
    Hugh M’Mullin, Administrator of William M. M’Donald, v. John Brown, and Others.
    After the assent of the executor the title vests in the legatee, and the property is not liable in his hands to executions subsequently obtained against the executor, 
    
    A decree against executors of an executor, is prima facie evidence against the legatee of the first testator on a bill to charge the legacy.
    
    The statute of limitations will not run so as to protect a legatee against his liability for testator’s debts, until after the remedy has been exhausted against the executor. — No cause of action accrued against him until then. [*461]
    A creditor of the testator has the unquestionable right to pursue a legacy in the . hands of a legatee, after assets in executor’s hands have in any way been exhausted. It might be different if he had stood by and saw the executor dissipating the assets without making any effort to save himself. [*462]
    Lands devised under a general residuary clause liable for debts before a specific legacy. [*462]
    Plaintiff decreed to accbunt for hire of negroes while in his possession. [*465]
    The liability of a legatee for testator’s debts extends only to the legacy in specie, he is not liable for hire. [*466]
    If a creditor is guilty of neglect in prosecuting his demand against the executor, the legatee will be protected by the statute of limitations. Ob. Dec. [*467]
    
      Chester, 1835. — The following decree contains a full statement of the case :
    Johnson, J., (sitting as Chancellor.) The object of this bill is to charge certain slaves, Dinah, Fann, Sam, Tuff, Jim, Ransom, Ag'gy and Peggy, now in possession of defendant, Brown, with the payment of about $4000, remaining due on a decree obtained in the Court of Chancery by the plaintiff, against John Dunovant and John Kidd, executors of Middleton M’Donald, jr., who was executor of Middleton M’Donald, sen , to the plaintiff’s intestate, the said Middleton M’Donald, jr., having died insolvent.
    In support of this claim, it is stated in the plaintiff’s bill that the whole of the unadrninistered assets of the said Middleton M’Donald, sen., in the hands of Dunovant and Kidd, had been sold by the sheriff under a fi, fa., founded on the above mentioned decree, leaving the balance above mentioned unsatisfied, and with respect to which the fi. fa. is returned nulla bona; but that Middleton M’Donald died seized and possessed of a considerable real and personal estate, more than sufficient to pay all his just debts, and that his executor, Middleton M’Donald, jr., instead of retaining the same in his hands for that purpose, paid and delivered over to the legatees of his said testator’s will, all such legacies as were therein bequeathed to them, and suffered them to take into their possession such of the real estate as was therein also devised to them, and otherwise disposed of the real and personal estate of his said testator, without paying the debt due to the plaintiff’s intestate; and that amongst other things, he delivered to the defendant, Brown, the negroes above mentioned, in pursuance of a bequest contained iu the said last will and testament of the *4581 said ’’’Middleton M’Donald, sen., to Tirza, the wife of the said J John Brown, and constitutes the only property whereof the said Middleton M’Donald, sen., died possessed, which remains within the jurisdiction of the Court, and can be rendered available to satisfy the plaintiff’s demand. The prayer of the bill, so far as it affects the defendant, Brown, who is the only defendant interested in the present state of the case, is that the negroes in his possession be decreed to be delivered up and sold to satisfy the plaintiff’s demand ; and if that should be insufficient, that he should account for hire during the time he has had them in possession, which is stated in the bill to have been since 1816 or 1817.
    The answer of the defendant, Brown, admits that the negroes above mentioned were specifically bequeathed to his said wife, Tirza, in the said last will and testament of the said Middleton M’Donald, sen., and that the said Middleton M’Donald, jr., the executor, assented to the said legacy, and delivered the said negroes to him about the latter end of the year, 1817, and that he has had possession of them ever since, and that these facts were well known to the plaintiff. He also states, that the said Middleton M’Donald, sen., died seized and possessed of considerable real and personal estate, more than sufficient to pay all his just debts, exclusive of the negroes specifically bequeathed to his wife, which were not subject to pay the plaintiff’s debt, until the whole of his estate not specifically devised, had been exhausted; and amongst other things, divers valuable tracts of land, still remaining unsold and subject to the plaintiff’s demand, in exoneration of the specific legacies, and to which plaintiff ought first to resort. He denies that the plaintiff’s demand is just; and as he has not heretofore been a party to the proceedings, .nor had notice to come in and defend his rights, he insists that plaintiff is bound to make strict proof of his demand.
    The answer further insists that the defendant is protected against this demand by the statute of limitations, and relies on his possession of the negroes since 1811, with the knowledge of plaintiff. In connection with this qnestion, it will be necessary to state more particularly the nature of plaintiff’s demand, and the circumstances attending its prosecution. William M’Donald, who died in 1801, by his will bequeathed to his son, William M. M’Donald, a legacy consisting principally of negroes, and appointed Middleton M’Donald, sen., his executor. William M. M’Donald [*459 died *in 1813; under age and intestate, and administration of his estate was granted to plaintiff. In 1814, plaintiff filed an original bill against Middleton M’Donald, jr., executor of Middleton M’Donald, sen., for an account of the legacy as bequeathed to William M. M’Donald, by his father, William M’Donald, which was continued from time to time, and divers references held until 1816, when it abated by the death of the defendant, and was revived against Dunovant and Kidd, his executors, by bill filed in 1819. This last bill was continued from time to time until 1828, when a final decree was pronounced, and being unable, as before stated, to obtain satisfaction of that decree, the plaintiff filed this bill in 1829.
    Supposing the plaintiff’s claim to be established by competent evidence, and that there is no other property out of which it can be satisfied but the legacy to'Brown’s wife, it will not be denied that the plaintiff has a right to pursue it, unless he has lost it by negligence or lapse of time. Conceding this, the questions raised in the defence are :
    1. Whether the plaintiff, supposing he has a right to pursue the property in defendant’s possession, had not an adequate remedy by levying the execution on, and selling the negroes in the defendant’s possession, under the execution against Dunovant and Kidd, the executors of Middleton M’Donald, jr.
    2 Whether the decree against Dunovant and Kidd, was competent evidence against the defendant, of the demand against Middleton M’Donald, sen.
    3. Whether the plaintiff’s rights against the defendant are not barred by the statute of limitations.
    4. The fact being stated in the bill, that there were sufficient assets to pay all the debts, whether the defendant is bound to refund on account of the devastations of the executor.
    5 Whether in point of fact, there are other assets in the jurisdiction of the Court, chargeable with the payment of this demand, in exoneration of the specific legacy to the plaintiff’s wife.
    The position taken in the defence is very clearly untenable. In theory of law, all the chattels of the testator vest in the executor, and his disposition of them is at law, binding'on both creditors and legatees, whether general or specific, so that the delivery of the legacy to defendant’s wife, and assenting thereto, vested the legal property in the defendant, of which he could not *be divested but by due course of law. There was not, therefore, any property in Dunovant and Kidd, on which the *- execution against it could attach. The right to pursue it in the hands of the defendant is a mere equity, which the Court of Chancery alone has the power of enforcing.
    2. I am of opinion also, that the decree against Dunovant and Kidd was at least prima facie evidence against the defendant, of the correctness and amount of the demand against Middleton M’Donald, sen. Judgments and decrees of Courts of competent jurisdiction directly on the point in controversy, are admissible in evideuce, not only between the parties, but all persons standing in the relation of privies in blood, in estate or in law. And I understand by the term privy, when applied to a judgment or decree, one whose interest has been legally represented at the trial. The heir, for example is privy in blood to the ancestor, and consequently a judgment against the ancestor is evidence against the heir.
    So, if several remaindei’s be limited by the same deed, the remainders are privies in estate to each other, and a verdict for one will be evidence for the rest in remainder ; and privies in law are such as derive their interest through the parties. Starkie’s Ev. pt. 2, p. 192-3-4.
    In the case against Dunovant and Kidd, the point in issue was, whether Middleton M’Donald, sen., was indebted to the plaintiff’s intestate, and how much ; and that is precisely one of the questions here — the right of the plaintiffs to recover here, depends on that indebtedness. The questions are therefore the same. In the former suit, Dunovant and Kidd, as the executors of Middleton M’Donald, jr., who was the executor of Middleton M’Donald, sen., were clothed with all the rights, and represented the interest which had appertained to Middleton M’Donald, sen., and it is from him that the defendant derives his right to the property constituting the legacy bequeathed to his wife, and which is sought to be charged with the payment of this debt. His rights are subordinate to the rights of the plaintiff as a creditor, and were therefore properly and legally represented on the former trial; he is therefore a privy to that decree, and is bound by it. I am not prepared to say, however, that the decree is conclusive. Chancery would relieve unquestionably against the fraud and combination of the creditor and the executor, and possibly against the negligence of the executor, when the rights of the legatee had been *4fn by it; but these questions do not arise out of the
    3. The statute of limitations does not in terms apply to demands that are merely equitable, but the rule which it prescribes is adopted in chancery, in cases that are analogous to those in which it applies at law. Stackhouse v. Barnston, 10 Yes. 466-7; and in analogy to the rule at law, I take it for granted that it will not run until a known cause of action or suit has arisen. The principle of the statute will not apply to those technical and continuing trusts which are alone cognizable in the Court of Chancery, (Kane v. Bloodgood, 7 John. Oh. 90, Yan Rhyn v. Yincent, 1 M’C. Ch. 310,) until the trust is put an end to by the refusal of the trustee to account, or by some other act by which he throws off the character of trustee. (See Stark v. Stark, and Montgomery v. Montgomery, decided in this Court.) But this is not one of those technical continuing trusts, but one of those constructive trusts, implied from the circumstance of the defendant having obtained possession of a fund out of which the plaintiff was entitled to have his demand satisfied, and with respect to which the authorities all agree that the statute will bar a recovery. I have before remarked, however, that the statute could not operate before a cause or suit of action had arisen, and was known to the plaintiff, and the question now is, when did the plaintiff’s cause of suit against the defendant arise, and when was it known to the plaintiff.
    Middleton M’Donald, jr., the executor, and after his death, Dunovant and Kidd, his executors, were previously liable, and the defendant only in the event of plaintiff’s being unable to recover payment from them. Both bill and answer state, that over and above the specific legacy to defendant’s wife, there were abundant assets to pay all the debts of the testator; and one ground of the present defence is, that even now there are sufficient assets to pay this decree, and until the plaintiff had exhausted his remedy against them, he could not certainly know that the assets would prove insufficient: and there is no evidence to show that there was any reasonable ground to suppose that they would be insufficient. It is said that defendant might have been joined in the bill against Middleton M’Donald, jr.', and against Dunovant and Kidd, and the case of Trescot v. Trescot, 1 M’C. Ch. 432, sanctions that mode of proceeding ; but even that ease concedes, that according to the general rule, the proceedings ought to be against the executor *only in the first instance, and that a departure from it is only justifiable when L it is known that the assets remaining in the hands of the executor are insufficient. If, therefore, the plaintiff had joined Brown in either of the former bills, and it had turned out that the other assets were sufficient, as to him, the bill wonld have been dismissed with costs. I think, therefore, that.he was not bound to join the defendant, and having no certain knowledge that the assets would prove insufficient, it cannot be said that a known cause of action or suit had arisen, until the remedy against Dunovant and Kidd was exhausted, and that the defendant is not protected by the statute.
    There is a common sense view of this question, which is, in my judgment, equally conclusive. The claim of the plaintiff, being founded on a valuable consideration is more meritorious than that of defendant, which is merely voluntary. The plaintiff has, for more than twenty years, pursued his claims with unremitting diligence, precisely in the course prescribed by the rules of law, and the practice of 'the Courts. He could not know the necessity, nor had he the power of .restraining the executor in giving an illegal preference to the defendant, in'assenting to and delivering his legacy; and it is unjust and unreasonable that the defendant should be entitled to avail himself of the advantage thus gained.
    4. The cases of executors, G-regory v. Forrester, 1 M’C. Oh. 326, and Trescot v. Trescot, lb. 431, are decisive on the question that the plaintiff has the right to pursue the legacy to defendant’s wife, for the satisfaction of the demand. If, after the legacy had been delivered to the defendant, the plaintiff had stood by and saw the 'executor dissipate the assets of his testator, without making an effort to secure himself, equity would not have relieved; but so far from this, a suit was pending against the executor at the time, and although it afterwards abated by his death, it was revived with all possible despatch.
    5. In the residuary clause of the last will and testament of Middleton M’Donald, sen., he devised to his son, Middleton M’Donald, jr., his exector, all liis lands not before disposed of for life, remainder to his eldest son ; and some evidence was given on the trial that two tracts of land passed under this devise, amounting in value to a sum much greater than the plaintiff’s demand; and unless these lands were disposed of in the due couse of administration, being general and not specific legacies, * . they were unquestionably* liable before the plaintiff could resort -* to the specific legacy to defendant’s wife. The plaintiff’s counsel stated to the Court that he was able to prove that those lands had been disposed of in due course of administration, but was not then prepared to do so. The cause was heard at the last hour of the term, and when, in truth, there was no time for the examination of the matter, and the cause was left open by consent for further evidence on the point. Since that time an execution has been put into my hands at the suit of Canty & M’Hae v. Middleton M’Donald, jr., executor of Middleton M’Donald, sen., from which it appears that a tract of land, containing 1,129 acres had been sold to satisfy that and other executions, but I have no means of ascertaining whether it is any part of the land devised by the residuary bequest; and from the hurry in which the case was tried, the circumstances have not been sufficiently developed to enable me to form a judgment satisfactory to my own mind on this branch of the case, and have therefore concluded to refer it to the Commissioner to collect further evidence on the matter.
    • In 1813, or thereabouts, the plaintiff, under some pretence of right in himself, took possession of the negroes now in controversy, and retained them until 1817, when they were recovered from him in an action at law, by Middleton M’Donald, jr., as the executor of Middleton M’Donald, sen., and the defendant insists, that if anything should be decreed against him, the plaintiff is bound to account for or credit his demand with their hire during the time he had them in his possession — but this cannot prevail. In the action at law, which I understand was detinue, the plaintiff was entitled to recover hire by way of damages for the detention, and I presume did so. At any rate, the judgment is conclusive, and ho is not bound to account again for their hire.
    In the event of the liability of defendant, and the sales of the negroes proving insufficient to pay the balance due on the decree, it is insisted for the plaintiff that defendant is bound to account for the hire of the negroes during the whole time he has had them in his possession ; but this cannot be allowed. The defendant’s possession was legal and rightful, and in retaining possession of them, he withheld no right from the plaintiff and did him no wrong, until the fact of the indebtedness of Middleton M’Donald, sen., which was controverted, was judicially ascertained, and until he had notice that a resort to this fund would be necessary to *4(54.1 satisfy *the demand. The rule is, that when one lies by and -* suffers another to enjoy property or funds as his own, under an apparent bona fide title, which might have been brought into discussion, he will be restricted in his demand for an account to the time of the demand made, or to four years before filing the bill. Howland v. Best, 2 M’O. 320. And the circumstances of this case appear to me to justify the application of the rule to its fullest extent. The plaintiff will therefore only be entitled to an account of hire from the filing of the bill.
    It is therefore ordered and decreed, that it be referred to the Commissioner to ascertain and report whether the testator, Middleton M’D'onald, died seized of any lands and tenements, and if any, their value, and whether they have been sold and disposed of, and in what manner and by whom and on what account.
    To provide also for the event of the defendant’s ultimate liability, it is also ordered that defendant do account before the Commissioner for the hire of the negroes mentioned in the bill, from the time of the filing- of the bill.
    The defendant, John Brown, gave notice that he would move the Court of Appeals to reverse the decree in the above ease, upon the following grounds, to wit:
    1. Because the decree against Dunovant and Kidd was not competent evidence against the defendant Brown, of the demand against Middleton M’Donald, sen.
    2. Because the plaintiff’s rights against the defendant, Brown, were barred by the statute of limitations.
    3. Because the defendant, Brown, was not bound to refund on account of the devastation of the executor, Middleton M’Donald, jr.
    The defendant, Brown, also gives notice, that upon failing to have the decree reversed, he will move to reform the same in the' following particulars :— *
    1. That the plaintiff’s demand should be credited with the hire of the negroes in his possession from 1813 to 1811, as well as the value and hire of one other negro, bequeathed to the wife of the defendant, Brown, in plaintiff’s possession from 1813 up to the present time.
    2. That as the estate of Middleton M’Donald, sen., was more than sufficient to pay all the debts, and as the other devisees and legatees have received their portions thereof, defendant, Brown, *should not be r*.rK charged with more than his wife’s share or proportion of said debt. L 4t)
    3. That the defendant, Brown, should not be charged with negro hire.
    
      Blanding, for the appellant,
    argued these grounds at length, and cited Smith v. Grog-gins, 1 State Rep. 52; Chappell v. Brown, 1 Bailey, 530.
    
      Clarke, contra.
    That the decree against Dunovant and Kidd, executors of Middleton M’Donald, jr., was competent evidence, and that legacies in the hands of legatees were assets for the payment of debts after exhausting those in the hands of the executor — cited Executors of Elliot v. Drayton, 3 Eq. Rep. 29; 1 Yernon, 94; Screvin v. Bostick, 2 M’C. Ch. 410; Milligan v. Milligan, 3 Cranch, 28. As to the statute of limitations. — He insisted that there was no cause of action against defendant until the remedy had been exhausted against the executors. That the executor is a trustee as well for the creditors as the legatees, and a legatee takes subject to the paramount equity of creditors — the legatee is also in such case a trustee, and the statute will not run — Kane v. Bloodgood, 1 John. Ch. Rep. 99; Drayton v. Drayton, 1 Eq. Rep. 559; High v. Dunwoodie, 2 Yes. 81; Irby v. M’Orae, 4 Eq. Rep. 422; Saxon v. Barksdale, 4 Eq. Rep. 522; Hovenden v. Annesley, 2 Sch. & Lef. 638; Decouche v. Savetier 3 John. Ch. Rep. 211; .Yan Rhyn v. Yincent, 1 M’C. Ch. 310.
    As to the liability of legacies after devastavit of executor — Lupton v. 
      Lupton, 2 John..Ch. Rep. 614; Anonymous, 1 P. W. 495; Gregory v. Forrester, 1 M’C. Oh. 325.
    
      
      
        а) See Alexander vs. Williams, 1 Hill, 522.
    
    
      
       See Vernon & Co. vs. Yalk & Wife, ante, 257.
    
   Johnson, Chancellor.

The Court instruct me to say, that they concur in the decree of the Circuit Court, except so far as it goes to discharge the plaintiff from his liability for the hire of the negroes while in his possession, from the time of the rendition of the verdict in the action of detinue, at the suit of Middleton M’Donald, jr. against the plaintiff, until they were delivered to the said Middleton M’Donald ; and so far as the decree charges the defendant with the hire of the negroes in his possession from the time of filing the bill. On the first of these points, the Court is of opinion that the plaintiff is bound to account for the hire ^le negroes during the time they remained in his possession after the verdict; and in this opinion I entirely concur, and should have so decided, if the fact that the negroes did remain in his possession, had been brought before me on the Circuit. I do not know now how the fact is, and the counsel differ about it: the truth will be ascertained on a reference. On the second point, the Court have instructed me to say, that the liability of the defendant extends only to the legacy in specie which he has received, and that he is not liable to account for the hire of the negroes, even after the filing of the bill; and in these respects the decree of the Circuit Court must stand corrected and reformed.

On the argument of the cause here, the counsel have, for the purpose of putting a final end to all litigation between the parties, conceded that the defendant is in possession of another negro called Ben, part of the legacy to his wife Tirza, under the will of Middleton M’Donald, sen.; and that the plaintiff is now, and has been for a long time in possession of another negro called Mary, part of the said legacy; and have consented that the rights of the parties in these negroes should be adjusted in this cause, although their names have been accidentally omitted in the pleadings.

The negro, Ben, is certainly subject to the payment of the plaintiff’s demand, on the same principles that the other negroes of the legacy are held to be so ; and the plaintiff is chargeable with the value and hire of the negro, Mary, on the same.principle that he is held liable for the hire of the other slaves.

It is therefore ordered and decreed, that so much of the Circuit Court decree as directs the defendant to account for the hire of the negroes in his possession, be set aside and reversed; and that the plaintiff do account for the hire of the negroes mentioned in the bill, from the time of the rendition of the verdict in the action at law against him at the suit of Middleton M’Donald, jun., executor of Middleton M’Donald, sen., until they were delivered to the said Middleton M’Donald, jun., or to some one else authorized to receive them ; and that he do also account for the value of the negro, Mary, and for her hire during the time he has had her in possession, the amount thereof to be credited to the balance due on his judgment against Dunovant and Kidd, executors of Middleton M’Donald, jun.

*In concurring in the decree of the Circuit Court on the ques-*461] tion arising out of the statute of limitations, the Court desire not to be understood as laying down the rule broadly, that a legatee will in no case be protected by the statute against the claims of the creditors of th e testator; on the contrary, it is thought, that if the creditor is guilty of neglect in the prosecution of his demand against the executor, the legatee would be protected by the principle, if not the letter, of the statute.

Chancellors He Saussure and Harper, and Justices O’Neall, Richardson, Evans, and Butler, concurred.

Chancellor Johnston having been of counsel in the case, gave no opinion.  