thirty three thousand and fifty-six dollars. It was plainly the duty of Mr. Laurens, the former Master, to have raised Mrs. Colburn’s moiety by an immediate sale, which, it is said in the Appeal decree, “she desired” to be done. Equally plain was it the duty of the Master under the Appeal decree, “if the creditors were not fully paid and satisfied by the first day of March, 1850, to raise by a sale of the real and personal estate devised and bequeathed to Mrs. Hunt, a sum suflScient to pay off the residue of the testator’s debts and legacies.” It seems impossible for language to be more clear and explicit, or less liable to misinterpretation. *It was the language of the*devisees *themselves,*asking the Court to take from the creditors the power to sacrifice their property by a sale-for cash, through their agent, the Sheriff, and delegate it to the Master, who would make a sale for them on more advantageous terms. The reasons, or excuses, of the Master seem entitled to little consideration. It was sometimes said he had not raised the whole of Mrs. Colburn’s contributory share, because she had the privilege of selecting what part of *172her property should be sold, and she had, as yet, failed to select. On the part of Mrs. Hunt it was suggested that she was not bound to contribute until Mrs. Colburn had contributed. Something was said, too, about an arrangement which had been made on the part of Mrs. Hunt for a loan of twenty thousand dollars, to be paid on certain conditions and stipulations, and something might have been said with equal force, but was not, of an arrangement which Mrs. Colburn had made with Legare and O’Hear, for an advance by them of a certain sum, to make up the deficiency of her contributory share. The Court has nothing to do with these arrangements in decreeing upon the rights of the creditors. Whatever has been said about them, or done about them, was at the instance of the devisees to facilitate them in raising the money to comply with the decree of the Court. In reference to all these suggestions, it is only necessary to say, that on the first day of March, 1850, the Master had only to inquire whether the debts established and the *legacies*had been *fully paid*and *satisfied.*If not, it was his duty to have raised the fund *by sales*on the terms prescribed by the Appeal decree.

Mr. Tupper, in his report of 1st July, 1851, sets forth all the payments, or rather receipts from the respective devisees until that time. He also states the deficiency, and the amount yet to be paid by each devisee. It is the duty of Mr. Tupper under the Appeal decree, as it was the duty of his predecessor, to proceed forthwith to raise the amount, as reported by him to be due by the devisees respectively, in the manner prescribed by the Appeal Court. The sums, when raised, must be applied by him, in the first place, to the satisfaction of the *creditors,*and then of the legatees.

It appears from the account of the late Master with the respective devisees, which accompanies Mr. Tupper’s report, that he had received from Mrs. Hunt, on her account, five thousand eight hundred and three dollars and sixty.-nine cents, reduced by charges, purchases, &c., to three thousand five hundred and *173forty-four dollars and eighty-six cents, and that he had received on account of Mrs. Colburn, in cash and bonds, twenty-one thousand three hundred and seventy-seven dollars and forty-nine cents, and that of the sums thus received on account of these parties, a balance yet remained in the hands of the former Master unaccounted for, of three thousand one hundred and fifty-six dollars and seventeen cents. Much discussion took place at the hearing, as to the consequences if this sum should not be paid over by the late Master, or should not be ultimately recovered. Perhaps it is not necessary to determine definitely upon that question *at this time.*The sum to be raised according to the report, is independent of the amount of three thousand one hundred and fifty-six dollars and seventeen cents, which is assumed to be available. Mr. Tupper, the Master, will, therefore, proceed to carry out the directions of the Appeal decree, for the purpose of raising the sum reported by him to be deficient. It is also ordered and decreed that the late Master pay over to his successor in office, the balance reported to be due by him, and that in default thereof, the Master adopt the proper legal measures for collecting the same.

The Court is of opinion that if bonds, on which the testator was only surety, have been paid out of the assets of his estate, the residuary legatees are entitled to an assignment of them; but before any decretal order to that effect, the evidence must be adduced and a report made.

Mr. Tuper’s report of the 1st July, 1851, purports to be a statement of the balances due on claims heretofore established by decretal orders. In that respect it is only matter of information, and no clerical mistake, or error of calculation was suggested.

The Master has submitted in his report the reason for postponing the statement of an interest account between the devi-sees, and no information or statement was submitted, which rendered the reason unsatisfactory.

*174It is ordered that the report of Mr. Tupper, bearing date 1st July, 1851, be filed, and that he report to the next Court his further proceedings under the Appeal decree of February, 1850, and also his proceedings, under the orders now made.

At the next Term of the Court, a motion was made that the Master should be required to make the deficient money from the estate of Mathews in the hands of the devisees; but upon the intimation that no change was shown to have taken place since the last sittings, the motion was at that time informally disposed of by Chancellor Dargan, and no entry seems to have ■ been made of an order of dismissal. During the sittings of the Court of Equity for Charleston District, in February, 1853, Chancellor Dunkin again presiding, the subject was brought to the notice of the Court, for the third time, by petition, which was disposed of as hereinafter mentioned.

At June sittings, 1855, the matter was again brought before the Court upon the following petition:

“ The humble petition of Charles LeRoy Boyd, Jr., James W. Boyd and Mathews Barksdale Boyd, an infant by his guardian, Charles Le Roy Boyd, sheweth unto your Honors that your Petitioners, parties defendants in the above case, on the 2nd March, 1853, filed a petition in the said cause, to the effect following, to wit: ‘That by a decree in the said cause a legacy of twelve thousand dollars, with interest, under the will of William Mathews, was ordered to be paid to your petitioners from funds to be raised by the Master in Equity, in Charleston District, from the estate of the said William Mathews in the hands of the devisees, and residuary legatees under the will of the said William Mathews.’

“ ‘ They further shew that the amount due to them as aforesaid, was paid over to them by one of the Masters of this Court, less the sum of three thousand one hundred and fifty-six dollars and seventeen cents, the payment by the Master *175being in conformity with a decree of this Court, filed 1st September, 1851. That by the Master’s report at the June sittings of the Court, in 1851, upon which the Court acted in pronouncing said decree, it appears that the above amount of three thousand one hundred and fifty-six dollars and seventeen cents, was a sum unaccounted for by Master Edward R. Lau-rens, who had recently resigned to Master James Tapper, his successor in office. By the terms of the decree of September, 1851, the funds in his hands were to be paid in satisfaction of the debts of the estate of the testator, and then of the legacy due your petitioners, and Master Tupper was ordered to institute suit against said Master Laurens and his sureties, on his official bond, for the said sum of three thousand one hundred and fifty-six dollars and seventeen cents.

“‘Your petitioners shew that suit was accordingly immediately instituted, but that a defence set up by the sureties, and judgment has not as yet been obtained. They further shew that said Master Laurens is himself insolvent, and that his defalcations, as Master, are to such an amount, that it is believed that even though the defence set up by the sureties should fail, it will exeeed the penalty of the'Bond, and that said sum of three thousand one hundred and fifty-six dollars and seventeen cents can therefore never be raised by this suit; and that the part of said sum which may eventually be raised by this means, will, through the litigation threatened, be long withheld. Your petitioners shew, that from the principles declared in the decree already referred to, of 1st September, 1851, they are advised that the estate of William Mathews, in the hands of the devisees and residuary legatees, to wit: Ann A. Oolburn and child, and George B. Hunt, William M. Hunt, B. E. Hunt, Jr., and Jane B., wife of William Mootry, (the life tenant, Mrs. Susan B. Hunt, having since the said decree was pronounced, deceased), is responsible to your petitioners for the residue of the legacy bequeathed by testator, remaining unpaid.

*176“ ‘Your petitioners shew that on the 23rd February, 1853, an order for sale of the shares of the estate of William Mathews, held by the last named devisees, was ordered by this Court, for the purpose of partition, and that on the 28th of the same month, another order was granted for completing the partition and distribution of said estate ; that said orders were made in a ease in which George B. Hunt'is complainant and William M. Hunt, B. P. Hunt, Jr., William Mootry and Jane B., his wife, are defendants; that your petitioners have not been made parties to these proceedings, and were, until last night, ignorant of the progress of the efforts at distribution. Your petitioners shew that if said distribution takes place, it must impede them in enforcing the decrees of this Court, awarding to them the legacy under the will of testator, and, perhaps endanger its ultimate collection.

“ ‘Your petitioners therefore pray that James Tupper, Master, to whom was committed the execution of the orders of 23d and 28th of January, be ordered to retain from the funds which may come into his hands, from the sales ordered, one-half the amount still due on the legacy bequeathed your petitioners by the will of William Mathews, deceased, and the same be paid over to your petitioners.’

“ Your petitioners further show, that the Chancellor having heard this petition, together with a motion for a reference, to ascertain the facts set forth, decided that such reference was quite unnecessary, inasmuch as all the facts were already within the knowledge of the Court.

“ The Solicitor for the petitioners then submitted the two motions referred to, and sufficiently described in the order dismissing them, copied below. After argument they were received by the Court for consideration, and before the rising of the Court, the following order was made and entered in the case:

*177
      *“Exparte*— Charles LeRoy Boyd,

*In re*— Lawton, Ex’or of Mathews, *vs.*

Hunt and OtheRS.

“ In this matter, two motions were submitted to the Court:

“ 1st. ‘That the Master proceed to raise three thousand one hundred and fifty-fire dollars and seventeen cents, with interest, from the estate of the late William Mathews, in the hands of his devisees and failing that motion then

“ 2. ‘ That the Master retain as much of the fund heretofore ordered to be partitioned in the case of Gfeorge B. Hunt *vs.*William M. Hunt, and others, as will pay one moiety of what is alleged to be still due on the legacy referred to in the pleadings.’

“ ‘ This is the substance and effect of the motions. To enter into the reasons of the judgment of the Court, would require a review not only of the decrees heretofore made, but also of the various proceedings under them in the office of the Master. After hearing the Solicitors in behalf of the several parties, it is ordered that the motion be dismissed.’

Benj. E. jDukkin.

‘ March 14, 1853.

“ From this order an appeal wras taken by your petitioners to the Equity Court of Appeals, sitting in Charleston, in January, 1854. Among other grounds of Appeal, the Solicitor of your petitioners had inserted in his brief the following, to wit: “ The fact being conceded that it is ascertained that by suit against Laurens and his sureties the deficiency in the legacies of the Boyds cannot be recovered, it is submitted that the time has arrived for definite action by the Court, on the point made as to the parties upon whom the loss must ultimately fall.”

*178“ Your petitioners further shew that when said cause was called in its order, and the brief read, it was suggested by the Chancellor, from whose order the appeal was taken, that it was not considered by the Court as “conceded,” or as ascertained, that “ by the suit against Laurens and sureties the deficiency in the legacies of the Boyds could not be recovered;” whereupon leave was granted to your petitioners to withdraw the appeal, and to renew the motion whenever the proceedings against Laurens and sureties should have terminated, provided it should then appear that the deficiency in the legacies of your petitioners would not be made good to them in that way.

“ Your petitioners now present the fact to your Honors, that said proceedings have terminated and that the deficiency in said legacies has not been recovered in full. It will appear in the report of Mr. Tupper, one of the Masters of this Court, made at the present sittings in this case, that the amount of two thousand and thirty-four dollars and fifty-nine cents, has been paid over to the Solicitor of your petitioners on the claim against Laurens and his sureties, in his behalf, which is the *full amount*of the *share*of the *penalty*of the official bond of E. R. Laurens, the whole of which has been paid in by the sureties, to which this claim is entitled.

*“*Your petitioners further shew, that out of this sum their Attorney and Solicitor, -who prosecuted the claim in the Courts of Law and Equity, is entitled to a fee, which your petitioners pray may be deducted, and the nett amount only charged to them.

“ Your petitioners further pray that Mr. Tupper, the Master, be ordered to ascertain the amount of the legacies decreed to be paid to your petitioners by this Honorable Court, which remains at this time unpaid, and that he be ordered to raise said sum from the estate of the late William Mathews, in the hands of his devisees, and make payment, in full, to your peti*179tioners of the legacies which your Honors have decreed to be due to them from said estate.”

Dunkxn, Ch. The facts upon which this petition is presented will appear from the Circuit decree of July, 1851, and the subsequent proceedings. (It may he proper to remark, in passing, that the printed copy furnished to the Court is marred by italicising, *etc.,*where nothing of the kind appears in the original decree. Running commentaries incorporated into the decree, or notes of interrogation, etc., would scarcely do more to embarrass the comprehension of what has been actually decided by the Chancellor.) It is stated in that decree that a balance yet remained in the hands of the former Master, unaccounted for, of three thousand one hundred and fifty-six dollars. And that “ much discussion took place at the hearing, as to the consequences if this sum should not be paid over by the late Master, or should not be ultimately recovered.” But it was deemed permature *then*to determine that question.

At the February Sittings, 1852, and again in February, 1853, applications were addressed to the Court, by the petitioners, to subject the estate of the testator, William Mathews, deceased, in the possession of their co-defendants, his residuary devisees and legatees, to the payment of the above stated deficiency. As proceedings were then pending against the sureties of the late Master, the result of which would ascertain if any deficiency actually existed, and, if any, to what extent, the application of the petitioners was dismissed.

At June Sittings, 1855, Mr. Tupper reported that the amount ascertained to be due by the late Master for moneys received in the principal case was three thousand seven hundred and sixty-nine dollars and thirty-two cents, which by the decree of the Court, had been charged on his fourth official bond; that from his sureties on that bond (who had paid the amount of the penalty) he had received two thousand two hun- *180and fifty-nine dollars and fifty-nine cents on this claim, which sum, after deducting the cost (two hundred and twenty-five dollars), he had paid over to the Solicitors of the Petitioners, leaving still due on their legacy a balance of one thousand seven hundred and thirty-four dollars and seventy-three cents, with interest from 27th June, 1854.

The original application of the petitioners is now rewewed. It would be impracticable to explain the reasons of this judgment without a recapitulation of much that is said in the decree of 1851. The appeal decree of 1st February, 1850, was made at the instance, and chiefly for the benefit of the residuary devisees and legatees. The amount of the debts and legacies had been ascertained. The sum to be contributed by each residuary devisee was about thirty thousand dollars. According to the obvious meaning, of that decree, the proportion of Mrs. Colburn was to be raised by an immediate sale of property (such as she should select) by the Master, .and the portion of Mrs. Hunt was to be paid into the hands of the Master in thirty days, or the Master should sell property to raise the amount. If this decree had been carried out by the parties, for whose benefit principally the Court had interfered, then, in March, 1850, each creditor and legatee could have immediately demanded his money. Instead of this, so late as June, 1851, the sum of twenty-five thousand dollars was deficient on the part of Mrs. Hunt, and Mrs. Colburn had paid, in cash and bonds, about twenty-one thousand dollars. Each of these parties threw the blame on the other; but the consequence was, that no creditor could coerce payment from the Master, and importunities of a pecuniary legatee would be still more unreasonable and equally fruitless.

The Court has no precise information as to the payments made on behalf of Mrs. Colburn and Mrs. Hunt subsequent to September, 1851, and under the orders therein made. But it is certain that, at that time, neither of them had complied with the decree of February, 1850. The inconsiderable funds in the *181bands of the Master were not available either to creditors or legatees because of the default of the parties in making up the entire sum as required by the decree of the Appeal Court. The ultimate loss must fall upon those by whom it was probable occasioned. Mr. Laurens remained in office until May, 1851. The petitioners stand upon the same footing now, as they did in June, 1851, tvhen they first insisted on their rights, and the residuary devisees stand in no different position from that which they then occupied.

The Court, in July, 1851, having deferred a decision upon the question upon whom this loss should fall, the claim against the sureties of the late Master was prosecuted by the solicitors of the petitioners. It is submitted that the professional services should be remunerated out of the fund recovered, and the surplus only be credited on the amount due to the petitioners. This seems reasonable, and the Master’s report of the 4th June, 1855, should be reformed accordingly. A reference is ordered to ascertain the proper remuneration to be allowed.

It is ordered and decreed that James Tupper, Esquire, one of the Masters of this Court, raise from the estate late of William Mathews, deceased, in the hands of his devisees, under the decrees of this Court, such amount as is necessary to pay the legacy of Charles LeRoy Boyd, Junior, James W. Boyd, and Mathews B. Boyd, under the will of their grandfather, the testator, as ascertained by former decrees of this Court. It is further ordered and decreed that, in the first instance, one moiety of the said amount be raised from the estate in the possession of Mrs. Colburn, and the other moiety from any portion of the estate in the possession of the children of Mrs. Hunt, or which may be in the custody of the Court, and to which they are entitled. It is finally ordered that Mr. Tupper report upon the matters referred to him, and also his proceedings under this decree.

The defendants appealed on the grounds:

*1821. That the defendants, devisees of William Mathews, did pay into the hands of the Master in Equity, as directed by the Court, the amount decreed to be paid by them ; and that the decree against them was thereby, to that extent, satisfied.

2. That the loss to the petitioners was occasioned by the defalcation of the officer of the Court, and the insufficiency of his official bond to secure the funds in his hands; and it is respectfully submitted that the Court has no authority to require parties, who have satisfied a decree against them, to guarantee the solvency of its officers.

3. If parties in Court, against whom a decree has been pronounced, delay obedience to it3 requirements, other parties, who may have right to complain, are entitled to remedies according to the established rules of the Court, which they are at liberty to pursue or not, as they may be advised; but it is not competent for the Court to punish such delay, by requiring more than one satisfaction.

•4. That the decree under which the defendants paid their money to the officer of the Court was for the benefit of the petitioners as well as of the other parties, and was not objected to by them, and they should not be relieved from its consequences at the expense of the defendants.

5. That the decree is contrary to law and equity.

*Northrop,*for appellants.

*Hayne,*contra.

The opinion of the Court was delivered by

Johnston, Ch.

In the decree of 1850,(a) which was made *183in *Lawton*vs. Hunt, to which the present petitioners, as well as the devisees and other legatees of William Mathews, were parties, the petitioners’ claim as legatees was established; and th’e late Master (Laurens) was ordered by sale of property demised and bequeathed to Mrs. Colburn and Mrs. Hunt, severally, to raise money sufficient to pay off creditors of the estate and to pay and satisfy legacies, which had been ascertained and reported. This included the legacies of the present petitioners.

It appears that Mrs. Colburn and Mrs. Hunt paid to the Master a sum sufficient to satisfy these legacies ; but that the Master wasted a portion of it, leaving the legatees unsatisfied to the extent of three thousand one hundred and fifty-six dollars and seventeen cents. By pursuing the sureties to the official bond of Laurens, the petitioners have been enabled to recover two thousand two hundred and fifty-nine dollars and fifty-nine cents, (less expenses of recovery, two hundred and twenty-five dollars); thus reducing their loss (interest being computed) to one thousand seven hundred and thirty-four dollars and seventy-three cents, on the 27th of June, 1854.

The petitioners have been let in by the present decree, to a remedy against the devisees, for the balance due the petitioners of money paid by the devisees to the Master, in satisfaction of their claim, but which the Master has wasted.

It appears to the Court, that when money is paid to an officer charged by law to coerce payment, the debt or demand on which it is paid, is extinguished as to him.who makes the payment *:*
      *(a)*
      **and the remedy of the party aggrieved by a subsequent misappropriation of the fund must be against the officer. The debtor is not to be converted into a surety of the officer whom he has not selected, and whom he has been unwillingly compelled to recognize. It is enough for a party of this description to have paid his debt once: and, besides, in *184the decree before referred to (of 1850), it is expressly provided, that when payment is made, the property of the devisees shall be “ freed and discharged from any interference on the part of any of the parties to the suit.”

It does not militate against this doctrine, that moneys deposited *pendente*lite, or as a security, or under interlocutory proceedings, may be at the risk of the depositor.(a) The money in this case was paid on a claim finally adjudicated and allowed, and under an authority in the Master to coerce payment and receive the money.

It is ordered that the petition so far as it seeks to subject the property of the defendants, be dismissed, and the decree so far as it gives a remedy by sale of their property reversed.

Dab,gan, Oh., concurred.

Wakdlaw, Oh., absent from sickness.

4 Strob. Eq. 23.

*O’Neall*vs. *Lusk,*1 Bail. 220.

3 Danl. Pr. 2019.