
    *Sampson v. Payne’s Executor and Legatees.
    Decided October 19th, 1816.
    a. Judgment against Executor — Remedies of Judgment Creditor, — A Creditor, having obtained a Judgment against an Executor as such, and sued out a ft. fa. de bonis testatoris, which proved ineffectual, may either resort to his action at law to establish a devastavit, or file a bill in Equity against the Executor and legatees, for an account of assets, and proportional contribution to pay the debt.
    See Burnley v. Lambert, 1 Wash. 312.
    2. Same — Same — Chancery Practice. — In. such case, if there be a dispute between the Executor and legatees, whether, under the circumstances, he ought not to pay the debt without any contribution from them, and if some of them be not made parties, the Court may with propriety dismiss the Bill as to the Legatee; — but, if it appear that the Executor has delivered over to them property of the testator, which would have been sufficient, to pay the debt, he ought to be decreed to pay it de bonis propriis, and left to his remedy against them.
    The Appellant filed his Bill in the late High Court of Chancery against William Harrison, acting Executor and legatee of Josias Payne deceased, William Payne, Robert Payne, and Archibald Bryce, executor of William Mitchell deceased, who were also legatees of the same Josias Payne, for the purpose of getting satisfaction of his judgment at law, mentioned ante, (in the case last reported,) out of the assets in the hands of the said William Harrison, of which he prayed an Account to be rendered, or by contribution of the legatees; from whom an account of the property received by each was also required.
    The defendant William Harrison, by his answer, admitted, in substance, that the slaves specifically bequeathed by the Testator had been delivered to the legatees by their mutual consent; and that he received from Robert Payne those bequeathed to Anna Harrison his wife; but contended that, as all the legatees were equally bound in the Deed from the Testator to Sampson, they ought to pay their just proportions of the debt, according to what they enjoyed of the estate.
    Archibald Bryce, by his answer insisted that the whole debt ought, according to principles of equity, to be paid by William Harrison himself; because the Covenant, for breach of which the judgment was obtained, was entered into by the Testator altogether for the benefit of the said Harrison, and without any valuable consideration received by the former.
    Robert Payne having departed this life, his Executor Robert Payne answered the Bill, and denied that his Testator had received any slaves, or other property, as legatee or distributee of the estate of Josias Payne deceased; — alleging that all the property held by the said Robert Payne, which once belonged to the said Josias Payne, was given by the latter to the former by a Deed of Gift, and held as the properiy of the donee some considerable time before thfe decease of the donor.
    Char cellor Wythe, on the 10th of March 1803, pronounced his opinion; observing, “that nhe questions controverted among the defendants are whether William Harrison be personally chargeable in equity with the damages and costs, recovered by the plaintiff against that defendant, as Executor *of Josias Payne; and if he te not so chargeable, what proportions thereof ought the other defendants, either all of ¡ them, or all except Robert Payne, (who claimeth indemnity), to contribute?- — ■ Of these questions the Chancellor considered the former ‘idle,’ because a decree against Williani Harrison would not place the plaintiff in a situation better than that which jie before occupied, and yet occu-pieth, jieing at liberty to sue forth an alias fieri facias in execution of the District Court’d judgment, and proceed to convict the Executor for a devastavit; and the other is imp.ertinent and premature, and cannotjbe regularly or definitely decided in a cause between this plaintiff and these defendants ; for to the plaintiff his money, paid b;jf either party, is equally satisfactory ; — the creditors remedy against legatees ought ¡not to be prosecuted before that against the Executor hath failed, or is suggested, through his insolvency, to have failed;|-of which neither is in this case; and two of the legatees, Josias Payne tne younger, and John Payne are not parties, and another of them, William Payne, hath not an’swered the Bill.” The Bill was therefore dismissed with costs, but without prejudice to any suit, which the plaintiff might thereafter institute.
    From which Decree the plaintiff appealed.
    March 26th, 1816, the case was submitted by Nicholas for the Appellant, and Williams for the Appellee.
   Saturday, October 19th, 1816.

JUDGE BROOKE

pronounced the Court’s opinion, as follows:

“The Court, (not adopting the reasons of the Chancellor, nor deciding the question between the Appellees, as to contribution,) approves of the said Decree, except so much thereof as dismisses the Bill as to the Appellee, William Harrison ; as to whom, though an action at law suggesting a devastavit might have been prosecuted against him, yet, as he was brought into the Court of Chancery for the purpose of relieving him from the payment of the whole amount of the judgment at law, by a contribution of the other defendants, and for his benefit, and as it appears, by the Exhibits and proofs in the Record, that he has wasted the estate of his testator by delivering it over to the Rega-tees, the Court is of opinion that a decree ought to have been rendered against him, for the amount of the judgment at law, after deducting the payment made to the Sheriff; and that, on these grounds, the said decree, so far as it dismisses the Bill as to the said William Harrison, is erroneous. Therefore it is decreed and ordered, that so much of the said Decree, as is above mentioned to be erroneous, be reversed and annulled, and that the residue thereof be affirmed: and the cause is remanded to the Superior court of Chancery, to be proceeded in according to the foregoing principles.”  