Appeal of Brown, executor of Edgar

JULY TERM, 1788. Appeal of Brown, executor of Edgar. HesponsibiMi/y of executors. Where one executor had received money belonging to the estate of the testator, and paid it over to hia co-executor, who became insolvent; it was held, that though he would be chargeable, if there were creditors, and a deficiency of assets to satisfy them, yet, that he was not answerable to the legatees. This was an appeal from the orphans’ court of Philadelphia county, on the following ease: Brown, having received 400?. on account of the estate of his testator, Edgar, paid it over (according to his uniform practice on such occasions) to his co-executor Dougherty. In Brown’s books, this money was charged generally, as so much cash paid to Dougherty ; but, in Dougherty’s books, credit was given for it on account of the estate of Edgar. Dougherty became insolvent; and upon a settlement of Brown’s administration, the orphans’ court refused to allow him the 400?. thus paid over to his co-executor ; but charged him with the principal sum, and interest from the time he received it, until the year 1776 (nine years), dropping the interest from that time until 1781, and afterwards reviving it. It ivas argued in the January term, by Wilcocks, in support of the appeal, and Lewis, against it ; when three points were made : 1st. Whether the money was a loan to Dougherty, or a payment to the estate of Edgar ? 2d. Whether, if it Avas a payment to the estate of Edgar, Brown was thereby discharged ? and 3d. Whether interest was payable to the residuary legatees, who were the appellees upon this occasion ? [MAJORITY — McKean, Chief Justice.] The Chief Justice, having stated .the points that were made in the cause, now delivered the opinion of the court. McKean, Chief Justice. From the evidence, we must determine, on the first point, that the money was a payment to the estate of Edgar. It was *3121 Brown’s constant practice to transfer all his receipts *to Dougherty ; and this sum of 400?. is credited to him in the accounts of the estate kept by the latter. With respect to the second and third points, it must be observed, that the courts of chancery make it a general rule, that he who receives money should be answerable for it; and therefore, if one executor becomes insolvent or bankrupt, the other shall not be charged. There is a difference, however, between legatees and creditors; the former being appointed, as well as the executor, by virtue of the testator’s will; and consequently, cannot impose the same responsibility as the latter. The case in 1 P. Wins. 244, is the only one in point; but on that authority, and the justice of the matter itself, under all its circumstances, we are of opinion, that, although Brown would be chargeable, if there were creditors, and a deficiency of assets to satisfy them ; yet, that he is not answerable to the legatees, The 400i. must, therefore, be deducted from the account, with the nine years’ interest which is charged upon it. As to the rest, we think, Brown ought to be well satisfied to pay the interest; particularly, as it is not charged from the year 1776 to the year 1781. The decision of the orphans’ court was accordingly affirmed ; deducting 400i., and nine years’ interest, from the account. The distinction adopted in this case, between legatees and creditors, is said by Mr. Toller, in his Law of Executors, &c. (Mr. Ingraham’s edition, p. 484), “ to rest on no authority; the rule is general, that executors joining in a receipt, shall all be answerable.” And see Mr. Cox’s note to Churchill v. Hopson, 1 P. Wins. 241, the case cited by C. J. McKean in support of this distinction. Brown’s Appeal is said, in Sterrett’s Appeal, 1 P. & W. 421, to have been erroneously reported. Nevertheless, it appears to be settled, in this state; that between an executor and the legatees, a case is to be decided upon a more liberal view of his discretion, than as against creditors. Bruner’s Appeal, 69 Penn. St. 46. And see McNair’s Appeal, 4 Rawle 164, where the authorities upon this subject are collected by Judge Kennedy, with his customary exhaustive diligence. The conflict between the cases is referred to by Judge Lowrie in Ducomman’s Appeal, 17 Penn. St. 271. And see Bowker’s Estate, 8 W. N. C. 493; Getz’s Estate, 6 Id. 416; Lightcap’s Estate, 27 Pitts. L. J. 201; s. c. 28 Id. 236.