acted unfairly) paid to various legatees of the second class the full amount bequeathed to them, and the fund having proved deficient, so that there must be a general abatement among them, two questions arise: 1. To whom are the unpaid legatees to look for their legacies? and, 2. Are those who have been paid liable to refund at all?

As to the first I can have no doubt. They have to look to the executors, and to them alone, as they are solvent. If, indeed, they were insolvent, then they might or might not have a title to redress from the overpaid legatees, according to the principles which will be presently referred to. But the executors being solvent, there is no pretense for saying that instead of looking to them, to whom the administration of the fund has been intrusted by the testator and by the law, they must look to those to whom they have unadvisedly paid it away.

That upon general principles the legatee has a right to demand payment of his legacy from the executor himself, instead of being turned over to compel legatees to refund who have been paid too much, can not be denied. It would be a waste of time to cite authority, or to offer reasons for such a principle. The argument, indeed, has rather tended to admit it, but to insist upon an exception arising out of the particular provisions of this will. These provisions are, the direction "to pay Mrs. Fisher her five thousand dollars as soon as possible, knowing she is in need;" and this clause: "with respect to the payment of the different legacies left by my foregoing will or part of my residuary estate, I leave to the judgment of my executors to begin paying those that they may think are most in need." It is contended that these clauses justified prompt payment, if the assets were adequate; that the assets were deemed adequate; and that an unforeseen depreciation has occasioned the existing inadequacy.

The cases cited, in which executors have been relieved against the charge of devastavit on the ground of the reduction of the assets by unforeseen accidents, are not to be questioned. The executor who pays simple contract debts when there were abundant assets, and those assets have been reduced by a general and destructive fire, or by eviction by title paramount, which could not be foreseen, is surely entitled to relief: 2 Freeman, 1; 1 Madd. 1, 63; 1 P. Wms. 354; 1 Rand. 421. In Miller v. Rice, Id. 438, the executor, while the assets were abundant, confessed assets and gave a forthcoming bond, and afterwards, the assets becoming deficient by a general depreciation of

property, he was relieved, and justly, for he had not voluntarily paid; he was sued; could he have been required or expected to plead a false plea? When he did plead, he could neither have pleaded plene administravit nor plene administravit præter, for he had abundant assets. He was bound, then, to let the judgment go; and if he had not done so, it would have resulted in the same thing. His plea would have been falsified, and judgment entered. When, therefore, he was about to suffer for his promptness and fair dealing, he was relieved, and properly relieved.

In this case, however, the state of things is very different. To justify a departure from the general course of administration, the executors ought to show that they have done that which, in the execution of this will, with its broad discretion, prudent men ought to have done. On the one hand they were bound, indeed, as soon as possible, on account of her needy circumstances, to have paid Mrs. Fisher her legacy. This was one injunction of the testator. But there was another more imperative. It was to pay all the legatees of the second class, either in the will or codicil, pari passu. It can not be pretended that if the deficiency had been foreseen such payment would have been good. Now the executors ought to have foreseen its possibility, at least, and to have guarded against it. Their testator had expressly directed that the sales should not be hurried, as the time was unfavorable. The depreciation of property had commenced, and might continue. It was imposble to say that the property would pay the large sums charged upon it. What, then, was to be done in this state of conflicting duties, of which the superior was to secure equality to all? If it was impossible to reconcile them, the subordinate should have given way, and Mrs. Fisher ought not to have been paid; for, though she was to be paid as soon as possible, the possibility contemplated was a possibility consistent with the state of things in other respects. It was, in the strict sense, very possible to pay her the day after the testator's death; but this he did not mean.

It was not, however, impossible to reconcile these conflicting duties. Two obvious modes presented themselves: to require security to refund, which every executor has a right to require from a legatee whom he pays in advance of other legatees; or, if Mrs. Fisher's situation did not enable her to give such security (of which there is no evidence), that was itself an additional motive for retaining the principal, and paying her the annual interest; or for vesting the principal in stock for her benefit,

but under their control, in case the affairs of the estate should make it necessary to reclaim it. And if her necessities required an advance of part of the principal, they should cautiously have advanced only so much as would, under any conceivable state of things, have fallen to her share. In truth, however, there is no evidence that the wants of this good lady would not have been adequately met by a payment of the interest. If her situation was such, I repeat, that it was a motive for additional caution; particularly if, as is contended, other legatees are to be turned around to her, instead of looking to the solvent executors; for they may well say that the executors had no right to pay over their money to an insolvent person.

The case of Mrs. Fisher is stronger than that of the other legatees who have been overpaid. As to them no observation can be necessary. The executors had no right to pay them in anticipation, to the prejudice of others. They are therefore liable to the plaintiffs for the full amount of their proportions.

Vern. 225; 1 Bro. C. C.

The other question proposed, is as to the liability of the legatees, who have been overpaid, to refund. Authorities have been cited to show that when an executor has voluntarily paid or assented to a legacy, it is to be taken to be an admission of the sufficiency of the assets, and the legatee will not be compelled to refund: 2 Ves. sen. 194; 1 Rop. on Leg., c. 9; 2 P. Wms. 296; 1 Eq. Cas. 239, pl. 25; 2 484. The first of these cases is the strongest of them all, and therefore shall be adverted to particularly. Now, upon examining the opinion of the court, it is evident that the very great weight attached to the admission of assets there, by the payment of the legacy, arose principally from the particular circumstances of the case. The executor had returned no inventory of the estate, and had paid off all the other legatees. And even in that case, it is not alleged by Sir John Strange, that the presumption is conclusive. If he had so decided, it would have been against the general principle which considers all such presumptions liable to be rebutted. The payment of the full amount of one legacy, furnishes indeed a presumption, and a very strong presumption, that there is enough to pay the rest. But what is there in the nature of the situation and character of an executor that shall exclude him from this common privilege of repelling by evidence a presumption of fact against him? There is nothing. An executor may have paid one by mistake, or he may, from kindness to that one, have been willing to run the hazard of deficiency. But these would not

be reasons for his being compelled to pay another out of his own pocket. I think, therefore, that the authorities can only be understood as saying that payment to one affords the strongest presumption of sufficiency to pay the others, but not as denying the right of the executor, in a contest with those others, to rebut that presumption.

The question is more difficult as between the executor and the legatee who has been paid. The cases cited are certainly very strong to show that where an executor has made voluntary payments, he shall not recover them back, though the assets prove deficient. It is said to be otherwise where the payment is compulsory: 2 Vern. 205. Or the deficiency of assets was created by debts which did not appear till after payment of the legacy: 2 Fonbl. Eq. 377. It is admitted, indeed, that though the executor can not compel the legatee to refund what was overpaid, other legatees may, where the assets were originally deficient, and all were bound to abate proportionably. But where the assets were sufficient, but have been wasted by the executor, who has become insolvent, even those who have not received anything shall not force him who has to refund; for they shall have no advantage of his diligence: Toller's Law of Ex'rs, 341; 2 Fonbl. Eq. 376; 1 P. Wms. 495; 1 Ves. 194.

Notwithstanding the cases which have been decided in England, where the executor is entitled to the residuum, that the executor shall not recover back from a legatee what has been overpaid him, I can not think that such is held to be the inflexible law with us. If, indeed, the advances have been long since made, and the estate distributed many years, the executor's bill to refund would not be entertained: Robertson v. Archer, 5 Rand. 319. But the very ground upon which this case was decided negatives the general proposition, since the court would scarcely have proceeded upon the narrow principle if the broad principle had been admitted. Indeed, in the wellknown case of Burnley v. Lambert, 1 Wash. 312, it had been said by the president of this court, after pronouncing that the executor was the proper judge of the ability of the testator's estate, "that after the assent of the executor the legal property is completely vested in the legatee, and can not at law be divested by the creditors. That in such case the creditors have a double remedy: 1. Against the executors at law, in which case the executors have their remedy in equity to compel the legatee to refund; or, 2. The creditors," etc. This opinion is but in unison with the general spirit of our decisions, which

have relaxed much of the severity of ancient adjudications in those cases where no fraud or misconduct is imputed to the executor in the management of the estate, nor any apparent advantage derived to him from his errors or omissions, but he appears to have acted bona fide and with honest intentions: 2 Call, 86. I am therefore inclined to think that there is no inflexible rule which refuses to an executor, under all circumstances, a right to recover back from a legatee an excess of advancements which may have been made to him above his ratable proportion of his legacy. The executors in this case might therefore file a cross-bill, if they please, to have that matter fairly settled.

The cases cited by Mr. Leigh, of Brisbane v. Dacres, 5 Taunt. 144; and Skyring v. Greenwood, 4 Barn. & Cress. 281; 1 Com. Law Rep. 43, 46; and 10 Id. 335, 338, are not, I think, decisive of this case. Sir V. Gibbs says, speaking of the right to recover back money paid by mistake of law, but under full knowledge of the facts, that "the party submitting to the demand, and paying the money, gives it to the person to whom he pays it, and closes the transaction between them." "He who receives it 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 voluntary payment, should be at liberty, at any time within the statute of limitations, to rip up the matter and recover it back. He who received it is not in the same condition. He has spent it in the confidence it was his, and perhaps has no means of repayment." In the case of Skyring v. Greenwood, Chief Justice Abbott expresses the like opinions yet more strongly. But both rely upon the fact that the party receiving had a right to consider what was paid as his absolutely and without dispute. But the legatee who has received his whole legacy in advance is not precisely in this situation. He knows that no act of the executor can absolve him from refunding at the suit of a creditor, or even at the suit of a legatee, if the executor is insolvent. He does not, therefore, fall within the principle of either of these cases in this respect; and certainly not within the first, for another reason. The mistake here is a mistake of fact, or, if you please, an erroneous inference from facts within the executors' knowledge; the mistake there was a mistake as to the law; and where a doubtful question of law arises, if the party who might litigate the right submits to the demand, he can never recall the act upon the ground that he has erred. For,