
    Rayner, administrator, &c. of Searing and others, against Pearsall and others.
    An assignee of an executor or of the administrator of an executor, cannot be called to an account by the legatees, where there is no fraud or collusion, even though the assets could be traced and identified.
    Where an executor put bonds and notes, due to the testator, into the hands of an attorney to collect,and after the death of the executor, the attorney collected the money and applied it to his own use, and became insolvent: Held, that ihe estate of the executor was not chargeable with the loss, especially after a lapso of more than six years.
    
      September 30th, and November 18th.
    
    Where the administrator of an executor, in his answer to a bill filed by the representatives and legatees of the testator, for an account, &c., sets forth an account, and avers that he had fully administered, &c., and had distributed the surplus, being a trifling sum, the court .refused to order a reference to a Blaster for a further account, especially after a lapse of twelve years.
    
      JOHN SEARING made his will on the 29(h of March, 1795, and appointed William Pearsall, and three other persons his executors. The testator died in October, 1797, and the will was proved by Pearsall, who qualified as executor, the other persons having refused to act. After giving several specific and pecuniary legacies, the testator directed his estate to be divided into four parts, and gave one fourth of the same to the children of Joseph Baldwin, one fourth to Willet Rayner, one fourth to the children of George Van Kkeck, and one fourtli to the children of Elizabeth Hicks. Willet Rayner, the children of George Van Kleeck, deceased, and the children of Elizabeth Hicks, residuary legatees, mentioned in the will, are the plaintiffs in the suit. The bill charged that the executor P. collected part of the debts, and sold part of the personal estate, which amounted to more than the pecuniary legacies, and sold part of the real estate; that the testator left a large real and personal estate, which did, or might, if not for his negligence, have come to the hands of the executor, a schedule of which was annexed. That the executor died intestate, in 1803, leaving a large estate,‘without having paid the legacies, &c., except the bequests to the widow. That Mary Pearsall, the daughter of the executor, administered on his estate, and possessed herself of a large part of the real and persona! estate of the testator, and of his books of account, &c., and afterwards married John Woolley, (defendant,) and died in February, 1816, intestate: that W. possessed himself of the real and personal estate of his wife, and of a great proportion of the estate of S., the testator, and has not administered on his wife’s estate, nor on the estate of her father TV. JP., nor had he or his wife paid the legatees under the will of S'., &c. That in July, 1808, the defendant, Lavinia Pearsall, widow of W. P., deceased, took out letters of administration de bonis non, &c., of the executor of S., and possessed herself of the real and personal estate, or the proceeds thereof, of S., and of his books of account, &c., and also of the personal estate of TV. P., the executor, but had not accounted, or paid to the legatees, their legacies, &c., but had put the estate, books, &c., into the hands of the defendant, Charles Rapelyea, who had married her daughter Catharine, who held the same, without accounting to the plaintiffs or the other legatees of S. That the surviving executors of the testator, S., having renounced, and his widow having also renounced her right to administer,administration, with the will annexed, was granted to the plaintiff, William Rayner, one of the residuary legatees.— That the children of Joseph Baldwin, who are the other residuary legatees, with their father, reside out of the state, and it was unknown whether they were living or dead,' Prayer, that the defendants may account, &c., and be decreed to deliver or pay to the plaintiffs the real and personal estate of the testator S., or the proceeds thereof, remaining unadministered by W. P., &c., and to deliver the books of account, deeds, &c., relating to the estate of S., to the plaintiff Rayner, &c., and for general relief.
    
      Woolley, in his answer, stated, that he delivered up to Lavinia P. all the assets which his wife left, as administratrix of W. P., except one third of the furniture, which Lavinia, as administratrix, delivered to him, and personal property of W. P. to the value of 32 dollars and 71 cents, and that all that property, now in his hands, does not exceed the value of 160 dollars; and he denied that he ever had any other property of W. P., or any part of the estate of S. ■
    
      The defendant, LaviniuP., in her answer, admitted that ffl. P. was the acting executor of S., and sold the real and personal estate of the testator, and collected some of the debts ; that in 1799 he sold a farm and meadow, which was all the real estate, for 3,000 dollars ; that the personal estate, except what was bequeathed, was sold at auction, in October, 1797, and November, 1798, and produced 735 dollars and 98 cents; and that the plaintiff R. purchased to the amount of 118 dollars and 12 cents, which he has not paid. That the schedule referred to in the bill was not correct; and the whole of the property specified did not come to the hand'- of the executor. That the bonds and notes tiiere mentioned, were, in 1799, and 1802, put into the hands of an attorney, JL Skinner, for collection, and no part of them has been received by the executor, or by his administratrix M. P., or by the defendant. That the money due on the bonds and notes was, afterwards, paid to Joseph Winter, an attorney; and the plaintiff as administrator of S,, sued Winter, and recovered a verdict, in 1813, for 2,302 dollars, and 51 cents; and that the plaintiff ought to look to Winter, or the persons who paid him the money, and not the estate of W. P. That a note of W. H. for GOpounds, 7 shillings, and 8 pence, and a note of S.L. for 12 pounds, which could not be collected, are now in the hands of the defendant. Two other notes were assigned to the widow of the testator as part of her legacy. That according to the statement made to the defendant by JL Skinner, the executor, W. P. recovered 50 pounds in 1797, on R. MorrePs bond; and in 1798, 70 pounds for rent. That the defendant knows no more of ihe assets of the testator; and denies all negligence in the executor, who died the 20th of May, 1804, intestate. That neither the executor nor his daughter, after his death, ever took possession of the assets of the testator. That she, as administratrix of W. P., collected some moneys due to him, and paid some debt leaving a balance in her hands of 81 dollars, and 8 cents, besides some furniture, of the value of 140 dollars; that she left furniture to the value of 70 dollars, with W., as the proportion of his wife, the daughter 0f fjv p> That after deducting 25 dollars for her services, the defendant paid the residue of the 81 dollars, and 8 cents, which were all the remaining assets of W. P., to the the defendant who had married the only surviving child, and to whom, also, she delivered the furniture, valued at 140 dollars, half of which had since been returned to her. That, a,s appeared from receipts in her possession, W. P., as executor, had paid 3,265 dollars and 38 cents, of which a schedule was annexed; and had retained 37 dollars and 59 cents, for his own debt, and 214 dollars, 72 cents for moneys expended, as executor, also, 250 dollars for a legacy to him and his brother, and 250 dollars given to him conditionally, the - condition having happened. The defendant denied that the plaintiff had ever demanded an account of the administration of Searing’s estate; and she insisted, that considering the lapse of time since the death of S., W. P. and «Mi P., she was not bound to render any further account.
    
      September 30th.
    
    
      November 11th.
    
    The defendant M. admitted the receipt of 56 dollars, and 8 cents, in money, and the furniture which he received of Lavinia P., in part of the estate of W. P. in right of his wife, the daugther of W. P. ; and he denied all knowledge of the estate of the testator S., and that he ever received any part of it, or of the proceeds, or was ever Requested to give any account respecting it.
    
      T. «£. Emmet, for the plaintiffs.
    
      Wells, and J. Hiker, for the defendants.
   The Chancellor.

There does not appear .to exist even the shadow of a right of action against the defendant Rapelyea, He married, in 1814, a daughter of Pear-' sail, the executor, who had been dead ten years, and he received from his mother-in-law a few dollars in money, and some trifling furniture belonging to the estate of Pear-sail, and of which estate she was only an administratrix of assets unadministered by the former administrator. There is no real pretension of any collusion between him and any person representing the estate or assets of Searing. The complainant Eayner was the personal representative of Searing, when the defendant R. married into the family of Pearsall. The defendant R. did not receive the furniture and cash of Lavinia Pearsall as being part of the estate of Searing. There is no proof of such an allegation, or that he had any reason to suspect any connexion between what he received, and the assets of the estate of Searing. There is no such identity traced, or pretended, in the property he received. The defendant R. was, therefore, brought into court without any reasonable cause. It would be most inconvenient, if not unjust, to pursue assets in this way, through successive hands, or a sequel of transfers, when no fraud or collusion exists, even if the assets could be traced and identified. There must be collusion to make the assignee of an executor, and, more especially, the assignee of an administrator of the executor, liable to the legatees of the testator. This is the principle to be found in the books. (Newland v. Champion, 1 Vesey, 106. Lord Hardwicke, in Simpson v. Vaughan, 2 Atk. 33., and 2 Vesey. 469.

The bill as to the defendant Rapelyea must, therefore, be dismissed, with costs.

We come next to consider the case of Lavinia Pearsall, the administrator de bonis non of Pearsall, the executor of Searing, and the principal question in the case is, how far Pearsall was personally responsible at his death.

Wm. Pearsall had been the acting executor of Searing, from October, 1797, to May, 1804, when he died, and it ig not until May, 1816, or 12 years after his death, that this suit is brought against his personal representative, and who may be considered as a representative in the second degree. Every intendment ought to be made in favour of the executor who has been so long dead, and when his immediate administrator has been dead lor upwards of ten years before the filing of the bill.

A principal mattpr in contest, is respecting certain bonds and notes which Pearsall, the executor, in 1799, put into the hands of Skinner, an attorney, for collection. The attorney says, that suits were brought upon these bonds and notes and he can give no further account of them, except that some time after the death of Pearsall, he delivered most of them over to Winter, another attorney. They were collected, or-the money received by Winter, to the amount of 1,700 dollars, who appropriated it to his own use, and became insolvent. The present plaintiff, Jiayner, has sued Winter for the moneys so collected, and obtained a verdict against him; and he now seeks to charge the estate of Pearsall with that loss, on the ground of negligenbe in Pearsall. But the facts and circumstances of the case do not appear to afford any sufficient reason for charging the estate of Pearsall with the loss of the money 20 recovered and appropriated by the attorney. There was no insolvency of the original debtors. The debts were secure at the death of Pearsall. The debtors were then competent to pay, and they.did, afterwards, pay to the attorney. The loss arises from the. act of the attorney, long after the death of the executor, and the estate of the executor ought not, surely, to be charged for such subsequent defalcations. It is only responsible for plain and strong acts of negligence or misconduct imputable to the executor himself. There does not appear to have been any pressing necessity for the immediate collection of the debts. The executor acted with reasonable and ordinary discretion and care. He left the debts secure, and it was not until six years after his death, that the moneys were received by an attorney, who abused his trust. The plaintiff, Rayner, may clrtrgethe loss more properly to his own negligence, in not faking- out letters of administration upon the estate of Sein ing, until seven years after tire death of Pearsall. He might at any time have compelled the surviving executors of Searing to act, or to renounce.

If the debts collected and wasted by Winter, be put out of the car.e, it is very evident, that Pearsall’s estate has nothing for which it ought justly to be accountable to the plaintiffs, provided the list of payments annexed to the answer of Lavinia Pearsall be correct. She avers, in her answer, that they are all supported by “receipts taken in a book, and on small detached pieces of paper, now remaining in her possession.” This being matter set up in defence,- or by way of avoidance, must be proved; yet, I observe, that in the statement by the plaintiff’s counsel of the balance he claims, this schedule of payments by Pearsall, the executor, is assumed to be correct. If it be so, there is an end to the claim, supposing Pearsall’s estate not to be chargeable with the moneys collected and misapplied by Winter.

The case, at last, resolves itself into this point, whether it be necessary or discreet to subject the defendant Lavinia P. to the trouble and expense of accounting, by proving all those receipts taken by the executor, considering the obscurity and difficulty whicli the lapse of time must have thrown over the transactions. The perplexity and hardship of accounting is greatly increased in the case of an administrator de bonis non of an executor of the assets sought to be recovered. There is very good reason to believe, from an attentive examination of the pleadings and proofs, that no balance could be found due from the estate of Pearsall, even if an account was to be decreed.— And if that should happen to be the case, there is another serious difficulty in the way, Lavinia Pearsall avers, that - she has duly administered the estate of Pearsall, left un». administered by the prior administrator, and that she had distributed the small surplus of assets, after payment of the debts, which surplus would hardly pay the expense of the reference. It was only 81 dollars, exclusive of some furniture distributed among the representatives of Pearsall.

The plaintiff Rayner, who administered upon the estate of Searing in 1811, waited five years, and suffered this distribution of the estate of Pearsall to be made, before he filed his bill, and he now calls upon Lavinia P. to account for the administration of Pearsall, as well as of her own, twelve years after his death.

In Ray v. Bogart, (2 Johns. Cas. 432.) the Court of Errors confirmed a decree of this court, dismissing a bill for an account, by reason of delay and lapse of time, and the death of parties, and the probable loss of papers, though thé real laches in that case was only for eleven years. The case of Sturt v. Mellish, (2 Atk. 610.) is a strong one to show the unwillingness of the court to decree an account, when the transactions have become obscure and entangled by delay and time. There is no certain and definite rule on the subject. Each case must depend upon the exercise of a sound discretion arising out of the circumstances.—■ My conclusion is, that in this case it would be oppressive, and without any beneficial result to either party, to order an account to be taken; I shall, accordingly, dismiss the bill as to the defendant Lavinia P., without costs.

Decree accordingly.  