#### *John McLure*vs. *Elizabeth*Askew, *executrix,*& *others.*

Bill to subject legacies assented to, and land, sold under a power conferred by the will to raise a fund to satisfy pecuniary legacies, to plaintiff’s dobt against the testator : the executrix had retained sufficient assets to pay the debt, but had wasted them, and was insolvent; and some eight years before the bill was filed, the plaintiff had taken the note of the oxecutrix in payment of the *debt:*— Held, that the executrix, who was a party defendant to the bill, was a competent witness for her co-defendants; and that plaintiff had no equity to subject the legacies and the land to his debt.

*163A creditor of testator taking the note of the executrix for the debt, *held,*upon the evidence, to have taken it as payment and discharged the estate of the testator.

An executrix who has retained sufficient assets to pay debts and legacies, and has wasted them, cannot sustain a bill against the paid legatees to compel them to refund.

The principles upon which executors, and unsatisfied legatees, may sustain bills to compel satisfied legatees to refund, examined.

The right of a creditor of the testator to follow legacies assented to, is a mere equity, and should not be enforced inequitably.

This cause was heard at Union, June 1852, before Johwston, Oh., who made the following decree :

JohnstoN, Ch. From the pleadings and the proof taken before the Commissioner, and the evidence taken at the hearing, and appearing on my notes, which fully disclose the case, I shall extract only so much as will serve to explain the judgment I am about to render.

This is a case in which a creditor seeks payment from the estate of his debtor, out of assets delivered over- by the executors, and in the hands of the legatees.

The debtor in this case was the late Dr. Askew. At the time of his death, which happened the 18th of January, 1841, he was indebted to the plaintiff, McLure, as the bill states, by sealed note, dated about the 4th of March, 1840, in the sum of $410 56J-, with interest from the 1st January, 1840, (subject to* a credit of $60, paid on it the 21st December, 1841,) and also in the further sum of $26 26J, upon open account.

Dr. Askew left a will, of which the defendants, Elizabeth Askew and W. T. Crenshaw, were executors.

Mrs. Askew, the executrix, who was the widow of Dr. Askew, on the 31st of December, 1842, took up the open account by her own note; and then, on the 22d of January, 1844, took up that note and the note of her testator, by giving the plaintiff her sealed note of that date, in her unofficial character, for $474 54, payable at one day.

A number of judgments, dating from the 20th February, 1849, to some time in April, 1849, and amounting in all to near $1300, was obtained against Mrs. Askew for her private debts ; *164under which her property was sold out by the sheriff for $1120 36; leaving her insolvent for the balance of those judgments.

On the 24th of February, which was but a few days after the first of these judgments was obtained, McLure brought suit upon his note; but in 1851, his counsel dropped the proceeding, and returned the note to him; and on the 2d March, 1852, he filed this bilb

The bill alleges, and it is proved, that both the executrix and executor are insolvent; and, having no relief against them, the plaintiff contends that he has an equitable right to recover bis demand against the estate of his original debtor, and to have satisfaction out of assets delivered to *legatees*under the will.

For the understanding of this matter, it is necessary to state some of the provisions of Dr. Askew’s will.

tie left, besides his widow, three sons, Henry S. D. Askew, James M. Askew, Wm. N. Askew, and four daughters, Charlotte, (wife of Henry Anderson,) Eunice, (wife of Newton Anderson,) Jemima, (wife of W. ,P. Anderson,) and Sarah, (wife of the defendant, W. T. Crenshaw.)

By his will, duly executed 20th of December, 1837, he directs, that, for payment of his debts, his executors should sell so much of his plantation stock as his wife might think she could conveniently spare — and if that should not suffice for the purpose, then that they should sell so much of his land as should be required.

He then devised “ all his lands, remaining after the payment of his debts,” to his wife — on her death to be sold, and the proceeds equally divided among his seven children.

He bequeathed her, for life, six *negroes,*Nathan, Abby, Scilla, Mary, Becky, and Maria, with the power to appoint any three of them, by will, at her pleasure, among his children; and such as she should not appoint, to be divided, with the increase, equally, between his two daughters, Charlotte and Jemima, and his son, Henry S. D. Askew.

*165He bequeathed, also, to his wife, absolutely, all his farming utensils, all his house and kitchen furniture and utensils, and so much of his plantation stock as she might not wish sold for the payment of his debts. •

He bequeathed .to his daughter, Jemima, absolutely, three negroes, Huldah, Evelin, and Manda; and $200, to be paid on her marriage, or attaining majority; to be raised by a sale of land; with power to the executors to make the sale.

To his son, Henry S. D. Askew, he gave two negroes, Matilda and David, absolutely; and $200, to be .paid at his majority; to be raised by sale of land, &c.

There are various other legacies to his children, not necessary to be noticed.

By a codicil executed the 14th of January, 1841, the testator, reciting the power he had given his executors, to sell lands for the payment of *debts,*declares, “as I have since sold the land thereby intended to be sold, I hereby revoke that clause in my said will.” He makes some other alterations, not necessary to be stated.

All the legacies have been long ago assented to, and .delivered — the last of them (except as I shall hereinafter state,) more than eight years ago — and the legatees, with the exception of Henry S. D. and James M. Askew, are without the State, and have no personal property in this jurisdiction.

It might have been stated, that, on the 8th of May, 1849, the executors, for the purpose of raising the $200, payable to Jemi-ma on her marriage, (which had taken place,) and the $200 payable to Henry S. D. at his majority, (which occurred the 10th of January, 1847,) sold and conveyed to the said Henry S. D., and to Wm. P. Anderson, at the price of $901 50, a small body of land, described in the pleadings.

The effort is" to subject this land, and the negroes in the hands of these legatees, to the payment of the debt formerly held by the plaintiff against the testator.

The conveyance of the land might be suspected of being colorable; but there is no such charge in the bill. The ground *166taken is, that the debt of the testator still equitably subsists against the land, irrespective of the fraudulency or fairness of the conveyance.

But the first question is, whether the plaintiff is a creditor of the testator, as he assumes in his bill. That he held demands against him at his death, is admitted. But these demands were surrendered to the executrix, upon the consideration that she should substitute her personal note for the amount. Whether this substituted note was a payment of the demands against the testator, depends, in my opinion, upon the intention of the parties. That is payment, which is intended as payment.

The evidence is, that “the estate was to be freed from debt, and the liability of the executrix substituted in place of that of the estate.” *“*The plaintiff proposed to the executrix to take up the estate note, &c., and give her own individual note.” “ The executrix asked him, after she took them up, what she should do with them, and he said she might take them home, tear them up, bum them, or do what she pleased with them, and she tore the name off in his presence.”

The estate, in my opinion, was, (according to this evidence,) intentionally discharged, (a) If the plaintiff has any equities upon the estate, they are not equities belonging to him as a creditor of the estate — he is simply a creditor of Mrs. Askew ; and if *she*being executrix, has any equitable right to subject the assets in the hands of the legatees, the plaintiff may, perhaps, as her creditor, insist on that equitable right in her name.

Then, taking the executrix’s right to be the measure of the plaintiff’s, the inquiry is, could *the executrix*maintain this bill for the purposes indicated in it ?

“ It is the rule in Equity,” says Mr. Roper, (1 Rop. Leg. 408, *2d Lon. edit., chap*9. *Abatement and refunding of*legacies,) “ to presume that where an executor pays over a legacy, 'he has possessed assets sufficient to pay all the legacies ; and although *167the fact may not be so, yet not to admit proof to the contrary. Therefore, in such cases, executors will be obliged to make up the deficiency out of their own money, as the Court will not permit them to institute suits against the legatees, whom they have voluntarily paid, to oblige them to refund.”

It has been sometimes supposed, that a distinction obtains between legacies voluntarily paid or assented to by executors, and payments of legacies to which the executor is enforced *in in-vitum*by the judgment of a Court; and it has been suggested, that, in the latter case, the executor is better entitled than in the former to recoup, in case of insufficiency of assets to meet creditors or other legatees. To this point Mr. Roper quotes *Nexornan*vs. *Barton, Grove*vs. Banson, and *Hodges*vs. *Wad-dington,*(lb. 409.) I think, however, that this distinction must be doubtful.. It would seem, upon principle, that the. recovery against the executor, must be regarded as *res judicata*against him, and conclusive of every defence which it was in his power to set up in that suit; as certainly an insufficiency of assets, — if that were then known to him, — would have been. The more reasonable doctrine would seem to be that of *Nel-thorpe*vs. *Biscoe,*(1 Chan. Ca., 135,) where, without reference to any distinction between payments made voluntarily, or, *in invitum,*it was said, and admitted by the Court, that if executors pay away assets in legacies, and *afterwards*debts appear, and they be obliged to pay them, *of which debts they had xio xiotice before the legacies were paid,*the executors, by a bill, might compel the legatees to refund.

When one legatee has been paid in full, while other legatees of equal grade remain unsatisfied, these latter *legatees*have, in general, no right to compel the former to abate or refund, but must go against the executor, unless it can be shewn, that there was an original deficiency of assets to meet the legacies remaining unsatisfied. In *that case,*a refunding will be decreed, so as to put all the legatees upon their proper footing, in regard to the actual assets. But, if, at the time that one legatee was paid, the executor retained enough to pay the other, though the ex*168ecutor wasted those latter funds, the unsatisfied legatees are not entitled to any thing from the paid legatee, who has obtained no more than his due. He is no surety for the executor’s administration. And if, after he had received his own legacy, he had filed a bill to prevent the executor from wasting the residue in his hands, his bill would have been dismissed as impertinent ; so that he has no power to regulate the after conduct of the executor in such a case, and should not be responsible for it.

Even upon this principle, between legatee and legatee, (if the executrix in the present case can claim its benefit,) she can have no claim against the legacies to which she has assented. It is in evidence that she retained enough to pay all demands against the estate; and if she has wasted what she thus retained, her own misconduct, in this respect, is the worst reason she could possibly urge for a decree against the legatees.

Then, again, in relation to the land conveyed, in order to raise the pecuniary legacies paid to the two younger children, — there was no deficiency of power under the will. If there was, it is for those entitled to the land, to make the complaint. The executrix could not disaffirm her own act, if she desired to do so.

It remains only to state that the plaintiff is, himself, perhaps, responsible for, at least, a large part of the debt, the payment of which he claims out of others.

The property given to the widow under the will, is charged ’ with payment of debts. She was chargeable with the debts in respect to this property. Could she have claimed credit for the notes she took up against the other legatees ?

At the sale of her property by the sheriff, including that given to her under the will, the'plaintiff purchased several valuable parcels of it, at apparently under-value. He holds that property in the right of the widow; and if his debt were now chargeable to the estate, must not that property be first exhausted ?

There still remains one other consideration. If the plaintiff were still entitled in Equity to be regarded as a creditor of the estate, after taking another security, the estate’s assets became, *169as to him, the secondary security, and he discharged it by his *laches*in regard to the primary security. After the executrix gave him her note, it is in evidence that she went to him three years in succession, and offered to sell property to him — and he replied, “oh, no; hold on, this is not a good time to sell property. Hold on, I will never distress you.” His right to go against the legatees is a mere equity, and should not be enforced inequitably. (2 Hill Ch. 462.)

It is ordered that the bill be dismissed.

The complainant appealed, upon the grounds:

1. Because the acceptance of the sealed note of the executrix, by the plaintiff, was no discharge of the estate of her testator, and was not intended to be so, the execirtrix never having charged the estate with the payment of the same.

2. Because the land conveyed to H. S. D. Askew and W. P. Anderson, should have been decreed liable to plaintiff’s demand.

3. Because the negroes devised to the executrix should have been decreed liable to plaintiff’s demand.

4. Because the Court should have decreed against the executor and executrix, so as to make any assets which might hereafter come into their hands, liable to the payment of plaintiff’s demand. (b)

*5.*Because the plaintiff was entitled to a reference to ascertain the fact whether, when the specific legacies were delivered over, the executrix retained sufficient assets to satisfy plaintiff’s demand.

6. Because Elizabeth Askew was an incompetent witness.

*Dawkins,*for appellant.

*Herndon,*contra.

(a)

**Vide *Fraser*vs. *Hext,*(2 Strob. Eq. 257;) *Dogan*vs. *Ashby,*(1 Rich. 36;) *Chastain*vs. *Johnson,*(2 Bail. 574:) *Thornton*vs. *Payne,*(5 Johns. R. 74;) *Douglas*vs. *Fraser,*(2 McC. Ch. 106;) and *Wardlaw*vs. *Gray,*(2 Hill. Ch. 644.)

(b)

 Ko sucli claim set up in the bill, nor made at the hearing. The bill alleged that all tho assets wore exhausted, except that delivered to the legatees.

The opinion of the Court was delivered by

JohnstoN, Ch.

This Court has considered all the grounds of appeal, and is entirely satisfied with the decree : and it is *170deemed unnecessary to add anything to the observations of the Chancellor, except upon the sixth ground, in respect to which he has said nothing in his decree.

If the plaintiff, upon the case made in the bill, and with the parties who were before the Court, had been entitled to a decree against the estate, — binding against Mrs. Askew, as executrix,— her interests, as between that liability and her liability on the note she had given to the plaintiff, would have been equally balanced. A satisfaction of either demand, would be a discharge of the other: and it was immaterial to her which of them she was made liable for.

The evidence she gave, to protect the legacies in the hands of the legatees from liability to pay her note to the plaintiff, or whatever demand he might have against her as executrix, was certainly evidence *against*her interest; which was to discharge her own liabilities out of those legacies.

It is ordered, that the decree be affirmed, and the appeal dismissed. '

DunkiN, DargaN and Wardlaw, CC. concurred.

*Appeal dismissed.*