legatee to refund. The legatee takes subject to the liability of being compelled to refund at the suit of a creditor. And where the executor has not been culpable, and is compelled to pay the debt, it seems to me he should be substituted to the rights of the creditor he has paid. So far the strict rule of the English courts might properly be relaxed in conformity with the more liberal spirit of our legislation in regard to executors, and with the principles which led the court to give relief in Miller's Ex'rs v. Rice, 1 Rand. 438.

Jones v. Williams, 2 Call, 102, was a controversy about accounts, and the question could not have arisen; for the money advanced to the distributee was advanced as a loan, to be returned if on a settlement he was not entitled to it; and for that reason the executor was allowed interest on the sum decreed to him.

Bowers' Ex'r v. Giendening, 4 Munf. 219, decides merely that an executor against whom a creditor obtains a decree may compel the legatee to refund.

In Gallego's Ex'rs v. Attorney General, 3 Leigh, 450, 24 Am. Dec. 650, it was decided that where the estate proved deficient by an unexpected depreciation of the property after some of the legatees were fully paid, the unpaid legatees have a right to look to the executors for their ratable proportions of the fund, and are not bound to have recourse to the legatees who were fully paid to compel them to refund. In England, the unsatisfied legatee cannot maintain a suit against the legatee fully paid to compel him to refund, if the executor is solvent. Such Judge Tucker lays down to be the rule; and therefore, though he was of opinion in Gallego's Ex'rs v. Attorney General that the executors were liable only for the ratable proportion of the legacy, and not for the whole, upon the ground that payment in full to one was an admission of assets sufficient to pay all, he still held, that as the executors were quite solvent, the legatees had no right to call upon those paid to refund. The case did not call for a decision on this point, and the other judges did not notice it. If, as I conceive, the executor who has been made liable at the suit of the creditor can only be permitted to compel the legatee, whom he has voluntarily paid, to refund, by substituting him to the rights of the creditor, who could have proceeded in the first instance against the assets; where it is shewn that no such original right to charge the assets exists, there is no right to which the executor can be substituted.

But even if, in a case where there was an original deficiency of assets (as in Gallego's Ex'rs v. Attorney General), it should be held that the executor, having through mistake paid one legatee in full, and having afterwards been compelled to pay the proportions of the others out of his own pocket, might compel the legatee overpaid to refund; the case would still fall short of that under consideration. Here the executor has not been called upon by a creditor to make good assets improperly paid away, or by an unpaid legatee to pay him a ratable proportion of his legacy out of his own pocket: he is seeking to recover

for his own benefit alone. To sustain his claim to such a recovery would be against the whole series of authorities in Engiand, commencing at an early period, and without the support of a single authority or dictum in our own courts.

It is the duty of the executor to make himself acquainted with the condition of the estate. The means are in his own hands, and if he neglects to avail himself of them it is his own fault. He is not compelled to pay the legatees until the debts are discharged, and until he has ascertained the precise extent of the assets. He can decline paying except under the decree of a court, and then he is entitled to call upon the legatee to refund if the estate was originally deficient; and he may with us always require a refunding bond. If, without using any of these precautions, he voluntarily pays the legatee, the latter has a right to consider the money as his own; subject, it is true, to be called upon to refund at the suit of creditors, or of an unpaid legatee if the assets were originally deficient. But these are contingencies too remote in his apprehension, when a payment has been made to him under such circumstances, to have any influence on his conduct. The hardship of the case is greater upon the legatee than the executor. He has been in no default. No duty was imposed upon him to examine into the state and condition of the assets. He receives what a payment under such circumstances has impressed him with a conviction he will never be called upon to refund. Such unexpected additions to men's fortunes are frequently spent without much consideration; wasted in the gratification of some want to which the legacy has given birth, or released to some more needy relative. It would be the grossest injustice, under such circumstances, to permit the executor, who had thus misled him by his negligence or inattention to his duties, to compel him at some distant day to refund the money. The case of a legatee, and as between him and the executor, seems to me much stronger than the cases of Brisbane v. Dacres, 5 Taunt. 144, 1 Eng. C. L. Rep. 43, and Skyring v. Greenwood, 4 Barn. & Cress. 281, 10 Eng. C. L. Rep. 335, in the first of which cases Gibbs, J., remarked, that he who receives money so paid "has a right to consider it as his without dispute; he spends it in confidence that it is his; and it would be most mischievous and unjust, if he who has acquiesced in the right by such voluntary payment, should be at liberty, at any time within the statute of limitations, to rip up the matter and recover back the money."

The only modifications of the general rule which our laws seem to call for are those already indicated. A payment to one in full shall not be construed into an admission of assets sufficient to pay all. It merely furnishes a strong presumption, which may be rebutted by proof of an original deficiency. And in all cases where the executor is compelled to pay a creditor, he shall, upon the principle of substitution, have the right to compel the legatee to refund, and this although he had notice of the debt at the time of payment, unless he has been guilty of culpable neglect of his duty to inform himself of the condi

tion of the estate. But where he has not been subjected to liability at the suit of a creditor, he shall not be permitted to recover back, for his own benefit, what he has voluntarily paid to the legatee.

*

Upon the whole * * it seems to me that both the rules of law and the particular circumstances of this case should preclude his recovery, 25

25 "In England, it seems to be settled by the authorities, a legatee is not bound to refund at the suit of the executor, unless the payment by him was compulsory, or unless the deficiency was created by debts, which did not appear until after the payment of the legacy, in either of which cases the executor might compel the legatee to refund the excess paid on the legacy. See Toll. Ex'rs, 341; 2 Fonbl. Eq. 376; Coppin v. Coppin, 2 P. Wms. 296; Orr v. Kaines, 2 Ves. Sr. 194. But the general spirit of the decisions in Virginia and West Virginia has relaxed much of the severity of the ancient English cases, when no fraud or misconduct is imputed to the executor. See Jones' Ex'r v. Williams, 2 Call, 103, top page 86; Burnley v. Lambert, 1 Wash. (Va.) 312; Gallegoe's Ex'rs v. Lambert (Tucker's opinion) 3 Leigh, 465 [24 Am. Dec. 650]. I am therefore of the opinion that there is no inflexible rule, which refuses to an executor under any circumstances the right to recover back from a legatee an excess of advancements which may have been made to him, even when the deficiency was created by debts which appeared before the payment of the leg. acy, and the payment was voluntary; but in such case the executor will have to make a very strong case to rebut the almost conclusive presumption that he had a sufficiency of assets to justify the payment of the legacy, which arises from the mere fact that he has paid the legacy. As an instance, where the law would permit an executor to recover, I may put the case where the assets were apparently abundant when the legacy was paid, but were subsequently rendered deficient by a general and destructive fire. See Miller v. Rice, 1 Rand. (Va.) 438. The general rule is, as laid down in English cases quoted [cited] above, and, to justify a departure from this general rule, the executor must show that in the execution of the will he has done everything which a prudent man ought to have done, and has done nothing that a cautious man ought not to have done; and it will not suffice to show that he has been guilty of no fraud but has acted bona fide and with honest intentions. That the English rule has not been relaxed in Virginia or West Virginia beyond what is above stated, abundantly appears from the cases of Davis v. Newman, 2 Rob. (Va.) 664 [40 Am. Dec. 764], Nelson's Ex'r v. Page, 7 Grat. (Va.) 160, Anderson v. Piercy, 20 W. Va. 282, and Shriver v. Garrison, 30 W. Va. 456, 4 S. E. 660." Green, J., in McEndree v. Morgan, 31 W. Va. 521, 531, 532, 8 S. E. 283, 291 (1888).

"The claim that the executor makes of an alleged overpayment by him to a legatee is a matter, so far as a recovery thereof by the executor is concerned, between him and such legatee. In his accounting the executor charges himself with all the assets of the estate which he has received, and credits himself with the payment of such items as he thinks are or are not proper charges against the estate; and unless the estate were liable to pay any particular item, it should not be allowed, notwithstanding the payment had been made by the executor. An overpayment by the executor to any person entitled to a distributive share does not in any way diminish the amount of the estate which the law says is in the executor's hands for distribution. The law does not recognize any such overpayment, and does not, therefore, permit the executor to credit himself with the amount of the excess. In legal contemplation the sum is in the hands of the executor as assets of the estate which he must pay over to the parties entitled thereto." Peckham, J., in Matter of Underhill, 117 N. Y. 471, 474, 475, 22 N. E. 1120, 1121 (1889). See, also, Matter of Robertson, 51 App. Div. 117, 64 N. Y. Supp. 385 (1900).

BUCHANAN v. PUE.

(Court of Appeals of Maryland, 1847. 6 Gill, 112.)

26

MARTIN, J. This is an appeal from a decree of the chancellor, of the 1st June, 1846, by which it was ordered that the specific legacy, which had been delivered to the defendant by the complainant, should be returned to the complainant, to be applied by him as the executor of Edward Buchanan, in satisfaction of the testator's debts.

With respect to the second point made by the counsel for the appellant, we are of opinion there is no circumstance in this case which precludes the appellee from reclaiming this legacy in a court of equity. It has not been pretended that the insufficiency of the assets to satisfy the debts of the testator has been caused by the fraud or misconduct of the executor. The fund created by the sale of the farm in Baltimore county has been faithfully applied to the purposes designated by the will of Edward Buchanan; and after having been exhausted in the payment of his debts, there still remains outstanding debts amounting to the sum of nineteen hundred dollars, in addition to the sum of three hundred and forty-five dollars and thirty-eight cents, due to the executor for disbursements made, and debts paid by him, on account of the estate. And, we think, that as it is evident in this case that the legacy was delivered by the appellee to the appellant upon the entire confidence, sincerely entertained, that the assets would be sufficient for the payments of the debts of the testator, but have proved to be inadequate, without the fault of the appellee, he was entitled to coerce a return of it, through the instrumentality of a court of equity. Upon this subject, there appears to have been some contrariety of opinion in the early cases, but the principle we have announced will be found to be sustained by the weight of authority, both in England and in this country.

In the case of Davis v. Davis, reported in 8 Viner Abrgt. 423, it was held:

"That an executor may institute a suit against a legatee, to refund a legacy voluntarily paid, as well as a creditor; and for this reason, an executor, paying a debt of the testator out of his own pocket, stands in the creditor's place, and has the same equity against the legatee to compel him to refund."

In Hawkins v. Day, decided in 1753, Ambler's Rep. 160, Lord Hardwicke said:

"The rule in this court, to grant prohibitions in case legatees sue in the spiritual courts, and refuse to give security, is out of use; but the court will decree a legatee to refund."

In Edwards v. Freeman, 2 P. Wms. 446, Lord Chief Justice Raymond declared:

26 The statement of facts is omitted, and part only of the opinion is given. COST. WILLS-44

"That if an executor pays a legacy on supposition that there are assets to pay all the other legacies, and there happens a deficiency, the court will make the legatee, who is paid his full legacy, refund."

The principle thus announced in the cases to which we have referred was recognized by Lord Alvanley, in the case of Johnson v. Johnson, 3 Bos. & Pul. 169, by Chief Justice Marshall, in Riddle v. Mandeville, 5 Cranch, 330, 3 L. Ed. 114, and has been directly adjudicated by the Supreme Court of New Jersey, in the case of Harris v. White, 5 N. J. Law, 425, and by the presiding judge of the Court of Appeals of Virginia, in Gallego's Ex'rs v. Attorney General, 3 Leigh, 489, 24 Am. Dec. 650. And Judge Story, when treating of this subject in the first volume of his Equity Jurisprudence (section 90), says:

"In the course of the administration of estates, executors and administrators may often pay debts and legacies upon the entire confidence, that the assets are sufficient for all purposes. It may turn out from unexpected circumstances, or from debts and claims made known at a subsequent time, that there is a deficiency of assets. Under such circumstances, they may be entitled to no relief at law. But in a court of equity, if they have acted with good faith, and with due caution, they will be clearly entitled to it, upon the ground that they will be otherwise innocently subject to an unjust loss, from what the law itself deems an accident."

The same doctrine is maintained in Walker v. Hill, 17 Mass. 385.

*

We place the right of the appellee to maintain this suit, upon the plain and acknowledged principle "that the payment of the legacy was made on a mistaken ground, with respect to the facts of the case, and that therefore it would be unjust and inequitable in the legatee to withhold it." Hutchins v. Hope, 12 Gill & J. (Md.) 256.

Decree affirmed.27

27 See Sellers v. Smith, 11 Ala. 264 (1847); Clifton v. Clifton, 54 Fla. 535, 45 South. 458 (1907). Where persons entitled to a distributive share of an intestate's estate are known to exist, but through error of law the administrator distributes the whole estate to others, or where through error of law the personal representative pays to some one not entitled to take, the personal representative can recover the money mistakenly paid only if in the given jurisdiction money paid with full knowledge of the facts, but under mistake of law, may be recovered. Recovery was denied in Phillips v. McConica, 59 Ohio St. 1, 51 N. E. 445. 69 Am. St. Rep. 753 (1898); Shriver v. Garrison, 30 W. Va. 456. 4 S. E. 660 (1887), and Scott v. Ford, 75 Or. 531, 78 Pac. 742, 80 Pac. 899, 68 L. R. A. 469 (1905). Compare Rogers v. Ingham, 3 Ch. D. 351 (1876). Recovery was allowed in Culbreath v. Culbreath, 7 Ga. 64, 50 Am. Dec. 375 (1849). See, also, Northrop v. Graves, 19 Conn. 548, 50 Am. Dec. 264 (1849). Even where recovery may be had for mistake of law alone the defendant's innocent change of position may be a defense. Brooking v. Farmers' Bank, 83 Ky. 431 (1885). And where recovery may not be had because the mistake is one of law only, the mistaken payment may be applied in extinguishment or reduction of a debt or liability actually due and owing. Hemphill v. Moody, 64 Ala. 468 (1879). In Williams v. McCardell, 14 S. C. 219 (1880), a distributee, who had been paid by the administrator out of the personal estate more than his total share of the real and personal estate of the intestate amounted to, died, and the other distributees sought on parti