
    Ruth and Others v. Owens.
    June, 1824.
    Executors — Claims of Money as Gift from Testator— Evidence. — An executor claims a sum oí money-ad vanced to Mm by Ms testator In his life-time, as a gift, and not a loan; this claim will not he allowed upon the executor’s own oath, and slight circumstances.
    Legacy in Disguise — Bar of Widow’s Rights. — What shall he deemed a legacy in disguise, and therefore not sufficient to bar the widow of her right to one-third of the personal property so given.
    Executors — Decrees against. — where a decree is made against an executor for having paid the assets improperly, he may he subjected in the first instance, without resorting to those who have so improperly received the assets.
    This was an appeal from the Court of Chancery of Williamsburg.
    John Owens died in 1820; leaving real and personal estate, and a widow, (the ap-pellee,) and several children and grandchildren. He also left a will, by which he bequeathed his property to his chil-' dren, grand-children, and *other persons. To David Ruth, his grandson, (the appellant,) he gave a legacy of $1,000, and appointed him an executor with James Hodges; the latter of whom died before the testator, and Ruth qualified as sole executor.
    Elizabeth Owens, the widow, filed her bill against Ruth, and the other children and grand-children, claiming dower in the real estate of John Owens, and her just proportion of the personal estate.
    Ruth answered, that his testator died in debt: that he had paid away, as executor, upwards of $3,000, in discharge of debts due by bond, and in other ways, to different persons: that the testator, before his death, gave, not lent, (as the plaintiff had charged in her bill,) to the respondent, $500, saying,' in substance: “I give you this, as you have had a great deal of trouble in hiring out my negroes, &c.; but, as I may live to become poor, and you rich, you may give me your note for it, payable to me only, and I will call for the payment of it, only in that event:” that the respondent accordingly executed his note, payable five years after date; but the said note was never found among his papers; and the respondent supposes that the said Owens must have destroyed it, as the event had not happened, on which he was to claim the payment of it; and he declared his willingness to render an account of his administration._
    
      The infant defendants answered by their guardian, referring to the answer of Ruth; and was taken as confessed against Sally Hodges, one of the defendants.
    The Chancellor ordered an account of Ruth’s administration.
    The commissioner accordingly made up an account, in which he reported a balance in favor of Ruth. The plaintiff filed exceptions to the report, in the following particulars: 1. Because he had not charged the defendant Ruth for the sum of $500, and interest, lent by the testator to the said Ruth. 2. Because he had given credit to the said Ruth, in his administration account, for the sum of *$2,600, as for so much money retained for himself and Sarah Hodges, Mary Carson, and Sally Burnham, as creditors of his testator, on the notes executed by the testator to them respectively, shortly before his death, <when these sums ought not to have been so credited; the said notes not being debts due by the testator, but being only disguised legacies, and received by the said obligees, as legacies, and not as debts, &c.
    The affidavits of David Ruth, Anne Hayden, Elizabeth Hodges, and others, were taken.
    David Ruth swears, that the bonds or notes executed by John Owens, some short time before his death; one for $100 to him the said David Ruth; one for $1,000 to Sally Hodges; one for $500 to Mary Carson; and one for $100 to Sally Burnham, were all delivered by him the said John Owens to the said persons respectively, immediately after his signing the same; except that the one to Mary Carson was delivered to the affiant for her, (she not being present at the time,) and afterwards delivered by him to her accordingly.
    Anne Hayden swears, that the four bonds, or notes, were executed by John Owens shortly before his death, as mentioned above: that the notes to Ruth, Sally Hodges, and Sally Burnham, were delivered by the said Owens to the respective parties, at the time immediately after they were executed, and two or three days before Owens’ death: that the one to Mary Carson, for $500, was delivered by the said Owens, at the time of the delivery of the above bonds or notes, to the said David Ruth, for the said Mary Carson, she not being personally present.
    Elizabeth Hodges swears, that, two or three days before the death of John Owens, she was called upon to witness a bond or note to David Ruth for $1,000; one other bond or note to Sally Hodges for $1,000; another bond or note to Mary Carson for $500; and another to Sally Burnham for $100 : that the said Owens, immediately after the execution of the said papers, delivered the notes to *Ruth, Burn-ham, and Hodges, to the respective persons to whom they were made payable; and the note to Mary Carson was delivered to Ruth, for her; and Owens remarked that, live or die, he wanted the business done.
    The Chancellor decreed against Ruth for the proportion of the rents and profits of the real estate, to which the widow was entitled, and appointed commissioners to lay off her dower in the real estate, and slaves. And he further decreed, that Ruth ought to have been charged with the sum of $500, lent to him by the testator, and therefore sustained the first exception: that the notes executed by the testator to Ruth, Hodges, Carson, and Burnham, ought to be considered only as means adopted to defeat and elude the claims of the plaintiff: that they did not create a debt absolutely and irrevocably due, and payable by the testator to these persons, being meant to secure the payment of the legacies intended to be left to those very persons by his will, and were, in their nature, testamentary, and revocable. He therefore decreed, that the said plaintiff should recover against the defendant Ruth, $866 66, being one-third part of the said notes, with interest from the 1st day of January, 1822, till payment, &c.
    From this decision, the defendant Ruth obtained an appeal.
    Leigh, for the appellant.
    Wickham, for the appellees.
    June 11.
    
      
      See monographic note on “Executors and. Administrators” appended to Rosser v. Depriest, 5 Graft, fl. The principal case is cited in Lewis v. Mason, 84 Va. 734.
    
    
      
      These several sums were left as legacies, in the will.
    
   JUDGE CARR,

delivered his opinion.

This is a bill filed by the widow of John Owens, against the executor, devisees and legatees, claiming her dower in the real estate, and her portion of the slaves and other personal estate. Answers were filed by the defendants. *The Chancellor appointed commissioners to lay off the widow’s dower in the lands, and her third of the slaves; and, sent the administration account to a master to settle and report. The report was returned with exceptions. The Chancellor considered them, settled the principles of the case, and re-committed the account, for a more special report as to the same points. Prom this order, the appeal is taken. There are two points in dispute; 1st. The sum of $500 charged in the bill to have been a loan from the testator to Ruth the executor. Ruth, in his answer, claims this as a gift; that his grand-father, some time before his death, gave him the money, saying, “I am now rich, you are poor; should our circumstances be reversed, you must return this:” that, with this understanding, he received the money, and executed a note; which, not being among the testator’s papers, he presumes was destroyed, because it was never intended to demand the money. Two witnesses say, that about three years before the testator’s death, while Ruth was in the western country, they frequently heard him say he had given Ruth $500, and if he made a good use of it, would give him $500 more. This is all the evidence on that point. Not a word is said about this money in the will, although it contains devises and bequests to Ruth of much other property; particularly, the sum of $1,000. The will too is made about three years before the testator’s death; probably, near the time of the loan of the $500. It may be, that the testator considered this as part of the legacy, and that the other $500, mentioned by the witnesses, was intended as the residue. This, however, is but conjecture. The commissioner refused to charge this $500 as a part of the testator’s estate to be accounted for by the executor. An exception was taken on this ground, and sustained by the Chancellor.

I felt some doubt at first, whether this was not intended as a gift; but further reflection has satisfied me, that the Chancellor was right. The evidence was too ^slight to establish a gift; especially, as Ruth was present to the testator’s mind in making his will, was the object of his bounty;' and, he would hardly have omitted this $500, if he had intended to add it to his other bequests. It would be dangerous to suffer an executor, under such circumstances, by his own oath, and evidence so slender, to set up a claim to a part of his testator’s estate.

The next point is, with respect to four notes executed by the testator, one to Ruth for $1,000, one to Sarah Hodges for $1,000, one to Mary Carson for $500, and one to Sally Burnham for $100. The executor discharged these notes, and claimed a credit for them as for debts of the testator. The commissioner allowed the credits. This was excepted to, and the exception sustained; because, the notes were legacies in disguise. They were given to the same persons to whom, in his will, the testator had left legacies of the very same amount; and, some of the witnesses proved, that when he executed the notes (about three days before his death,) he declared that it was to secure the legacies. This point, indeed, is too clear for doubt or remark, and was very properly abandoned in the argument.

But it was contended, that in allotting to the widow her share of these sums, the Chancellor ought not, in the first instance, to have decreed against the executor; but (having all the parties before the Court) ought to have decreed against the payees of' the notes, the widow’s proportion of the money, which each of them had received. It was said, that this would prevent multiplicity of actions, would put the saddle on the right horse; and that this was the course adopted and settled by the Court, in the late case of Chamberlayne v. Temple. Stare decisis is a safe and sound maxim, ajid I should be among the last to counsel a departure from it. I have, therefore, examined the case of Cham-berlayne v. Temple, determined, if I found it governing the present, to submit at once my private judgment to the rule settled by the Court. But I have found *it a case so materially differing from this, as well to warrant a different course of decision. There, Temple, a creditor, sued the administrator of Chamber-layne, and recovered judgment. Finding no assets to satisfy hi-s debt, he filed a bill against the administrator de bonis non of Chamberlayne, and some of his children, to whom he had by several deeds, conveyed sundry slaves; alledging, that these conveyances were voluntary and fraudulent as to creditors of the donor; and praying, that the slaves might be subjected to the payment of his demand. Here we see, that the sole end of the bill was, a decree against the slaves in the hands of the donees. The personal representative of Chamber-layne was brought before the Court, not for a decree; but merely because, as the creditor assailed the conveyances on the ground of a defect of assets in the donor, it was proper that the personal representative should be in Court. The Chancellor’s decree was general, that the deeds were fraudulent and void, and that the property be surrendered, to be sold for the satisfaction of the judgment. In the argument of the case here, it was objected that the donees ought not to have had a general decree against, their property; but should have been subjected to a rateable contribution for the satisfaction of the judgment; and the Court did, in that particular, reform the decree, taking care to state, in the most special manner, the reasons applicable to that particular . case, which induced them to do so. I think it will be seen at once, that the case before us is materially .different. The widow calls on the executor for her share of the personal estate of her husband. The executor says, “I have paid away such and such sums, to satisfy creditors. Of this you can have no portion.” The Court decides that these were not debts; and, in relation to the widow, form a part of the personalty. But, says the executor, “although f have paid these monies wrongfully, yet I-have paid them; and the decree ought to be, not against me, but against those who have received the money.” The answer is, “Your wrongful *payment is' no payment at all. You are the personal representative, and liable to the claimant; nor can you, by a misapplication of the funds, shift off that liability.” And this general answer applies with, particular force to the case before us; for it is clear, that there has been no surprise in. this business. 'The executor, when he paid off these notes, knew well that the payment of them as debts would be disputed. The receipts he took, prove this. They state that he paid them in satisfaction of the legacies given by the will; his own being one of them. If he had not chosen to take upon himself the risque of the payment, he might have brought the parties into equity, to litigate the matter. Under these circumstances, I think the decree was properly rendered against him, and ought to be affirmed.

The other Judges concurred, and the decree was accordingly affirmed.  