Pullen v. . Hutchins

Pearson, C. I. It is a maxim of the common law, “ A man must be just, before he is generous.” In affirmance ot this principle, the stat. 13 Eliz. declares all gifts void, as against creditors. There is no qualification or exception, and a donee could not retain the property as long as a single debt of his donor, existing at a time of the gilt, was left unpaid. O’Daniel vs. Crawford, 4 Dev., 197. The act 1840, Rev. Code, ch. 50, sec. 3, makes a qualification in cases where the donor, at the time of the gift “ retained property, fully sufficient and available for the satisfaction of all of his then creditors.”- This modification of the maxim is confined to gifts inter vivos. In respect to legacies, or gifts by will, there has been no modification of the maxim; on the contrary, the legislation upon the subject tends to enforce a strict adherence to it. The assent of an executor to a legacy, before he has paid all of the debts of his testator, is void as to the creditors; for it is a fraud, an act done in violation of the maxim “ A man must be just before he is generous.” So long as the executor is solvent, no debt can be left unpaid, for he is liable to the creditors de bonis propriis, by reason of the devastavit. If the executor be insolvent, the loss must fall upon the legatee, rather than upon a creditor; on the ground that the assent to the legacy was void, as a fraud upon the creditor, and the legatee cannot, with a good conscience, retain the legacy and leave the debts unpaid ; for he is a volunteer and only claims a bounty for which he has paid nothing, whereas a creditor demands a right. The legatee cannot take benefit by the default of the executor, who is an agent acting in the place of the *433 testator, and the maxim bears upon the case with fall force; Barnard vs. Threadgill, 5 Ired, Eq. 86; same case, 3 Jones Eq. 62. In respect to legatees, there is no such modification of the maxim as is made by the act of 1840, in respect to donees, where the donor retains property enough to pay all of his debts. So the fact, that at the time the executor assented to the legacy he was solvent, and had in his hands assets fully enough to discharge all of the debts of the testator, cannot be allowed the effect of making valid the assent of the executor, as against creditors, and of relieving the legatee from his liability to refund for the payment of'deb'ts. The legislation, upon the subject, so far from having a tendency to modify the common law maxim, evinces an earnest desire to secure its enforcement. Rev. Code, eh. 46, sec. 24, requires legatees and distributees to give bond, with two or more able securities, “conditioned that if any debt truly owing by the deceased shall be afterwards sued for and recovered, or otherwise duly made to appear, he will refund his ratable part of such debt out of the part or share allotted to him.” It this statute had been complied with, the creditors could, as a matter of course, by action on the bond, have compelled the legatees fco refund. In our case the legatees cannot evade this liability to pay “ a debt truly owed by the deceased,” on the ground that the executor had assented and paid the legacies without requiring a refunding bond ; for the omission to take a refunding bond must he ascribed to collusion* or else to gross negligence on the part of the executor,'of which the legatees cannot take advantage. By doing so, they convict themselves of being partíceles 07'iminis in a fraudulent evasion of the law, and arc checked by the maxim, “No one shall take advantage of hie own wrong.” Every one will admit, at ouce,?the proposition, “ A legatee who has procured the assent of the executor and a payment of the legacy, without giving a refunding bond, can *434 claim no better right to be exempted-, from,- tbe liability to refund, imposed by tbe common law maxim, than a legatee who has, in order to obtain his legacy, strictly complied with the requirements of the law. So much of tbe decree in the Court below, as directs tbe appointment of- a receiver, and the payment to him by J. P. H. Russ of the value of the sum of $3,500 in Confederate notes, received by him of the executor in satisfaction of his legacy, the value to be fixed by the scale of depreciation, is-affirmed, subject to a deduction by reason of the further order-in respect to the legacy of $3,000 to the infant children of said Russ, received by him as guardian, in January 1869. The judgment in the Court below makes no mention of this legacy to the children of Russ. In this there is error. It was said at the bar, that this omission was because of the fact, that this legacy of $3,000 was not in the first instance received by Russ, as guardian of bis children, from Hutchins as executor, in money, but that Russ took his note for the amount of the legacy, which was afterwards made on execution by the sale of the property of Hutchins. We have seen, that had Russ received the legacy from Hutchins in money, the wards would have been liable to refund in payment of debts — how could tbe fact that be took the nóte of Hutchings, which was after-wards collected and passed to the credit of the wards, affect their liability to refund ? We are not able to see bow that could make any difference, unless it be to suggest the- idea, that after Hutchings had used the money, Russ agreed to condone the devastavit and take the note of Hutchings, provided no refunding bond was required. However this may be, the fact that the money was ultimately received and passed to their credit, in account with the guardian, put the wards preciselyin the same predicament as if their guardian had received the legacy of $3,000 for them in money in the first instance, and had executed a refunding bond as required by law. The judgment in the Court below will be modified, by add *435 ing judgment against J. P. H. Russ, that he pay out oí the funds of his wards a ratable part of the legacy received by him, towards ihe satisfaction oí the debts of the plaintiffs. The adjustment oí the ratable balances to be paid by the legacy oí $3,500, received in Confederate notes, and the legacy of $3,000, received in 1869, to be settled by the clerk, and, unless the amounts be paid within one month after the parties- receive a copy of this judgment, execution will issue.. That part of the judgment having reference to the real, estate is reversed, and the case will stand for further directions in the event that, the debts of the plaintiffs be not satisfied. We are not called upon to express an opinion as to the liability of the land, in the hands oí a bona fide purchaser from the devisees,.after the expiration of two years from the probate oí the will, or as to the liability of the devisees personally for the money into which the land has heen converted. A judgment will be entered according to this opinion.. Per Curiam. Judgment accordingly..