question, it seems to be stated, goes to this-whether "where a testator directs a trade to be carried on, and without limitation, all the other purposes of his will are to stand still, or all the administration under it to be so checked, that every person taking is in effect to become a security in proportion to the property he takes, and to the extent of all time, for the trade, which the testator has directed to be carried on. The inconvenience would be intolerable; amounting to this, that every legatee is to hold his legacy upon terms, connected with transactions, by which he cannot benefit, which he cannot control, and which may cut down all his hopes, as far as they are founded upon his receipt of that bounty."(y) And on a case of this nature Lord Eldon expressed his opinion, that "it is impossible to hold that the trade is to be carried on, perhaps for a century; and at the end of that time, the creditors dealing with that trade are, merely because it is directed by the will to be carried on, to pursue the general assets, distributed perhaps to fifty families."(z)

When an executor, directed by the will to carry on the testator's trade, employs in it, out of the assets, a sum of money not applicable for the purpose, and he becomes a bankrupt, the money so employed may be proved as a debt under the commission.(a)

When a testator desires his trade to be carried on by a particular person, to whom he directs his executors to lend a limited sum for the purpose, and upon a particulur trust; and such person after the money lent becomes a bankrupt; the executors may come in and prove for the debt so incurred, but in payment are postponed to all the other creditors of the bankrupt.(b)

OF AN EXECUTOR'S LIABILITY, WHERE HE IS OBLIGED TO REFUND MONEY RECEIVED, AND AFTERWARDS PAID AWAY BY HIM.

IN Pooley v. Ray, a sum of 700l., supposed to be due on mortgage, was, after the death of Sir J. C., the mortgagor, paid to J. R. the executor and brother of C. R. the mortgagee. Afterwards it appeared by a copy of an account under the mortgagee's own hand, that a part of the money had been paid by the mortgagor in his life-time. And on a bill brought to be relieved against this over-payment, the defendant, the executor of the mortgagee, answered and insisted that, before any notice of the plaintiff's demand on account of this over-payment, the defendant, as executor of the mortgagee, had paid away the 7007. in the debts of his testator. Nevertheless, the Master of the Rolls decreed the money overpaid to be paid back by the executor; and he to be at liberty to sue such creditors, as through mistake he had paid, to make them refund. And, on appeal, Lord Cowper affirmed the decree; "declaring, that though this might be a hard case, yet if the plaintiffs had a right to be

(y) 10 Ves. 119.

(z) 10 Ves. 122.

(a) Ex parte Garland, 10 Ves. 110; Ex parte Richardson, 3 Madd. 138, Buck, 202.

(b) Ex parte Garland, 10 Ves. 110, 112, 1 Smith, 220. See Buck, 209.

repaid their money, which they had overpaid on the mortgage, this right could not be overthrown by the defendant the executor's applying the money in any manner he should think fit; any more, than if an executor at law should recover a debt, and pay the testator's debts with it, and afterwards this judgment recovered by the executor is reversed in error; the executor must restore the money to the plaintiff in error; and his having paid it away in debts of his testator will not excuse him from paying it back. So, in the same manner, if there were a decree for the executor to be paid a sum of money by the defendant, and the executor, having received the money, pays it away in debts; and then the defendant, against whom the executor had recovered the decree, brings an appeal, and reverses the decree; the plaintiff in the appeal shall be restored to the money. Secus, if the defendant had *delayed [ *535 ] the appeal, and willingly stood by, whilst the executor paid away this money to the testator's creditors; for this would be drawing the executor into a snare; but nothing of this kind appearing in the present case, affirm the decree." And from the Registrar's book it appears, "His Lordship was of opinion, that although the defendant R.'s payment of 7007. amongst his brother's creditors be an accident, which falls hard upon him, yet it is impossible for the plaintiff to make them parties. And there being an evident mistake in the former account, there ought to be a refunding by the defendant R., of what he has been overpaid, although he hath applied the same in satisfaction of his brother's debts; and the rather, for that it is doubtful whether he did not know how the accounts stood between his brother, the testator, and Sir J. C., before such application made."(c)

SECTION XII.

OF SUBMISSION TO ARBITRATION.

In some cases, an executor may incur personal responsibility to creditors of his testator, by referring matters to arbitration. (d) In Barry v. Rush, which was an action of debt on bond, the plea first craved oyer of the bond (by which the defendant, as administrator, bound himself, his heirs, executors, and administrators, to the plaintiff as executrix,) and then of the condition, which (after reciting that the plaintiff and defendant had agreed to submit to arbitration certain disputes, which had before arisen between the plaintiff and the defendant's intestate, touching certain articles of agreement between the intestate and the plaintiff's testator) was for the performance of an award, to be made by arbitrators concerning the matters aforesaid, and also concerning all other matters, accounts, &c. between the said parties, or either of them. *It then set forth that the arbitrators had awarded, that the de- [ *536 ] fendant, as administrator, should pay to the plaintiff, as executrix, 2987. on the 17th June following, and that the parties should execute general

(c) 1 P. W. 355, and 5th ed. 357, n. (1); cited 2 Ves. jun. 93, 583.

(d) Anon. 3 Leon. 53. Ca. 77.-12 Mod.

11; 11 Vin. Abr. 308, pl. 23; Wentw. Off. Ex. Ch. 13, 14th ed. p. 304.

releases. The defendant then pleaded that he had fully administered and that at the time of entering into the bond, or afterwards he had no assets. And, on demurrer, this plea was held to be bad. The Court was of opinion, the defendant had by the obligation bound himself personally, and gave judgment for the plaintiff; Ashhurst, J., saying,"The entering into the bond amounts to an admission of assets; and the defendant shall not afterwards be permitted to dispute it.

given by the defendant to abide by the award was an undertaking to pay whatever sum the arbitrator should award, without any regard to assets."(e) This case is not an authority, that the mere circumstance of an executor's entering into an arbitration bond amounts to an admission of assets; but was determined on the ground, that there the bond was a personal engagement by the defendant to perform the award, and he submitted, in broad terms, to pay whatever should be awarded. (ƒ) And in Pearson v. Henry, a submission by the defendant, an administrator, to an award was held not to be, in the circumstances of that case, evidence to charge the defendant with assets; a clear decision, that a submission to arbitration by an executor or administrator is not of itself an admission of assets.(g) In Pearson v. Henry, the arbitrator only ascertained the amount of the debt due from the intestate, and did not direct the defendant to pay it; and there was no ground, which made it possible to say, that the arbitrator decided that the defendant had assets.(h) These circumstances distinguish Pearson v. Henry from Worthington v. Barlow, where by the terms of a submission to arbitration by the defendant, an administratrix, the submission was a reference not only of the cause of action, but also of the other question, whether or not [ *537 ] the administratrix had assets. And as the arbitrator awarded the defendant to pay the amount of the plaintiff's demand, it was held to be equivalent to determining, as between these parties, that the administratrix had assets to pay the debt. She was, it was held, concluded by this award; and accordingly, although it was stated she had no assets, she was compelled by attachment to pay the sum, which the arbitrator had directed her to pay. (i) In Robson v. Anonymous, the plaintiffs, who were assignees of a bankrupt, moved that so much of an award as directed the payment by them of a sum of money, and the costs of the reference, might be set aside; upon the ground, that their bankrupt's estate and effects were exhausted. The motion was refused by Lord Eldon, who said, "If an executor or administrator think fit to refer generally all matters in dispute to arbitration, without protesting against the reference being taken as an admission of assets, it will amount to such an admission. I see no distinction in the case of an assignee of a bankrupt."(j) In Riddell v. Sutton, an agreement stated, that disputes and differences had arisen, and were depending, between the plaintiff and the defendant, as executrix, respecting certain unsettled accounts between them; therefore, for the finally settling such disputes and differences, it was agreed that the said matters in dispute should be, and they were

(e) 1 Durn. & E. 691, cited 5 Durn. & 101; and In re Wansborough, 2 Chitt. 40. E. 7, 8.

(f) 5 Durn. & E. 7, 8.

(g) 5 Durn. & E. 6; cited 7 Durn. & E. 453. See Love v. Honeybourne, 4 Dowl. & Ryl. 814, 815; Davies v. Ridge, 3 Espin.

And see, farther, 5 Bing. 206, 208.

(h) 5 Durn. & E. 7; 7 Durn. & E. 453. (i) 7 Durn. & E. 453.

(j) 2 Rose, 50, cited 5 Bing. 206.

thereby, referred to the final award of T. R. and T. B. The arbitrators found that there remained a balance due from the defendant to the plaintiff, and by their award they therefore directed the payment of such balance. To an action of debt on this award, the defendant pleaded plene administravit, and, on demurrer, this plea was held not to be an answer to the plaintiff's demand, and judgment was given for the plaintiff; Park, J., saying,-"Looking at the recital in the submission, and at the whole of the case, I think it clear that the defendant admitted assets, and submitted to a final settlement of all disputes: that could not be but by paying what should be found due."(k)

OF AN EXECUTOR'S LIABILITY IN CERTAIN INSTANCES OF TRUSTS.

NUMEROUS cases occur, in which, by the decision of, or opinion expressed in, a Court of Equity, trustees, or trustees in whom was united the character of executors also, have been held to be responsible out of their own property for a breach of trust, or acts done by them, which occasioned a loss to the beneficial owners of the trust estate; (7) as in the instances of money raised out of an estate limited for the payment of debts and legacies, and converted to the trustee's own use:(m) of a loss occasioned by trustees under a will to their testatrix's estate, through an omission of the trustees to re-invest certain stock immediately, which had been sold, and the produce for some time placed in the hands of their bankers:(n) of money paid to a person under an express power for the purpose, but without the previous consent of a third party, as required by the power:(0) of money laid out in a purchase of real estate, bought by the trustee for himself:(p) of money kept by a trustee in his own hands, contrary to a trust to invest it:(q) of arrears of rent,

which trustees neglected to recover:(?) of a legacy of a debt [ *539 ] due to a testatrix, and which debt, owing by an executor of the will, a co-executor neglected to call in. (s)

(k) 5 Bing. 200, 2 Moore & P. 345. (Tilsly v. Throckmorton, 2 Ch. Cas. 132; Palmer v. Jones, 1 Vern. 144; Jevon v. Bush, ib. 342; Emelie v. Emelie, 7 Bro. P. C. ed. Toml. 259; Anon. 12 Mod. 560; Gifford v. Manley, Cas. T. Talb. 109; Earl of Litchfield's case, 1 Atk. 87, 1 West Cas. T. Hardw. 201; Ivie v. Ivie, 1 Atk. 429, I West. Cas. T. Hardw. 318; Okeden v. Okeden, or Walter, 1 Atk. 550, 1 West Cas. T. Hardw. 514; Vernon v. Vawdrey, Barn. Ch. Rep. 280, 303, 304, 2 Atk. 119; Boardman v. Mosman, 1 Bro. C. C. 68; Cooper v. Douglas, 2 Bro. C. C. 232; Caffrey v. Darby, 6 Ves. 488; Walker v. Symonds, 3 Swanst. 1. Anon. cited 3 Swanst. 79, n.; Ex parte Greenhouse, 1 Madd. 92; Dimes v. Scott, 4 Russ. 195; Carsey v. Barsham, stated 1 Sch. & Lef. 344. See also Smith v. French, 2 Atk. 243; Trafford v. Boehm, 3

Atk. 440, 444; Wilkinson v. Stafford, 1 Ves jun. 32; Vez v. Emery, 5 Ves. 141; Anon. v. Osborne, 6 Ves. 455. See, moreover, Henriques v. Franchise, Prec. Ch. 205; Thayer v. Gould, 1 Atk. 615, cited 2 Atk. 245; and Conyngham v. Conyngham, 1 Ves. 522. And, farther, 2 Atk. 406, 1 Sch. & Lef. 272, and Ashby v. Blackwell, 2 Eden, 299, Amb. 503.

(m) Anon. I Salk. 153.

(n) Bone v. Cook, M'Clel. 168, 173, 316 c.

(0) Bateman v. Davis, 3 Madd. 98. (p) Cox v. Bateman, 2 Ves. 19. See Kirk v. Webb, 2 Freem. 229.

(q) Byrchall v. Bradford, 6 Madd. 13, 235; Brown v. Sansome, M'Clel. & Y. 427. (r) Tebbs v. Carpenter, 1 Madd. 290, 297.

(8) Mucklow v. Fuller, Jacob, 198.

SECTION XIV.

OF AN EXECUTOR'S CONCURRING IN CERTAIN ACTS.

ALL executors appear to be trustees, inasmuch as the duty to execute the will is a trust.(t) Yet they may, perhaps, be called mere executors, when they possess the general personal estate of the testator, upon the general trusts only of an executorship. And they seem to be peculiarly executors in trust, and to be so denominated, when they possess a certain part of the testator's property, upon particular trusts only. (u) By proving the will, an executor has been held to have accepted the trusts annexed to a legacy bequeathed.(v)

Some acts done in a trusteeship, or mere executorship, or executorship in trust, require the concurrence of all the trustees or executors. Acts of this kind are, the signing of a receipt for trust-money, (w) and the transferring of stock or money in the public funds.(x) An executor's or trustee's concurrence in the act of a co-executor or co-trustee often draws to it responsibility. In Hovey v. Blakeman, an executor in trust was held to be responsible for money come to the hands of his co-executor, on the ground that he concurred in the application of that money.(y) *And responsibility may, in certain cases, follow an act, [ *540 ] which is done by a trustee or executor from necessity or for conformity only; but who in the transaction is in some way guilty of a neglect of duty, or breach of trust. (z) This will fully appear in the progress of the present Section; in which it is proposed to consider the

law on concurrence,

1. When the act is the signing of a receipt;

2.-When, by the act concurred in, money comes into the hands of one of several executors or trustees;

3. When this act, by which an executor or trustee obtains possession of money, is the selling out of stock.

1. When trust-money is paid to trustees, or to one only or more of them, it is in many cases necessary that the receipt for it be signed by all the trustees.(a) "At law," says Lord Eldon, "where trustees join in a receipt, primâ facie all are to be considered as having received the money. But it is competent to a trustee, and, if he means to exonerate himself from that interference, it is necessary for him, to shew, that the money, acknowledged to have been received by all, was in fact received by one, and the other joined only for conformity."(b) When, therefore,

(t) Farrington v. Knightly, 1 P. W. 548, 549; Rachfield v. Careless, 2 P. W. 161; Clare v. Almuty, 2 Eq. Cas. Abr. 420; Anon. Com. 151.

(u) Wind v. Jekyl, 1 P. W. 575; Sadler v. Hobbs, 2 Bro. C. C. 114; Scurfield v. Howes, 3 Bro. C. C. 90, and Belt's ed. 95, where the judgment is reported from Lord Colchester's manuscript note; Hovey v. Blakeman, 4 Ves. 596, 607; Chambers v. Minchin, 7 Ves. 197; Byrchall v. Bradford, 6 Madd. 240, 241.

(v) Mucklow v. Fuller, Jacob, 198.

(w) 3 Atk. 584; 3 Swanst. 63. (x) 3 Bro. C. C. 94; 7 Ves. 197; 11 Ves. 253, 254; 16 Ves, 479.

(y) 4 Ves. 596.

(z) Scurfield v. Howes, 3 Bro. C. C. 90; Brice v. Stokes, 11 Ves. 319; Lord Shipbrook v. Lord Hinchinbrook, 11 Ves. 25%, 16 Ves. 477.

(a) 1 P. W. 83; 2 Vern. 516; Amb. 219; 3 Atk. 584; 7 Ves. 198; 3 Swanst. 63; Brice v. Stokes, 11 Ves. 325. (b) 11 Ves. 324.