
    JOSEPH D. WILSON v. DAVID FISHER AND GEORGE ROBBINS, EXECUTORS OF THE WILL OF JACOB FISHER, DECEASED.
    1. A note given to a testator in his lifetime by one who was appointed a ooexeeutor of his will, was inventoried by the two executors as a part of the assets of the estate; and, in a joint account settled by the executors in the Orphans’ Court, they charge themselves with cash received on the said note in full. Held, in the absence of any explanation, that both executors were liable to the residuary legatees for the whole balance struck against tbem in the said joint account.
    2. A note given by one of the said executors to a legatee, on account, of his Bliare of the residue, which note was not paid, but which the other executors set up as a payment, was held to be no payment.
    3. One of the executors paid four shares, in full, to four of five residuary legatees, and a part of the fifth share to the other legatee ; and on a bill filed by the latter against the executors for the residue of his share, set up that he had paid out all he had in his hands of the balance found by the said joint account, and that the other executor, who had since become bankrupt, had received enough of the said balance to pay what remained due the complainant. Is this a defence ?
    4. It is not necessary to tender to executors a refunding bond before filing a bill for a legacy. _
    The bill was exhibited July 8th, 1845, by Joseph D. Wilson, against David Fisher and George Robbins, executors of the will of Jacob Fisher, who died February 1st, 1837, to recover from the executors the one-fourth part of the one-fifth part of the residue of the personal estate of the testator after paying debts and legacies; the said residue having been bequeathed by the testator to his five children, in equal parts, and the complainant being one of four children of Margaret, a daughter of the testator, who died sinceothe testator.
    The bill states that the executors, in April, 1842, settled their account of the estate in the Orphans’ Court of Monmouth county, in which they charge themselves with $14,152.57J, and credit themselves with disbursements, $200.51, and admit a balance in their hands of $13,832.06|-, after paying all the debts and specific legacies, to be disposed of agreeably to the will. That the said account was the joint account of the executors, and was sworn to by each of them, and was reported by the surrogate of Monmouth to the Orphans’ Court of the county; and that the said court, in April, 1842, decreed that the same be allowed in all things.
    The defendants answered separately.
    David Fisher, in his answer, admits the'account exhibited and settled by the executors in the Orphans’ Court, as stated in the bill; and says that, by joining with his co-executor in having the account so stated and reported by the surrogate, it was not his intention to make himself chargeable for any more of the assets than had come to his hand, and that he was so advised by his counsel and believed, when he joined in the account ; it being necessary to have their accounts so settled, to ascertain the general balance, to determine the respective shares of the residuary legatees. He says that $11,158.81 of the balance of the said amount was received by him, and that it was fully laid out and disbursed to those entitled to receive it under the will; and that the residue of said balance, viz., $2773.25, was received by Robbins ; and that, of that sum, there is yet in Robbins’ hands, as he believes, some $1200 to be paid out and distributed under the will.
    That'he and Robbins have, at all times, kept separate accounts of the assets which have come to their hands respectively, and taken separate vouchers for their respective disbursements;, and that he has fully paid out and disbursed all that came to his. hands. That, on the 8th April, 1839, he paid, to the complainant $412, in part payment of his legacy, and took his receipt therefor. That the complainant has not, nor has .any person for him, made any demand of him for any balance due the complainant on his legacy, or tendered any refunding bond to him, or made any offer of two sufficient securities, as required by law, before the filing of the bill, or at any other time; and he submits that the bill should be dismissed as against him ; that after the accounts were settled, he paid out tiie balance of the estate in his hands to such of the legatees as demanded the same of him and tendered to him the sureties required by law.
    That Robbins had sufficient assets in his hands to pay the balance of complainant’s legacy, and that he expressly retained it for that purpose; and that when the complainant, in the fall of 1842, called on him, this defendant, to learn something in reference to the estate, he told the complainant he had disbursed all the assets that came to his hands, and that Robbins had the funds to pay the balance due him.
    The answer of Robbins, the other executor, admits that he became possessed of personal estate, to the amount of the two several sums of $2773.25 and $296.12; and says that he paid, out of the same, in the administration of the estate, $1831.68, including his commissions; leaving a balance in his hands, unapplied, and for which he is accountable, of $1237.69. That he is insolvent, and that on the 8th February, 1845, he was declared a bankrupt, and has obtained a certificate of his discharge. He says that in joining in the accounts stated and reported by the surrogate, it was not his intention, nor, as he believes, the intention of his co-executor, to make themselves severally chargeable for more of the assets than had come to their hands severally; and that he was so advised by his counsel and believed, when he joined in the account; stating the object of their joining to have been as stated by Fisher in his answer.
    He says that after Fisher had disbursed what was in his hands, he, Robbins, had $1237.69 in his hands, which was sufficient to pay the balance due the complainant and the balance due the other children of Margaret; and that he took upon Inmself and promised to do it; but that he is unable to do it; that he and his co-executor have at all times kept separate accounts and taken separate vouchers. He denies demand or tender of refunding bond; and says that no decree of distribution has been obtained against him and his co-executor in the said Orphans’ Court, showing what portion of the personal estate came to the hands of him and his co-executor, or what were their respective disbursements.
    Replications were filed and proofs taken.
    P. Vredenburgh, for the complainant.
    
      D. Ryall and P. D. Vroom., for defendants.
    They cited 1 Halst. Rep. 432; Elmer’s Dig. 311, 317; 1 P. Wms. 81; 2 Ves., Jr., 678; 4 Ibid. 596; 4 Johns. Rep. 23; 7 Johns. Ch. Rep. 17; Bac. Ab., title “ Executors and Administrators,” D.
    
   The Chancellor.

Three joint accounts have been stated by the executors and presented to the Orphaus’ Court and allowed ; the first in January, 1839 ; the second in April, 1841 ; and the third in April, 1842. In each the balance found in the hands of the executors is stated thus : “ Balance in hands of accountants, to be disposed of agreeably to will of testator.”

The balance found in their hands ■ by the last account was $13,932.06|.

Robbins was, in February, 1843, decreed to be bankrupt. The answer would seem to say that $1237.69 of the balance of the said joint account of the executors was in the hands of Robbins. Fisher paid in fall four of the five residuary legatees, each entitled .to a fifth of the balance of the said joint account, and more than half of the remaining fifth.

If $1237.69, or any other portion of the balance of the joint account of the executors was in the hands of Robbins, can Fisher, after paying four shares in full, relieve himself from the payment of the other share by paying half of it and showing that he has no more of the balance of the joint accounts in his hands, and that the other executor had received the residue of that balance ?

This is a question which should be well considered before deciding it in the affirmative. It strikes me it would be a dangerous doctrine. But I am not satisfied that any part of the balance found by the joint account in the hands of the executors can, under the pleadings and proofs in the case, be consid. ered to be in the hands of Bobbins, and not in the hands of Fisher. A note of Bobbins to the testator, of about $1500, was included in the inventory. In the second account of the executors, they charge themselves, “ April 8th, 1839, cash received of George Bobbins, on account of his note, $600,” and, “April 6th, 1840, cash received of George Bobbins, in full of his note, $984.50.” I also find that certain debts due the estate, and which are included in the inventory, amounting, in all, at their appraised value, to $1471.46, are not included in the balance struck in the joint account, and that no allowance is prayed for them as bad or doubtful debts. Whether Bobbins had received them, and Fisher was, therefore, unwilling to have them charged in the joint account, does not appear. The charging themselves, in a joint account, with cash received of Bobbins, in full of his note due the estate, no explanation of the charge being made in the case, makes both of the executors chargeable to the legatees for that amount, and, so fár as it constitutes a part of the balance struck in the joint account, Fisher is liable for it.

In view of this, and of the fact that $1471.46 of the assets of the estate is not included in the balance struck against the executors, and may, for aught that appears, be in the hands of Bobbins, both the answers may be true, in the sense in which they have been sworn to, and yet the whole of the balance of the accounts, as stated and allowed, be in the hands of Fisher, charging him with the debt acknowledged in the joint account, to have been received from Bobbins.

Fisher, in his answer, «ays that on the 8th of April, 1839, he paid to the complainant $412, in part payment of his share of the residue of the personal estate, and took his receipt therefor. Two hundred dollars of this $412 consisted of a note which Fisher procured to be given by Bobbins to complainant, and which was never paid; and Fisher at that time had, or must be considered to have bad in hand — he being liable, as before observed, for, or having actually received the amount of Robbins’ note due the estate — the $200 for which, instead of paying it in money to the complainant, he got Bobbins to give his note to the complainant. This note was no payment by either of the defendants to the complainant, and the receipt taken by Fisher from the complainant, for $412, is, therefore, good only for $212.

That no refunding bond was tendered before filing the .bill, is no defence in this court. The court can provide, in the decree, for the giving of a refunding; bond.

I am of opinion that both the executors are liable to the complainant for the balance remaining unpaid to him of his share of the residue of the personal estate of the testator, according to the amount of the said residue as ascertained by the said joint account of the executors.

Decree accordingly.  