with an agent of the defendants, P. & Co., as a security for [ *488] cash to be advanced *by them to M. C., for a purpose totally foreign to the trusts he was to discharge, namely, for the purpose of extending the trade he was carrying on on his own account.(k)

Particular circumstances did also furnish a sufficient equity to enable a Court of Equity,-in Bonney v. Ridgard, to allow specific legatees of leaseholds for years to follow them in the possession of a purchaser from the executrix; that is, to turn the purchaser into a trustee for the legatees; but in this case the Court by analogy to the statute of Limitations, refused relief, on the ground of the length of time which had elapsed between the plaintiffs' right occurring, and their prosecuting that right:(7) and in Andrew v. Wrigley, to allow specific legatees of leaseholds for years to follow them in the possession of purchasers from an administratrix with the will annexed; but in this instance also the Court refused relief, by reason of length of time; as here the plaintiffs, who were legatees after the death of the administratrix, to whom the premises were bequeathed for life, did not apply for relief, until after the death of the administratrix, and the lapse of twenty years from the time of the sale. (m)

On the interposition of a Court of Equity against an executor's alienation of assets, the cases and authorities appear to warrant these general conclusions: that the Court will not interfere merely on the ground, in the case of a sale or mortgage, that the purchaser or mortgagee had notice of the will, (n) or that the property was assets, (0) or was specifically bequeathed:(p) where the alienee has, for a vauable consideration, gained the legal estate, it must be a very powerful equity to take it from him;(9) where the alienation is made for the executor's own benefit, an argument in support of it is, that the executor was the sole residuary legatee, (r) or one of several residuary legatees;(s)" and, if there are more [ *489 ] executors than one, that they all joined in the alienation, although one only was interested in it;(1) and, where such alienation is made by an executor and residuary legatee, and some time, as more than two years, after the testator's death, a farther argument in support of it may be drawn from a supposition, that the executor might in that period, by advances on account of the trust, have entitled himself to reimbursement out of the assets: (u) where the property is pledged by the executor, an argument to sustain the transaction is, that the pledge was made, not for a debt antecedently due by the executor, but for money advanced at the time of the pledge:(v) with reference to a pledge, a Court of Equity excludes the broad and general proposition, that no man can advance money upon a bond, or other chose in action, of the testator, without implying a fraudulent collusion with the executor to misapply the assets:(w)

(r) 4 Bro. C. C. 136; 17 Ves. 163, 164. (s) 3 Atk. 241; Bro. C. C. 136, 137;

7 Ves. 167; 17 Ves. 164.

(t) 3 Atk. 241, 242, 244; 4 Bro C. C. 137; 7 Ves. 167.

(u) 7 Ves. 166, 167, 168; 14 Ves. 363. See 17 Ves. 155, 156.

(v) 2 Dick. 725; 14 Ves. 355, 361, 362;

(p) 2 P. W. 149; Amb. ed. Blunt, Ap- 17 Ves. 155, 170; 4 Madd. 357, 358. pend. 797; Madd. 357.

(w) 14 Ves. 363.

(9) 3 Atk. 238.

the remedy of a legatee, who is deprived of his legacy by a wrongful alienation by the executor, is against the executor himself. (a)

A cause of the interference of equity is some fraud or collusion betweer. the executor and alienee:(y) as, if the alienee is "a party and consenting to, and contriving, a devastavit;"(z) or if, in the case of a sale, it is made at a nominal price,(a) or fraudulent undervalue. (b) And in some cases, perhaps, a cause for the interposition of equity may be, a particular trust, on which the property is bequeathed by the testator.(c) And, at least in some instances, an argument for the like interference, in favour of a specific legatee, is, that the sale was to one, who [ *490 ] had notice there were no debts, or that all the debts were paid. (d)

In the case of a pledge of a personal chattel, farther arguments for the interposition of equity are,-that the pawnee must know it is the property of the testator:(e) that he took it as a pledge for the private debt of the executor, (f) or debt incurred in a transaction having no reference to the testator's affairs:(g) that he took it as a pledge, not for money then lent or advanced at the time, but as a pledge for a debt contracted by the executor before, (h) or by way of security for future advances: (i) that the pledge was made by deposit only, and not by assignment of the chattel:(j) that it was made within a very short time, as in a month, after the testator's death:(k) that the pawnee acted on the faith of the executor's representation, by which he was induced to believe, that by the will the property pledged was actually the executor's own, and that the pawnee was guilty of gross negligence in not looking at the will, instead of taking the executor's word as to his right under it. ()

As the result of the authorities, Sir John Leach has stated,-"Every person, who acquires personal assets by a breach of trust or devastavit in the executor, is responsible to those who are entitled under the will, if he is a party to the breach of trust. Generally speaking, he does not become a party to the breach of trust, by buying, or receiving as a pledge, for money advanced to the executor at the time, any part of the personal assets, whether specifically given by the will or otherwise, because this sale, or pledge, is held to be, primâ facie, consistent with the duty of an executor. Generally speaking, he does become a party to the breach of trust, by buying, or receiving in pledge, any part of the *personal assets, not for money advanced at the time, but in [ *491 ] satisfaction of his private debt, because this sale or pledge is, primâ facie, inconsistent with the duty of an executor. I preface both these propo

(x) 2 Vern. 445; 2 P. W. 149; 7 Ves.

165.

(y) 1 West Cas. T. Hardw. 497; 1 Atk. 463; 1 Cox, 147; 2 Dick. 725; 17 Ves. 167; 3 Atk. 240; 2 Ves. 268, 269; Barn. Ch. Rep. 81.

(z) Crane v. Drake, 2 Vern. 616, 18 Vin. Abr. 121, in marg.; cited 1 West Cas. T. Hardw. 498, 3 Atk. 240, and 17 Ves. 162.

(a) 2 Dick. 725; 17 Ves. 167. (b) 2 P. W. 149; Amb. ed. Blunt, Append. 797; 2 Dick. 725; 17 Ves. 167.

(c) Barn. Ch. Rep. 81; 3 Atk. 239; 17 Ves. 161, 162.

(d) 2 P. W. 149; Amb. ed. Blunt, Append. 797; 17 Ves. 162.

(e) 2 Dick. 725; 7 Ves. 169; 14 Ves. 362; 17 Ves. 168.

(f) 2 Dick. 726; 7 Ves. 168; 14 Ves.

354.

(g) 2 Dick. 725.

(h) 2 Dick. 725; 7 Ves. 168; 14 Ves. 354, 355, 361, 362; 17 Ves. 155, 170; 4 Madd. 358.

(i) 7 Ves. 153, 168; 14 Ves. 354; 17 Ves. 170.

(j) 2 Dick. 725, 726; 14 Ves. 360; 17 Ves. 167.

(k) 7 Ves. 168; 14 Ves. 354, 361; 17 Ves. 170.

(1) 7 Ves. 170; 14 Ves. 361.

sitions with the term 'generally speaking,' because they both seem to admit of exceptions."(m) And the same learned Judge has elsewhere said, "A moatgagee or purchaser from the executor, of a part of the personal property of the testator, has a right to infer that the executor is, in the mortgage or sale, acting fairly in the execution of his duty, and is not bound to inquire as to the debts or legacies. But if the nature of the transaction affords intrinsic evidence, that the executor, in the mortgage or sale, is not acting in the execution of his duty, but is committing a breach of trust, as where the consideration of the mortgage or sale is a personal debt, due from the executor to the mortgagee or purchaser, there such mortgagee or purchaser, being a party to the breach of trust, does not hold the property discharged from the trusts, but equally subject to the payment of debts and legacies, as it would have been in the hands of the executor."(n)

On the subject of the interference of a Court of Equity, it remains to notice the following cases:

In Taylor v. Hawkins, where certain leasehold premises were specifically bequeathed to an executor, and he, in seven months after the testator's death, mortgaged the same, as security for a debt owing by himself personally, and for other sums to be advanced on his private account; and afterwards the premises were sold; the Court held, the mortgagees were entitled to be paid out of the purchase-money, before a bond creditor of the testator; the answer of this creditor not saying, he believed the mortgagees knew there were debts of the testator unpaid, or containing any other ground of inquiry into fraud or collusion on the part of the mortgagees. (0) In Keane v. Robarts, where the defendants R. and De L. were held not to be responsible to legatees and creditors for assets, Sir J. Leach distinguished the case from one of purchase or pledge [ *492 ] from the executors; saying, "It is the case of agents of the executors receiving money by the authority of the executors, and remitting it to them in the course of their duty as agents, and in the proper forms of business, leaving the application of it to the purposes of the will wholly in the power of the executors."(p) In Cubbidge v. Boatwright, the Court, on a bill filed by an administratrix de bonis non of C., set aside an assignment of a leasehold house, which H., an administrator with the will annexed of C., had made to secure an annuity, and also a subsequent sale of the house by H.'s executrix; on the grounds, that, under the circumstances of the case, it was impossible to say the property had been administered by H., and consequently, on H.'s death, it did not pass to H.'s executrix, but to the administratrix de bonis non of the original testatrix.(q) In Drohan v. Drohan, a Court of Equity set aside a lease of a farm, which a widow and administratrix had made at an undervalue, and to a lessee who had express notice, that the administratrix, and the children of the intestate by a former wife, had agreed to divide the property of the intestate, according to the Statute of Distributions, and that the administratrix was, by the children, called on to sell the intestate's interest in the farm.(r)

2.-The Statute of Frauds, 29 Ch. II., c. 3, enacts by section 7, that

(m) 4 Madd. 357.

(n) 2 Sim. & St. 205. See also Lowther v. Lord Lowther, 13 Ves. 104.

(0) 8 Ves. 209.

(p) 4 Madd. 332, 359.
(2) 1 Russ. 549.
(r) 1 Ball & B. 185.

"all declarations or creations of trusts of any lands, tenements, or hereditaments, shall be manifested and proved by some writing, signed by the party who is by law enabled to declare such trust, or by his last will in writing." But provides by its next section, "That where any conveyance shall be made of any lands or tenements, by which a trust shall or may arise or result by the implication or construction of law, then such trust shall be of the like force and effect, as the same would have been, if this statute had not been made."

If an executor lays out money, which is assets, in a purchase of land, a Court of Equity will not follow these assets into the land, if, in the consideration of the Court, there is not sufficient evidence to make the executor a trustee. (s) But to prove that the land was bought with the assets, and to create such a trust, parol evidence is [ *493 ] admitted,(t) and although the executor is himself dead. (u) And if the evidence proves a trust, the Court will decree the executor to be a trustee for a legatee, or other party, entitled to the money laid out in the purchase.(v)

In a case where certain stock belonging to a testator was sold out, and the money invested in South Sea stock, Lord Hardwicke, with reference to following the money, stated in the Court of Chancery,-"It has been objected, on the part of the plaintiff, that money has no ear-mark, and therefore upon that account the stock, which has been purchased, cannot be considered as part of the estate of Sir N. This objection has been enforced by saying, that if an executor sells part of a testator's estate, and converts the money into stock, a creditor of the testator shall not be allowed to follow that money into the stock wherein it was so converted, and consider the stock as assets in the hands of the executor, but shall only be allowed to charge the executor with a devastavit; and undoubtedly that is the general rule, not only at law, but in this Court likewise. But there are many cases wherein that rule does not hold in this Court, and the creditor shall be allowed to follow the stock specifically. And if stock belonging to a testator is given by his will subject to a contingency, the Court does not presume that the stock will always remain in the same plight. And if it is converted into other stock, the stock into which it is so converted shall be subject to the same contingency."(w)

(s) Halcott v. Markant, Prec. Ch. 168; Kinder v. Miller, ibid, 171; Kendar v. Milward, S. C., 2 Vern. 440-2 P. W. 414. See Heron v. Heron, Prec. Ch. 163, 2 Eq. Cas. Abr. 744, and Hooper v. Eyles, 2 Vern.

480.

(t) Prec. Ch. 169; 2 Vern. 441; 1 Atk. 59, 60; Amb. 412; 10 Ves, 517; 2 Atk. 71.

(u) Prec. Ch. 169; 2 Vern. 440, 441; 1 Atk. 59.

(v) Anon. Sel. Ca. Ch. 57, 2 Eq. Cas. Abr. 749; Balgney v. Hamilton, Amb. 414; Ryall v. Ryall, 1 Atk. 59, also stated Amb. 413, and cited 10 Ves. 518. See also Willis v. Willis, 2 Atk. 71.

(w) Batten v. Whorewood, Barn. Ch. Rep. 422; Waite v. Whorwood, S. C., 2 Atk. 159.

2 F 2

[ *494 ]

*CHAPTER XXXVIII.

OF THE PERSONAL LIABILITIES OF AN EXECUTOR.

SECT. I. A general View of the Subject of this Chapter.
II. Of an irregular Preference of a Creditor.

III. Of accepting Security in place of Payment of a Debt.
IV. Of an Executor's Promise to pay a Debt.

V. Of an Executor's Liability for Interest.

VI. Of accounting for Profits made of the Testator's Estate.
VII. Of Losses in case of Loan or Investment.

VIII. Of parting with Property to a Co-Executor.

IX. Of an Executor's Liability for Property placed with
Bankers.

X. Of an Executor's continuing the Trade of his Testator. XI. Of an Executor's Liability, where he is obliged to refund Money received, and afterwards paid away by him.

XII. Of Submission to Arbitration.

XIII. Of an Executor's Liability in certain instances of Trusts.
XIV. Of an Executor's concurring in certain Acts.

XV. Of Admission and Evidence of Assets.

XVI. Of paying Legacies before Debts.

XVII. Of instances where an Executor's Liability is not incur

red.

XVIII. Of a Clause of Indemnity in a Will.

SECTION I.

A GENERAL VIEW OF THE SUBJECT OF THIS CHAPTER.

WHEN, by the wrongful act of an executor, assets are lost to a party, as a creditor or legatee, entitled to them, the executor *is, in [ *495] technical language, said to have wasted the assets, or to be guilty of a devastavit. (a) This waste he may be compelled to make good out of his own property; as to either a creditor,(b) or legatee, (c) or to the person entitled to the residue of the testator's personal estate. (d) Among other acts, which, at law, may be a devastavit, or may draw

(a) Doct. & St. Dial. 2, ch. 10, ed. 1709, p. 158; God. Orph. Leg. 2d ed. 203.

(b) Doct. & St. Dial. 2, ch. 10, ed. 1709, p. 158; Bro. Abr. tit. Administrators, pl. 50, tit. Executors, pl. 116.

(c) Adye v. Feuilleteau, 1 Cox, 24. See also Watts v. Kancie, Toth. 77.

(d) Townsend v. Barber, 1 Dick. 356; Lowson v. Copeland, 2 Bro. C. C. 156;

Powell v. Evans, 5 Ves. 839. In Dyose v. Dyose, 1 P. W. 305, it was held, on the particular circumstances of the case, that the residuary legatee should not suffer, by the devastavit there committed, more than in proportion with the other legatees. See Humphreys v. Ilumphreys, 2 Cox, 186, and 1 P. W. 5th ed. 306, n.