course. (ƒ) If an executor have acted fraudulently, the court will decree costs against him, (g) although the will direct that his expenses shall be allowed out of the testator's estate. (h) He is also subject to costs in equity as well as at law, if he has misconducted himself by paying simple contract debts in preference to bond-creditors. (i) And where a creditor filed a bill against an executrix, and she stated by her answer that there were no assets for the payment of his debt, but he persisted in the suit, and the result of the account in the Master's office was, that there were no assets, but the executrix was charged with more than she had admitted, the bill was dismissed without costs as against the executrix. (ii) But an executor shall have his costs, although he make a claim, and fail, if it were merely a submission of the point for the opinion of the court. (k) [484] If two executors or administrators join in a receipt, one only of whom receives the money, equity has been stated to adopt this distinction, that in such case, each is liable for the whole (7) as to creditors, who are entitled to the full benefit of law, although one of such personal representatives might have given an effectual discharge; but that with respect to legatees, or parties claiming distribution, as they have no legal remedy, one executor or administrator shall not be charged merely by joining in the receipt, when the other has received the money; for that the addition of his name is only matter of form, the substantial part is the act of receiving, and is alone regarded in conscience. (m) But this distinction between legatees or parties in distribution, and creditors appears to rest on no authority. (») The rule is general, that executors, joining in a receipt, shall all be answerable. (0) It has, indeed, in some instances, been broken in upon, (p) and Sir Richard P. Arden, M. R. denied it to be universally applicable. (q) It seems an exception, if an executor receive the money without the consent of his co-executor, and they afterwards sign the receipt, (r) for by that act they did not enable [485] him to obtain the payment. So if one executor places the property in the hands of the other, who happens to be a banker, or in such a situation that the act is not improvident ; he shall not be charged in case of a loss, for if he had been a sole executor, and had under the same circumstances deposited the money with a banker, he would not have been liable. (s) And where an executor was employed by his coexecutor as his agent to sell an estate, which under the will the co-executor alone had power to sell, and he handed over the price of the estate to his co-executor, he was held not accountable for the misapplication of the money by his co-executor, because he had no legal right to retain it, although by the will, the produce of the estate, when sold, was to be considered as part of the testator's personal estate. (ss) This, however, is clear from all the cases, that, where by any act done by one executor, any part of the estate comes to the hands of his co-executor, the former will be answerable for the latter, in the same manner as he would have been for a stranger, whom he had enabled to receive it. (t) And where executors became bankrupts, interest at (n) Sadler v. Hobbs, 2 Bro. Ch. Rep. 117. 1 P. Wms. 243, in note, 3 Bac. Abr. 31, in note. (0) Fellowes v. Mitchell, 1 P. Wms. 81. Aplyn v. Brewer, Prec. Ch. 173. Leigh v. Barry, 3 Atk. 584. Ex-parte Belchier, Ambl. 219. Sadler v. Hobbs, 2 Bro. Ch. Rep. 116. (p) Churchill v. Hopson, 1 Salk. S. C. 1 P. Wms. 241. 1 P. 318. Wms. 83, note (1). (q) Scurfield v. Howes, 3 Bro. Ch. Rep. 94. (r) 1 P. Wms. 241, note 1, 83, note 1. Read v. Truelove, Ambl. 417. Sadler v. Hobbs, 2 Bro. Ch. Rep. 114. Scurfield v. Howes, 3 Bro. Ch. Rep. 90. Hovey v. Blakeman, 4 Ves. jun. 596. Westley v. Clark, 1 Eden's Rep. 357. (s) Chambers v. Minchin, 7 Ves. jun. 197, 198. (ss) Davis v. Spurling, 1 Russ. & Myl. 64. (t) 1 P. Wms. 241, note 1. 3 Bro. Ch. Rep. 97. Doyle v. Blake, 2 Scho. & Lef. 231. five per cent. was ordered to be proved against their respective estates as well as the principal money. (t) And where executors joined in a transfer of stock to a coexecutor, upon a representation that it was required for debts, and he wasted part of the produce, they were charged with the whole, that they could not prove the application of to that purpose. (u) So where several administrators appointed their co-administrator to be the acting administrator, and directed the creditors to pay their debts to him, and he became insolvent, the other administrators were held responsible for his receipts. (uu) And where a testator authorized his three executors to lend money on personal security, and two of the executors lent it to the third, it was held a breach of trust. (v) Co-trustees are in this respect contradistinguished from co-executors. In the case of co-trustees, as each hath not a power over the whole of the fund, their joining in a receipt is necessary, and, consequently, although they join in such receipt, yet, it is a general rule that the trustee, who receives the money shall be alone chargeable. But in the case of co-executors, each has a power over the fund, and a co-executor joining in a receipt is altogether unnecessary, therefore, if he act without necessity, and join with his coexecutor in such receipt, he shall in general be responsible for the consequences: He assumes a power over the pro[486] perty, and it shall not be afterwards permitted to him to say, that he had no control over it. (x) So, if executors confiding in the representation of their co-executor, that stock standing in the testator's name is wanting for the payment of debts, do join in a transfer of the stock to him, if he misapply the whole or any part of it, they are chargeable with (t) Bick v. Motly, 1 Myl. & Keen, 312. (u) Lord Shipbrook v. Lord Hinchinbrook, 16 Ves. jun. 477. Underwood v. Stevens, 1 Meriv. Rep. (nu) Lees v. Sanderson, 4 Sim. 28. (v) v. Walker, 5 Russ. 7. (a) Chambers v. Minchin, 7 Ves. jun. 186. Brice v. Stokes, 11 Ves. jun. 323, 324. him to the extent of such misapplication. (y) In like manner, if an executor has been dealing with the assets much beyond that period of time, in which, in the ordinary course, debts would be paid, and he applies to his co-executors to have such fund transferred to him alone, and on inquiring, they satisfy themselves, that there are debts unpaid, and his real purpose were to apply the fund in discharge of such debts, if it afterwards appear, that he had in his hands another fund sufficient for the payment of those debts, and such application of the fund was not necessary, nor was it in fact devoted to the payment of debts, they shall be responsible. They are in such case, subject to the imputation of negligence in being too easy with their coexecutor; too remiss in not inquiring how for so long a time, he had been acting in the administration of the assets. (*) But within a reasonable time, if executors, after the testator's death, join in a transfer of stock to their co-executor, on his representation, that it is requisite for the payment of debts: they are not responsible if they can prove he applied it to that purpose, although he had possessed, if not by their means, other part of the assets which he had wasted. (a) And though it be a settled rule, that if any executor contribute in any way to enable the other to obtain possession of the assets, he shall be answerable for their misapplication; yet the rule does not extend to those cases, in which an executor is merely passive, and does not obstruct the other in receiving the property, for it is not incumbent upon one executor by force to prevent its getting into the hands of his co-executor. (b) So a co-executor, who proved, but never acted, having received a bill by the post on account of the estate, and transmitted it immediately to the acting executor, was held (y) Lord Shipbrook v. Lord Hinchinbrook, 11 Ves. jun. 252. 16 Ves. jun. 478. (2) Lord Shipbrook v. Lord Hin chinbrook, 11 Ves. jun. 254. (b) Langford v.Gascoigne, 11 Ves. jun. 383. not to be responsible for the administration of the property. (c) So if A. interested in the fund act in authorizing B. one executor to part with it to C. his co-executor, and it be wasted, B. shall not be responsible to the extent of A.'s interest: But B. shall be responsible to the other parties, who may be interested in the fund, in case they did not acquiesce in his transferring it to C. (d) Although one executor admit assets, an account shall be decreed against his co-executor, who does not admit them. (e) And where an infant legatee filed a bill for an account against two executors, although one of them in his answer denied having either proved the will, or received any assets, the account was directed against both. (ƒ) If an executor, under the express authority of the will, carry on trade with the testator's general assets, not only such assets, but even his own property will be subject to his bankruptcy. If the trade be beneficial, the profits are applicable to the purposes of the will, and the executor derives no personal benefit from the success of the trade. If the trade prove a losing concern, the executor, on a failure of the assets, will be personally liable to the loss. [487] If an executor, without any authority from the will take upon himself to trade with the assets, the testator's estate will not be liable in case of his bankruptcy; the testator's creditors and legatees will have a right to prove demands for such of the assets as have been wasted by the executor in the trade, in proportion to their respective interests: And with respect to such of the assets as can be specifically distinguished to be part of the testator's estate, they will not pass by the assignment of the commissioners; the executor |