
    Austin et al. v. Willson’s Executors.
    Executors and Administrators. — An executor can not lawfully appropriate tbe assets of tbe estate of bis testator to the payment of bis individual debts, and bis individual creditor who so receives them, with notice of their character, and of tbe relations of tbe debtor to tbe estate, may be required to repay them to tbe estate.
    Practice in Supreme Court. — Where the evidence tends to sustain tbe finding of tbe Court below, this Court will not reverse tbe judgment for alleged error in overruling a motion for a new trial on tbe ground of insufficient evidence.
    APPEAL from the Floyd Circuit Court.
    In February, 1859, Hiram, Willson died, testate, and his son, Byron F. Willson, and his brother, Asbury C. Willson, soon after became executors of his will. The testator, in his lifetime, was a lumber merchant, and, at his death, was the owner of a large quantity of lumber, then situated, in part, in the city of 'New Albany, Indiana, and in part in the town of Columbia, near the city of Cincinnati, Ohio. Soon after their appointment, his executors sold the entire stock of lumber, to John Austin and Péleg M. Wilcox, and received their notes, with personal security, for the purchase-money. The notes were made payable to the executors in their fiduciary capacity. Within a few days after such sale, Asbury C. Will-son became a partner with Austin and Wilcox in the ownership and sale of said lumber, and immediately removed from the city of New Albany to Columbia, and assumed the chief management of the business of the partnership, and ceased to take any part in the settlement or administration of said estate, but did not resign his executorship. In 1861, suits were instituted upon said notes, in the names of said executors, and judgments recovered in their favor, as such executors, against the makers and their sureties. Prior to May 26, 1862, said Byron caused execution to be issued upon said judgments, and, on the latter day, said Austin and Wilcox procured from said Asbury, at Columbia, where he had ever since continued to reside, the following receipt:
    “Received, May 26,1862, of John Austin and Peleg M. Wilcox, 3,000 dollars, on two certain judgments rendered in the Floyd Circuit Court, at its October term, 1861, in favor of Byron F. Willson and Asbury C. Willson, executors of the last will of Hiram Willson, deceased, and against Austin and Wilcox, and others, one-half of said sum to be credited on each of said judgments.
    “Asbury C. 'Willson, Executor, &c.”
    On May 28, 1862, G. 0- Cannon and H. O. Cannon, two of the sureties on said notes, and defendants in said judgments, paid to the Clerk of said Court the principal and interest then due on said judgments, producing the foregoing receipt as part payment, and procured him to indorse on each of said judgments the following entry:
    “Received of G. C. Cannon and 11. O. Cannon, amount in full of this judgment, interests and costs, of which 1,500 dollars is on a receipt from Asbury C. Willson, executor, &c.
    W. W. Tuley, Clerk.”
    The said Byron, as to said 3,000 dollars, insisted that the same constituted no payment on said judgments, disregarded said entry of satisfaction by the Clerk, and sued out executions to collect said sum. Thereupon the appellants instituted this action to 'enjoin the collection of said sum, and to enforce the entry of satisfaction of said judgments.
    Said Byron, for separate answer and cross-complaint, averred the facts above stated, touching the origin of said judgments, the association of said Asbury with said Austin 
      and Wilcox, his removal from the State, his failure to participate in the settlement of said estate; and he further averred, that the plaintiffs, knowing said facts, and to prevent the collection of said 8,000 dollars, procured the receipt from said Asbury, above set out, and that, on June 14th, 1862, said Asbury was, by the proper Court, removed from the office of executor, and that he had no longer any authority in relation to said estate, and prayed that said receipt, from said Asbury, be canceled, and for general relief. The plaintiffs demurred to the said cross-complaint, and their demurrer was overruled, to which they excepted. There was also a general denial of the complaint. Said Asbury answered the complaint by general denial, and admitted the averments in the cross-complaint. The cause was tried by the Court.
    The testimony on the trial established the facts hereinbefore stated. It also appeared that said Byron had no knowledge of the execution of said receipt, until the same was filed with the Clerk, and never received any part of the sum therein named. Said Asbury testified that he sold said lumber as the partner and agent of said Austin and Wilcox; that he executed said receipt at Gincinnati, at the request of said Wilcox and 6r. C. Gannon; that they paid him no money; that he owed the firm of Austin Co., of which he was a member, something near 3,000 dollars, in part for the purchase-money for his interest in the partnership, and in part for money he had collected on sales of partnership property, and converted to his own use; that he had at the time no money on hand, and so informed them; that he gave said receipt in payment of said indebtedness; that they first suggested that mode of payment; that he told them he was not satisfied he had any right to give such receipt, and they said he had. Said Wilcox testified that said Asbury first proposed to give said receipt; that he, Wilcox, thought it would be right, and that he did not know that said Byron was the sole acting executor; that he did not ask said Asbury if he had any money on hand, but supposed he ought to have some on hand, and that about 3,000 dollars was found to be due from him to the other partners, and that before he, Wilcox, started to Cincinnati, his attorneys gave him a form of receipt from which he there copied the one in question.
    Said G. C. Cannon testified that the receipt was written at Willson’s, in Cincinnati; that he understood the balance due from Asbury to the other partners was upwards of. 3,000 dollars; that he can’t tell who proposed the receipt; that he did not then know said Byron was the sole acting executor; that Wilcox told him, before they went to Cincinnati, that he wanted to get the money from Asbury on such receipt, and that after they got there, money was not mentioned in the interview, but that he may not have heard all that was said.
    Einding and judgment for the defendants. Appeal by the plaintiffs.
    
      George V. Howk and R. M. Weir, for the appellants, argue:
    Co-executors are regarded in law as an individual person; and the acts of any one of them, in respect to the administration of the effects, are deemed to be the acts of all; for they have all a joint and entire authority over the whole property. Hence, a release of a debt, by one of several executors, is valid, and shall bind the rest. 2 Will, on Ex. 810; 8 Blkf. R. 170; 9 Cow. R. 34; 11 Johns. R. 16; 1 Wend. R. 583; 4 Hill R. 492.
    The judgments were recovered by said Byron and Asbury on notes payable to them, and the judgments thus became a debt to them in their personal capacities. Savage v. Meriam, 1 Blackf. 176. They might have sued in their own names, and not in their representative character. Helm v. Van Vleet, 1 Blackf. 342. They have full and absolute power over the judgments, not as executors, but in their individual rights. 6 Blackf. 364.
    
      
      Thomas L. Smith and M. C. Kerr, for the appellees, argue:
    The plaintiffs attempt, in this case, to collect a personal demand due to them from a person who is an executor of an estate, by inducing him, as such executor, to enter satisfaction of a judgment due from them to such estate; in other words, ¡by inducing such executor to appropriate the assets of the •estate to the payment of his individual debts; and they attempt this with full notice of his relations to the estate. Such transactions are utterly inconsistent with good faith, and in violation of established principles of law. Will, on Ex. 5 Am. ed. 841; Talbott, Adm’r, v. Dennis, 1 Ind. 471; Chandler v. Schoonover, 14 Ind. 324.
   Per Curiam.

This case, wej think, clearly falls within the cases of Talbott, Adm’r v. Dennis, 1 Ind. 471. and Chandler, Adm’r v. Schoonover., 14 Ind. 324, if the evidence sustains the finding of the Court.

The rule is, that where the evidence tends to sustain such finding, or the verdict of a jury, the appellate Court will not reverse the judgment of the Court below for alleged error in refusing a new trial. In this case, the evidence is clearly in favor of the finding below. The question of damages will come up before the lower Court, on the dissolution, by that Court, of the injunction it granted herein.

The judgment is affirmed, with costs.  