
    * John Sheple, Executor, versus Isaac Farnsworth, Executor.
    Where a legatee accepts a part of a legacy bequeathed, pursuant to an average or pro rata distribution of the property remaining- in the hands of the executor, he has no further remedy for the part unpaid, until further estate is discovered.
    This was an action of the case by the plaintiff, as executor of the last will of Mary Sawtell, against the defendant, as surviving executor of the last will of Josiah Sawtell, husband of the said Mary, for a legacy bequeathed to thé said Mary, in and by the said last will of her said husband.
    The case came before the Court upon a statement of facts by which it appears that on the 30th of September, 1775, the said-Josiah made his last will and testament, in which, among other things, was the following bequest, viz.: “ I also give to my said wife six hundred sixty-six pounds thirteen shillings and four pence, to be paid by my executors, out of such of my bonds and notes, as she may choose.” And he made the defendant, with James Prescott, and Oliver Prescott, Esquires, both since deceased, his executors ; the last being at the time of the testator’s death judge of probate for this county. All the executors accepted the trust, and'procured ♦he will to be proved before the Supreme Court of Probate.
    After several transactions in the Supreme Court of Probate, such as returning an inventory, settling accounts, obtaining leave to sell land, & c., which are not necessary to be particularly detailed, at the Court holden in April, 1801, upon an adjustment of the accounts of the executors, it appeared that there was a balance in their hands of 896 dollars and 87 cents. And thereupon the Court, after reciting that there was such a balance, and that as it appeared, from the said will, that the money legacies due from the said estate amounted to 3533 dollars 31 cents, the real estate not specifically devised, and certainly known to be his, being already sold and accounted for, it was ordered that the executors should pay to the persons named in the order the several sums affixed to their names respectively, they being all the persons mentioned in the said will who have claims for money legacies ; the payment being in the proportion of 25 cents for every dollar of their respective legacies. This left in [ *633 ] the hands of the executors a balance *of 13 dollars 54 cents only for future charges of administration. The legacy to the testator’s widow was one mentioned in the order of Court, and the average awarded therefor was 555 dollars 55 cents. Af'er her death, and after her will, of which the plaintiff was made executor, was proved, the executors of Josiah Sawtell paid to the plaintiff the average above mentioned, and it was received by him as such.
    Mrs. Sawtell, in her lifetime, was always ready to receive the amount of the legacy in the bonds and notes due to her husband’s estate, and which were sufficient for that purpose; and she requested the executors to expose the bonds and notes in their hands, that she might make her election according to the bequest, which they neglected to do.
    Upon these facts, the cause was argued at the last October term, at considerable length, by Ward for the plaintiff, and Bigelow for the defendant, chiefly on the question whether this legacy was a specific one. Ward contended that it was a specific bequest of bonds and notes to the amount mentioned, and so not subject to reduction as other legacies. Bigelow argued that the testator’s intention was merely to point out the fund out of which this legacy was to be paid ; and he said that, in this country, a bequest of a bond to any one but the obligor himself would be futile; it would give the legatee nothing but the paper and the wax.
    But whether the legacy were or were not specific, Bigelow insisted that the plaintiff, by receiving the average ordered by the Supreme Court of Probate, was barred of any further claim, “ until” in the words of the order of distribution, “further estate is discovered.”
    
      Ward
    
    argued that our statute having given the party entitled to a legacy an action at the common law for its recovery, the Probate Court had no jurisdiction in the case, and the order of distribution among the legatees being merely void, the defendant might recover back the money paid under it, and thus enable himself to pay to the plaintiff the balance of the legacy bequeathed to his testatrix.
   The cause stood continued nisi for advisement, and at the succeeding March term at Boston, the opinion of the Court * (except the Chief Justice, who did not sit in the [*634] cause) was delivered by

Sedgwick, J.

This case presents two points for consideration ; the first depending on the question, Was the legacy given to Mrs. Sawtell specific ? If it was, then the executors, on a request for that purpose, ought to have exposed the notes and bonds of their testator, that Mrs. Sawtell might select from them to the amount of the legacy given to her; and the plaintiff in this case must recover, unless he is concluded by a decision of the second point in the case, that is, by having received the average awarded upon the legacy by the order of Court.

But as to the nature of the legacy, whether it be general or specific, it is unnecessary in this case to determine ; because we are all of opinion on the second point,—that the receipt by the plaintiff" of the average awarded by the order of the Supreme Court of Probate is conclusive against the plaintiff’s right to recover.

This was an order of the Supreme Court, estimating the whole amount of the plaintiff’s demand ; all the circumstances were known to him ; and he acquiesced in the decision which was made. Such an adjustment made of a demand, where there is no imposition or misrepresentation on one side, nor any mistake on the other, it is of importance should be considered as conclusive.

Plaintiff nonsuit.  