one trustee receives the money, and it is shewn that a co-trustee received no part of it, but merely for the sake of conformity joined in signing the receipt, this co-trustee does not by such act render himself responsible for the due application of the money by him who received it. (c) And if each trustee receives a part, then, although they join in a receipt for the whole, each is answerable for that part only, which he himself received. (d) When, however, after signing the receipt, it is [ *541 ] the duty of him, who, from necessity or for conformity only, put his name to the receipt of the whole, to see the money received by his co-trustee duly applied, and this duty is neglected, and he knows that the fund is misapplied, in this case the trustee, who received no part of the money, or a share only of it, may be responsible for the money received by his co-trustee.(e)

Where there are several mere executors, and money is paid on account of the testator's estate, any one of the executors is empowered by law to receive it, and can sign a sufficient receipt for it.(ƒ) And if another executor, by whom no part of the money is received, joins in signing the receipt, this concurrence is at law, it is said, an act which alone makes him responsible for the money;(g) on the ground, that such act is an unnecessary one, the receipt of him only, to whom the money is actually paid, being sufficient; (h) the joining in the receipt is taken to be conclusive evidence, that the money came to the hands of all the executors. (?) And the same doctrine appears to have formerly obtained in equity.(j) There, however, the rule is now altered; and the bare act of a mere executor joining in signing a receipt for money, paid to a co-executor, is not in equity enough to make him, who actually received no part of the money, answerable for it. (k)

When of the whole or a part of a testator's property executors are executors in trust; they being not only executors, but of a certain fund, and, for particular purposes, trustees also; then if one of such executors receives money, and a co-executor joins in [*542 ] signing a receipt for it, the latter may, in some instances, become responsible for the due application of the money. A case of this kind seems to be Scurfield v. Howes. Here S. F., being entitled to 5007. secured

(c) Townley v. Chalenor, or Sherborn, Cro. Car. 312, Bridgm. 35, cited 2 Bro. C. C. 117, and 3 Bro. C. C. 94; Heaton v. Marriot, cited Prec. Ch. 173, 1 P. W. 82, and 2 Vern. 504; Churchill v. Hopson, 1 Salk. 318; Attorney General v. Randall, 21 Vin. Abr. 534, 2 Eq. Cas. Abr. 742; Ex parte Belchier, Amb. 218; Westley v. Clarke, 1 Eden, 359; Leigh v. Barry, 3 Atk. 584; Sadler v. Hobbs, 2 Bro. C. C. 117; Chambers v. Minchin, 7 Ves. 198; Brice v. Stokes, 11 Ves. 324. See Spalding v. Shalmer, Vern. 303.

(d) Fellows v. Mitchell, or Owen, 1 P. W. 81, 2 Vern. 504, 515, 2 Freem. 283, 286.

(e) Brice v. Stokes, 11 Ves. 319.

(g) 1 Salk. 318; 1 P. W. 243; Amb. 219; 1 Eden, 148; 2 Bro. C. C. 117. (h) 1 Salk. 318; Amb. 219; 3 Atk. 584; 1 Eden, 360; 11 Ves. 325. (i) 1 Eden, 147; 3 Bro. C. C. 95. (j) Amb. 219; 3 Atk. 584; 2 Bro. C. C. 117; 7 Ves. 198. See Aplyn v. Brewer, Prec. Ch. 173.

(k) Churchill v. Hobson, or Hopson, 1 P. W. 241, 1 Salk. 318, cited 1 Eden, 147, and 2 Bro. C. C. 117; Harden v. Parsons, 1 Eden, 145; Westley v. Clarke, 1 Eden, 357, 1 P. W. 5th ed. 83 n., 1 Dick. 329, 2 Kenyon, part I, p. 541; cited 2 Bro. C. C. 117, 3 Bro. C. C. 94, 4 Ves. 608, 609, and 2 Sch. & Lef. 242; Scurfield v. Howes, 3 Bro. C. C. 94, 95; Walker v. Symonds, 3

(f) 1 Salk. 318; Amb. 219; 1 Atk. 460; Swanst. 64; Joy v. Campbell, 1 Sch. & 2 Ves. 267.

Lef. 341, 3 Bligh P. C. (N. S.) 110, n.;
Doyle v. Blake, 2 Sch. & Lef. 242, 243,

VOL. VIII.-2 I

on mortgage, by will directed her executors to permit S. to take the interest for life; and if the mortgage should be paid off, she directed the money to be laid out in government securities, upon certain trusts; and appointed B. and H. executors. After the testatrix's death, the mortgage was paid off, and B. and H. joined in the re-conveyance, and in a receipt for the money; and it appears that H. alone received the money, and that B. did not receive any part of it. H. afterwards became insolvent. Sir R. P. Arden decided, that B. was answerable for the legacy, and decreed it to be paid out of his assets. And this decision he seems to rest on the circumstances,-that the money being paid to one of the executors, and the other joining in the receipt, both neglected to lay it out; that this neglect charged both, for leaving the fund in the hands that became insolvent, and on personal security, against their trust; and that, beyond the mere purpose of holding assets to pay debts, B. suffered his co-executor to retain the money for years, and to pay interest, when he ought to have laid it out.(7)

2. In Gill v. The Attorney General, this opinion is expressed by the Court of Exchequer;-" In the case of joint executors, none is chargeale for more than comes to his hands severally. But yet in that case, if by agreement amongst themselves one be to receive and intermeddle with such a part of the estate, and another with such a part, each of them will be chargeable for the whole, because the receipts of each are pursuant to the agreement made betwixt both."(m) And on this opinion delivered in Gill v. The Attorney General, Lord Thurlow has, in the Court of Chancery, stated, "The rule as laid down in that case, and adhered to in subsequent ones, remains the same as at law; and there is no authority in this Court to contradict it. For where one executor [*543 ] *takes the money but of his own authority, his companion shall not be charged; but if he puts the money into the hands of his companion, he shews he had it in his power to secure it; and that his cɔmpanion, for some reason, was permitted to obtain the possession of the money." And his Lordship also said, "I take it to be clear, that where, by any act, or any agreement of the one party, money gets into the hands of his companion, whether a co-trustee or co-executor, they shall both be answerable.”(n) In Viner's Abridgment it is said to have been held in Chancery in the case of Serjeant Webb's will, that, "if one trustee directs the payment of the trust-money over to the other, and joins in the deed, he charges and makes himself liable for the default of the other."(o) In Sadler v. Hobbs, W. S. by his will, gave the residue of his personal estate to Reeve and Davies, his executors, in trust for the plaintiff, an infant. At the testator's death, T. and Co. were indebted to him in 7000/. Reeve, the executor, was in partnership with Devonshire, as merchants. Reeve and Davies, as executors of S., drew two bills, or drafts, for 5000/. and 20007. on T. and Co., payable to the house of Devonshire and Reeve; and these drafts were signed by both the executors. T. and Co. paid the 7000l. to Devonshire and Reeve,

(1) 3 Bro. C. C. 90; and ed. Belt, 95, where the judgment is reported from Lord Colchester's manuscript note. (m) Hardr. 314.

(n) 2 Bro. C. C. 116.

& Lef. 341, and Doyle v. Blake, 2 Sch. & Lef. 231; and, farther, Aplyn v. Brewer, Prec. Ch. 173, cited Bro. C. C. 117.

(0) 21 Vin. Abr. 534; 2 Eq. Cas. Abr.

See also 1 Sch. 742, in marg.

who gave credit for it in their books to the estate of W. S. In 1766 Devonshire died; and in 1769 Davies died; and it appeared that Davies had never acted in the execution of S.'s will, (although he had proved it,) except by drawing the two bills on T. and Co. In 1773 Reeve became a bankrupt; the 7000l. having remained in his hands from 1766 to the time of the bankruptcy. On a bill filed, it was ordered that whatever appeared to have come to the hands of Davies should be answered by his executors. And the Master having charged the estate of Davies with one moiety of the 70007., the defendants excepted to the report. Lord Thurlow, however, held Davies to be answerable. And he appears to have so decided for these reasons,-that Davies joined in the act, the signing of the drafts, by virtue of which the money came into the possession of Reeve; and that Davies" suffered. *544 ] the money to be out for a very long time in the hands of a tradesman, and neglected to call it in, notwithstanding the party interested in the fund was an infant."(p) In Brice v. Stokes, a settlement of real estate contained a power to trustees, M. and F., to sell. The trustees sold under the power, but without necessity. It did not appear for what purpose the sale was made, except for the mere purpose of converting real estate into personal. Both trustees joined in a receipt for the purchasemoney; but it was paid to F. only. F. did not invest it pursuant to the trusts of the settlement, and died insolvent. Lord Eldon held M. to be answerable for the loss. And the reasons of this decision appear to be, that the sale was made without necessity; that it was an act, that never could have been done by the mere exercise of the judgment of one of the trustees, enabling him to determine that it was necessary; that there was no necessity, in respect of which the other should join; and that after the receipt of the money by F., it was the duty of M. to take care, that F. did not retain the money beyond the time, during which the transaction required retainer; and that M., distinctly informed of F.'s misapplication of the money, neglected his duty to bring it back into their joint custody, pursuant to the trusts. (g) In Bone v. Cook, trustees under a will were held to be liable to make good the loss, which had been occasioned to the testatrix's estate, by their default, in allowing certain purchase-money of real estate to be received and retained by a co-trustee, who afterwards became a bankrupt.(r)

3. It remains to notice the cases on responsibility occasioned by concurring in a sale of stock, or money in the public funds; which, when standing in the names of persons, who are trustees, or mere executors, or executors in trust, cannot, it has already been mentioned, [ *545 ] be transferred without the concurrence of all the executors or trustees. (s)

In Murrell v. Cox, the plaintiffs, as residuary legatees, brought their bill against the executors, C. and P., for an account. In a schedule to their answer, the executors made themselves jointly debtors for 2001., East India stock. After the answer put in, the executors sold that stock, and divided the money, the one receiving 1067., and the other the like

(p) 2 Bro. C. C. 114, cited 3 Bro. C. C. 94, and 4 Ves. 609.

(g) 11 Ves. 319. See also Bradwell v. Catchpole, 3 Swanst. 78.

(r) M'Clel. 168, 316 c.; 13 Price, 332 (8) 3 Bro. C. C. 94; 7 Ves. 197; 11 Ves. 253, 254; 16 Ves. 479.

sum. C., after this, became insolvent; and P. insisted he ought to be charged only with 1067., which was all he received. But it was decided, that P. was liable to pay the whole.(t)

In Ex parte Shakeshaft, K. and S., executors in trust, joined in selling out stock, and K. permitted S. to take it to his own use, upon giving an undertaking in writing to replace it upon demand. S. died insolvent, and K. became a bankrupt. And the parties beneficially interested in the trust-money were allowed to prove their debt under K.'s commission. (u) In Chambers v. Minchin, M. and G. were executors, and the will expressly made them trustees also. G. was induced by M. to execute a power of attorney, enabling the latter to sell out certain long annuities, part of the testatrix's estate. M. made the sale, and absconded insolvent. And, under the circumstances, Lord Eldon held G. to be answerable for the loss, so occasioned to the cestui que trust. This decision seems to be made chiefly on the grounds,-that G. was a trustee; that, in the transaction between him and M. relative to the sale, G. did not take common precaution; that he did not endeavour to learn what the purpose of the sale was, or that the power of attorney was to enable M. to execute a purpose connected with the due execution of the trust; and that it could not possibly be said, that G. did more than leave it to M. to do what he pleased with the property.(v) In French v. Hobson, executors in trust joined in a sale of stock, and lent the produce to one of themselves, and his partner in trade, upon their under[ *546 ] taking to replace it. And these partners having failed, all the trustees were charged with the loss. (w) In Lord Shipbrook v. Lord Hinchinbrook, under a decree directing an account of the personal estate of A. M. L., the Master's report charged all the executors with 1200l., 31. per cent. reduced bank annuities, and interest, and one of them separately with 28197. 5s. 10d. received by him. The defendants, three of the executors, took exceptions to the report for charging them with the 12007., and the interest; alleging, in their discharge, that they joined in executing a power of attorney to the fourth executor for the sale of that stock, upon his request, and representation that it was required for the purpose of paying debts; which stock he sold. He was permitted to manage the affairs of the estate; and, at the time of the sale, had in his hands the balance, with which he was charged separately. Lord Eldon held the three executors, who enabled the fourth to sell the stock, to be responsible. And the principal reasons for this decision seem to be, that during two years and a half from the death of the testatrix, until the power to sell the stock was executed, the executor, who sold it, had been acting in the executorship, and, in doing so, trusted by the other executors; that the law supposes, that, in executing the duty of an executor, something is to be done in a year; and that these executors, entrusting their co-executor for two years and a half, ought, when asked to join in a sale of the stock, at least to have made some inquiry, what had been doing in the affairs; but, making no inquiry, were satisfied with the information, which proved groundless, that the applicant wanted the money for the purpose of paying debts; information which ought to

(t) 2 Vern. 570, 1 Eq. Cas. Abr. 247, 248, cited 1 P. W. 83, and 3 Bro. C. C. 94. (u) 3 Bro. C. C. 197.

(v) 7 Ves. 186.
(w) 9 Ves. 103.

have led them to ask, how that could be. Lord Eldon considered the case to be one of executors, who, making no inquiry whatever, permitted their co-executor to do just what he pleased. His Lordship appears, however, to have made this distinction in their favour-to have charged them with the produce of the sale by their co-executor unapplied to the payment of debts, but not to have charged them with so much of such produce, as was so duly *applied by him.(x) The last-mentioned case has, under similar circumstances, been followed [ *547 ] in Underwood v. Stevens. (y) In a recent case, Hanbury v. Kirkland, two trustees in a marriage settlement were decreed to re-invest certain stock, which by a letter of attorney they had empowered a co-trustee to sell out, on his representation that he had an opportunity of investing the property on mortgage; and which co-trustee applied the proceeds of the sale to his own use, and absconded. The decree was made on the grounds, that the co-trustees were guilty of most culpable negligence; omitting their duty to inquire what was the intended security, and who was to be the mortgagor; and, bestowing not a thought upon the subject, without farther inquiry, and without exercising a single act of discretion, executed the power of attorney.(z)

SECTION XV.

OF ADMISSION AND EVIDENCE OF ASSETS.

If an executor admits that he has assets in his hands, this admission is evidence against him, to prove that he either does now possess, or has possessed, assets. (a) And by means of the same admission and evidence, he may become personally liable to the payment of money; as to a creditor, (b) or legatee,(c) of his testator. It is, therefore, a matter of importance to ascertain some of the circumstances, that may have the effect to fix that admission upon him.

An admission, then, of assets may be fixed on an executor, amongst other means, (d)-by a letter written by him to a creditor [ *548 ] *of the testator, and wherein he mentions a sum of money as due on a mortgage to the testator:(e) by an inventory, which he has made of the testator's effects, and exhibited in the Spiritual Court;(ƒ) as when an item in the inventory is, a debt due to the testator, and such debt is construed to be separate, because the executor does not, in the inventory, distinguish it as desperate:(g) by the stamp, which is affixed

1 Salk. 311, 12 Mod. 496, 527; Hinton v. Parker, 8 Mod. 168; Horsley v. Chaloner, 2 Ves. 83, Belt's Supplem. 280, 2d ed. 295; Orr v. Kaines, 2 Ves. 194; Campbell v. Earl of Radnor, 1 Bro. C. C. 271; Ridout v. Bristow, 1 Crompt. & Jerv. 231, 234, 1 Tyrwh. 84.

(e) Robinson v. Bell, 2 Vern. 146. (f) Hickey v. Hayter, 1 Espin. 313, 6 Durn. & E. 384.

(g) Shelley's case, 1 Salk. 296; Young v. Cawdrey, or Cordery, 8 Taunt. 734, 3 J. B.