3rd. When one another refund. 3. In what cases one legatee can oblige another to refund. If the assets were originally sufficient to satisfy all the legacies, legatee can make and afterward, by the wasting of the executor, there is a deficiency, an unsatisfied legatee cannot oblige a satis fied one to refund, whether the legacy were paid him with or without suit (h). But if the assets were not originally *sufficient to pay all the legacies, and one legatee receives his legacy in full, in that case the unsatisfied legatees may compel the one so paid to refund (i). But it should seem, that in no case, where the executor is solvent, can an unsatisfied legatee maintain a suit against another who has been satisfied: because the remedy is in the first place against the executor, who, by paying the one legacy, has admitted assets to pay all (k). with interest. It remains to be considered, in what cases legatees, who are comLegatee refund. pelled to refund, shall do so with interest. On this ing not charged point Lord Eldon has stated (7) the rule to be, "If a legacy has been erroneously paid to a legatee, who has no farther property in the estate, in recalling that payment, I apprehend that the rule of the Court is not to charge interest: but if the legatee is entitled to another fund making interest in the hands of the Court, justice must be done out of his share.” The rule applied in Gillespie v. Alexander, 3 Russ. 130 (ante, p. *1209), confining the liability of the legatee to a proportionate share of the debt, does not apply where the estate has not been administered by the court: Davies v. Nicolson, 2 De G. & J. 693. (h) A fortiori there can be no such right where the loss of the assets has occurred, not by the conduct of the executor, but from merely accidental circumstances: Fenwick v. Clarke, 31 L. J. Ch. 728. Where one of several residuary legatees, or next of kin, has received his share of the estate of a testator or an intestate, the others cannot call upon him to refund if the estate is subsequently wasted; secus, if the wasting has taken place before such share was received. The burden of proof lies on those who call upon the residuary legatee or next of kin to refund, to show that the wasting took place before the share was paid over. Peterson v. Peterson, L. R. 3 Eq. 111. (i) By Sir Joseph Jekyll, in 1 P. Wms. 495. Walcot v. Hall, 1 P. Wms. 495, note (1), by Mr. Cox. S. C. 2 Bro. C. C. 305. See also the observation of the Master of the Rolls in Gillespie v. Alexander, 3 Russ. Ch. C. 133, and David v. Frowd, 1 M. &. K. 200. In a suit by a residuary legatee for the administration of the testator's estate the court has jurisdiction to compel the residuary legatee to refund, for the purpose of paying the legacy of a legatee who is not a party to the suit, assets paid to the residuary legatee by the executor before the suit. Prowse . Spurgin, L. R. 5 Eq. 99. (k) Orr v. Kaines, 2 Ves. Sen. 194. 1 Rop. Leg. 399, 3rd edit. (7) Gittins v. Steele, 1 Swanst. 200. See also Jervis v. Wolferstan, L. R. 18 Eq. 18. + Statutory bond. The statute requires executors and administrators to take a refunding bond on payment of any legacy or distributive share, in New Jersey (1877 Rev. 765, § 67), Pennsylvania (1883 Purd. Dig. 553, § 222, 555, § 232), Tennessee (1884 Code, § 3158); or authorizes them to require it before payment, Colorado (1891 An. Stats. § 4800), Florida (1892 R. S. § 1908), Georgia (1882 Code, § 2587), Illinois (1891 R. S. c. 3, § 115); or they may be so authorized by the Probate Court, in Maine (1883 R. S. c. 65, § 30); and taking such bond relieves them from liability for debts subsequently discovered, in Virginia (1887 Code, § 2707), West Virginia (1891 Code, c. 87, § 30). The court may require such bond on ordering distribution in Alabama (1886 Code, 2195), Arkansas (1884 Dig. Stats. § 149), Connecticut (1887 G. S. § 633), Delaware (1874 R. C. 549, § 37), Kansas (1889 G. S. § 2897), Ohio (1890 R. S. § 6128); and must require it on ordering payment before the expiration of the time for presentment or settlement, Arkansas (1884 Dig. Stats. § 148), California (1885 Civ. Code, §§ 1658, 1661), Indiana (1888 R. S. § 2380), Iowa (1888 R. C. §§ 2430, 2439), Maryland (1888 P. G. L. Art. 93, § 140), Massachusetts (1882 P. S. c. 136, § 20), Michigan (1882 An. Stats. § 5966), Mississippi (1892 Code, § 1961), Nevada (1885 G. S. § 2916), New York (R. S. 8th ed. 2562, § 44; Code C. P. § 2719), Oregon (1892 An. L. 1191), Rhode Island (1882 P. S. c. 187, § 10), as to intestate distribu-. tion only; Steere v. Wood, 15 R. I. 199; Wisconsin (1889 R. S. § 3941). And no suit can be brought for payment of a legacy without tender of a refunding bond, in New Jersey (1877 Rev. 581, § 5); even after settlement of account. Cowell v. Oxford, 1 Halst. 432. This does not apply, however, to a suit brought after twenty years against the executor of a deceased executor. Betts v. Van Dyke, 13 Stew. (N. J.) 149. Under these statutes it has been held that the bond may be given by a guardian of an infant distributee, Keith v. Jolly, 26 Miss. 131; that the recovery against a specific legatee should be the value of the thing bequeathed, Ross v. Davis, 17 Ark. 113; that the amount of the bond may be controlled by the court, Kirkpatrick v. Gibson, 2 Brock. 388; that its object is to indemnify against debts of the estate, and not against an attaching creditor of the legatee, Desmond v. Fisher, 152 Mass. 521; that it applies even to an annuity to testator's grandchildren, Kerrigan v. Kerrigan, 2 Redf. 517; but not to a legacy which the will directs should be paid within the year, Matter of Selling, 5 Dem. 225; nor to a legacy payable on a contingency, and retained meanwhile by the executor as trustee. Estate of Gormley (Pa.), 25 Atl. Rep. 816. A refunding bond is not waived by assent to the legacy. Nelson v. Cornwell, 11 Gratt. 724. In a suit on the administrator's bond for nonpayment of a distributive share, the tender of a refunding bond must appear affirmatively. Ordinary v. White, 14 Vroom 22. The execution of the refunding bond is a condition precedent to the payment of the distributive share, Sanderson v. Sanderson, 17 Fla. 819; even on settlement of account and order awarding the balance to a sole distributee, Simpson's Appeal, 109 Pa. St. 383; and creditors not known to the administrator at the time of distribution must look to it for payment. Schaeffer's Appeal, 119 Pa. St. 640; Maxwell v. Smith, 86 Tenn. 359. In Tennessee, the Court of Chancery may order a distribution without refunding bond, Murgitroyd v. Cleary, 16 Lea 539. And it will not be required after order of distribution and death of the administrator without appointment of any successor, People v. Admire, 39 Ill. 251; nor upon distribution by an administrator without order of court to himself as executor of the sole distributee. Weir v. People, 78 Ill. 192. Recovery by executor. In the absence of a refunding bond, a voluntary payment to a legatee cannot be recovered by the executor, Anderson v. Piercy, 20 W. Va. 282; without proof of special circumstances, Bumpass v. Chambers, 77 N. C. 357; and not merely because the assets were overestimated, Davis v. Newman, 2 Rob. (Va.) 664; or subsequent claim made for debts, Edgar v. Shields, 1 Grant Cas. 361; nor because the amount was required for the executor's commissions and expenses, Lang v. Howell, 20 Abb. N. C. 117. But the executor may call on legatees where a special fund set apart by the testator for payment of debts proves unexpectedly insufficient by reason of a financial panic, Smith v. Smith, 79 N. C. 455; or otherwise. Alexander v. Fox, 2 Jones Eq. 106. He cannot recover a legacy paid under a foreign probate without settling an account here. Campbell v. Sheldon, 13 Pick. 8. The executor's claim to have a legacy refunded may be used by him as a setoff against a debt due to the legatee as creditor. Smith v. Smith, 79 N. C. 455. But where a legacy was paid to the legatee's husband, and a refunding bond taken from him, his liability to refund is not available as a set-off against rents collected for the wife. Mollan v. Griffith, 3 Paige 401. Recovery by creditor. Independent of the statutes, an action lies against legatees by a creditor, Colgan v. Dunne, 50 Hun 443; for the amount received by them, Collier v. Miller, 42 N. Y. S. R. 66; in general, without interest, McKenzie v. Smith, 2 Murph. 92; taking judgment quando against the executor and for their proportionate shares against the several legatees. Jones v. Sikes, 85 Ga. 549. He may recover against one or all of them, irrespective of their right to contribution or exoneration inter se. Badger v. Daniel, 79 N. C. 372. So, he may have a bill in equity against heirs and legatees for a debt accrued after distribution. Davis v. Van Sands, 45 Conn. 600. He may sue the legatee's personal representatives. Tripp v. Talbird, 1 Hill Ch. 142. And he can sue the legatee, although the executor has retained sufficient assets and wasted them, Stuart v. Kissam, 2 Barb. 493; McLure v. Askew, 5 Rich. Eq. 162; or lost them by delay in investment, and by bad investments made under direction of the court, Leake v. Leake, 75 Va. 792; even although the creditor has accepted the executor's note for the debt. McLure v. Askew, ubi supra. But without evidence of the insolvency of the other legatees, he can only recover from a legatee his proportionate share. Wynn v. Bryce, 59 Ga. 529. Recovery by the legatee. Where one legatee is paid above his proportion, the others may sue him for contribution, Bermingham v. Forsyth, 26 S. C. 358; or may look to the executor, Gallego v. Attorney-General, 3 Leigh 450; or may require the residuary legatee to refund for preferred legacies. Stephenson v. Oxson, 1 Bail. Eq. 274. And a legatee who refunds is entitled to have contribution against other legatees. Tripp v. Talbird, 1 Hill Ch. 142. But when sufficient assets have been retained, the unpaid legatee cannot have .contribution against the legatee who has been paid. Lupton v. Lupton, 2 Johns. Cas. 614; Demere v. Scranton, 8 Ga. 43. But where A.'s liability to refund is barred by the Statute of Limitations, it cannot be used by the disappointed distributee as a set-off to a debt due by him to A. Montgomery's Appeal, 92 Pa. St. 202. *CHAPTER THE FIFTH. OF PAYMENT OF THE RESIDUE. SECTION I. Of the residuary legatee.t When the executor has paid all the debts, the funeral and testamentary expenses (a), and all the legacies heretofore mentioned, he must, in the last place, pay over the surplus or residue of the personal estate to the residuary legatee, if any such be nominated: And although the residuary legatee dies before the payment of debts, and before the amount of the surplus is ascertained, yet it shall devolve on his personal representative (b). Duty of executor as to converting money and handing over the clear residue. the assets into The residuary legatee has a right to insist that the executor, before the end of the first year after the testator's death, shall, if possible, convert all the assets into money (bb) and pay the funeral and testamentary expenses, debts and legacies, and hand over the clear residue to the residuary legatee, or, if the residue be bequeathed to one for life, to secure the capital in the manner authorized by the Trust Investment Act, 1889 (52 & 53 Vict. c. 32) (c), for the benefit of those ultimately entitled, and if, from any cause, the assets cannot be sold, so as to effect this purpose, the right of the tenant for life will commence from that date (d). No particular mode of expression is necessary to constitute *a residuary legatee: It is sufficient, if the intention of What terms of the testator be plainly expressed in the will, that the surplus of his estate, after payment of debts and legacies, shall be taken by a person there designated (e). See American note at end of this Section. (a) Including all costs of the administration of the estate. Trethewy v. Helyar, 4 C. D. 53. (b) Brown v. Farndell, Carth. 52. Toller, 341. (bb) It is not however incumbent on an executor to convert every portion of the estate into money. He may, even 51 bequest are suffitute a residuary cient to consti. legatee. though no express authority be given him for that purpose in the will, agree with the residuary legatees that they shall accept any portion of the estate as part of their share. Re Lepine [1892], 1 Ch. 210. (c) See post, p. *1710 et seq. (d) Wightwick v. Lord, 6 H. L. C. 217, 235, ante, pp. *1248, *1249. (e) Bland v. Lamb, 2 Jac. & W. 399. [*1316] [*1317] The following bequests have been held to constitute the donees residuary legatees under the respective wills. "I think there will be something left after all funeral expenses, &c., being paid, to give W. B., now at school, toward equipping him to any profession he may hereafter be appointed to" (f). "If there is money left unemployed, I desire it may be given in charity" (g). "I guess there will be found sufficient in my banker's hands to defray and discharge my debts, which I hereby desire E. M. to do, and keep the residue for her own use and pleasure" (h); "all that may remain of my money after my lawful debts and legacies are paid" (i); "whatever remains of money" (k); "all the rest of my money, however invested" (7); "household furniture, goods, ready money, debts, and securities" (m); "all other chattels " (n); "after these legacies and my doctor's bills and funeral expenses are paid, I leave (sic) to my sister without any power or control of her husband" (o) [without stating what was left by *testator]; "what is left, my books and furniture and other things" (p); "everything of every kind that I have now or may have at the time of my decease in my apartments at A. or elsewhere" (q); "after payment of all my just debts, I give all the remainder of money, goods and debts due to me" (~); “one-half of the money of which I am possessed to A. and the remainder equally between B. & C." (8) ; "the whole residue of money, except such things as are undermentioned" (t). Hearne v. Wigginton, 6 Madd. 120. Fleming v. Burrows, 1 Russ. 276. The term "residuary legatee" is not of an invariable nature: it must be fashioned and molded by the context of the will. Singleton v. Tomlinson, 3 App. Cas. 404. So in a will which contained a direct gift of real property, the "residuary legatee" was held to take the freehold estate of the testator not specifically devised. Hughes v. Pritchard, 6 C. D. 24; but he does not take real property undisposed of by the will where there is nothing in the context of the will to enable the court to read the words "residuary legatee" as "residuary devisee," e. g., where there is no direct gift of real property, and where the testator had none at the date of the will. Re Methuen and Blore's Contract, 15 C. D. 696. |