
    *Hopkirk v. Dennis and Others.
    Tuesday, May 14th, 1811.
    Legatees—Liability to Creditors of Estate—Case at Bar.—if after the qualilication of an executor he die without closing his administration, and the legatees (without the intervention ol an administrator de bonis non) take possession of the assets, a court of equity, on a bill for discovery, will consider snch of them as are solvent responsible to creditors for the whole amount, and will not give them credit for the proportions of snch as prove to be insolvent, yet in decreeing against the solvent legatees, the court will not charge them jointly, but pro rata.
    Upon an appeal from a decree of the superior court of chancery for the Richmond district, pronounced the 6th of May, 1807.
    The bill was filed in the names o' James Hopkirk and others, surviving partners of Alexander Spiers, John Bowman & Co. against John Dennis and others, children of Henry Dennis, deceased, for a discovery of assets, and payment of a debt by bond from the decedent to the company; the plaintiffs alleging that he died, leaving^ a large real and personal estate, subject to the payment of his debts by his last will and testament, whereof he appointed his wife executrix, who proved the same, and afterwards departed this life intestate; since which, no person had taken administration on his estate ; but his children, the defendants, had taken possession of the whole, claiming- it under the will, and refused to satisfy the claim of the plaintiffs.
    Answers were filed by the defendants, John Dennis, Edward Dennis, Owen Haskins, (who married one of the daughters,) Thomas Dennis. Buey- Dennis and Sarah Johnson, the wife of John B. D. Johnson, setting forth (though not distinctly, or particularly, as to items) the proportions in value, or thereabouts, of real and personal estate by them respectively received. ■ From Sarah Johnson’s answer it appeared, that John D. D. Johnson was insolvent, having wasted the property belonging to her, and had left the commonwealth. Nicholas Bourden and Jane his wife, failed to answer, and a decree nisi was entered, but. does not appear to have been served upon them.
    From a copy of the will, it appeared that all the real and personal estate was given to the wife for life, (after payment of the testator’s debts,) and afterwards to be *divided equally among the children, except some unimportant specific legacies. The personal, property was of itself sufficient to satisfy the claim of the plaintiffs.
    The chancellor decreed, “that the defendant John B. D. Johnson, and Sarah his wife, pay to James Hopkirk, the surviving plaintiff, 191. 3s. Sd. and one eighth of the costs, unless the said John B. D. Johnson, on or before the tenth day of the term next after he shall have been served with a copy of this decree, show cause to the contrary ; that the defendant Richard Dennis pay 281. lSs. and one eighth of the said costs, unless he, being in like manner served with a copy of this decree, show cause to the contrary ; that the defendants, Edward and John Dennis, each pay the like sum of money and proportion of costs ; and that the defendants Owen Has-kins and Catharine his wife, Buey Dennis, Thomas Dennis and Nicholas Bourden, and Jane his wife, each pay 191. 3s. Sd. and the same proportion of costs.”
    From this decree the plaintiff Hopkirk appealed.
    Williams, for the appellant.
    If the decree stands, the plaintiff must lose the sum for which John B. D. Johnson, the insolvent legatee, is made responsible.
    Our claim is against the whole estate. The decree ought, therefore, to be joint. One legatee’s having dissipated his share is no reason for the creditor’s losing any part of his claim. If the estate had been distributed among them by an executor, he would have taken their joint bond to refund for payment of debts.  Their dividing the estate among themselves cannot exempt them from this responsibility. Their own act of intermeddling with the estate should not diminish the creditor’s security. Even if the general principle were, that, where the legatees are all solvent, the court will hold "them responsible pro rata, it ought to be otherwise in a case like this. The other legatees ought not to have permitted Johnson to go out of the state without giving security for his proportion. The decree should be, in general terms, that they pay the debt; leaving them to settle their proportions among themselves.
    Judge Roane here called the attention of Mr. Williams to the words of the court in Burnley v. Bambert, 1 Wash. 312, that “all the legatees -must be made parties, that the charge may not fall upon one, but may be equally borne by the whole.”
    Williams. I do not understand by this that the decree must always be pro rata ; but that all the legatees must be parties, in order that, after the recovery against them all collectively, such as pay may have remedy against the rest for contribution.
    No counsel for the appellees.
    
      
       Legatees—Liability to Creditors oí Estate.—Where legatees are called upon to re fund at the suit of a creditor, the general principle is that all the legatees must be before the court if solvent, and the burden apportioned among them, if it can be done without material delay or injury to the creditor. If, however, some of the legatees are insolvent, the others will be required to make good the deficiency, to the extent of what they have received. Leake v. Leake, 75 Va. 810; citlng Mopkirk v. Venwis, 2 Munf. 326; Chamberlayne v. Temple, 2 Rand. 400; Lewis v. Overby, 31 Gratt. 601; Ryan v. McLeod. 32 Gratt. 375. This last case also cites the principal case and discusses the decision therein at pp. 374, 375.
      See generally, monographic note on "Legacies and Devises” appended to Early v. Early, Gilm. 124; monographic note on “Debts of Decedents” appended to Shores v. wares, 1 Rob. 1.
    
   Monday, September 23d. The president pronounced the following as the opinion of the court:

“The court, not deciding whether it was proper in decreeing the several proportions against the sons, in this case, to take into consideration the lands they severally received under the will of the testator, Henry Dennis, nor whether the answers of the several defendants, now appellees, are sufficiently explicit as to the proportions of the said estate they respectively received, (no objection being made by the appellees on either ground,) approves the decree, except as is hereafter mentioned; but the court is further of opinion, that the said decree' is erroneous in having decreed the sum of 191. 3s. 6d. *against Nicholas Bourden and Jane his wife, who have not answered the bill of the appellants, and upon whom the conditional decree had not been served ; and also in this, that the quota of debt and costs assessed on John B. D. Johnson and Sarah his wife, in and by the said'decree, and who appear to be insolvent, is not made payable by the other appellees, in due and ratable proportions ; therefore it is decreed and ordered that the same be reversed and annulled, and that the appellees pay to the appellant his costs by him expended in the prosecution of his appeal aforesaid here : and it is ordered that the cause be remanded to the said court of chancery for further proceedings to be had therein, agreeably to the principles of this decree ; reversing also to the appellant the right to resort to the other appellees for similar contribution for the quota which may be found due by Nicholas Bourden and wife, in the event of their not having received an adequate proportion of the testator’s estáte, or being found insolvent.”  