
    
      Aylett’s Ex’or v. King &c.
    January, 1841,
    Richmond.
    (Absent Oabbli,, ,T.)
    Executors — Bill by Legatees to Settle Account — Case at Bar. — Bill filed by legatees in 1834, after decease of executor, of his executor, and of all the sureties of both, to resettle account of first executor’s administrations, settled by second executor in 1818 ; one of the plaintiffs haying attained full age in 1821 the other in 1823 -. and bill sustained upon the other circumstances of the case, notwithstanding the lapse oí time, and death of executors and their sureties.
    Same — Liability of Sureties — Order of Liability — Case at Bar. — An executor dies indebted to his testator’s estate, but leaving assets sufficient, to discharge the debt, which are received by his executor, who, instead of making payment to the legatees of the first testator, distributes the assets among' the legatees of his own testator: Held, 1. the surety of the first executor Is responsible for the amount due to the first testator’s legatees ; hut 2. equity will not subject him to the payment thereof, until the legatees of the first executor, who received .the assets of his estate, and the sureties of the second executor, have been brought before the court, and an effort to collect from them the amount due has proved unavailing.
    Thomas King, of the county of King William, died in 1807, having made his last will, by which he devised and bequeathed his estate to his wife and his two children Allen and Ann, and appointed John Lord his executor; who qualified as such in February 1807, and gave bond in the penalty of 12000 dollars, with Philip Aylett as his surety.
    John Lord died in 1814, having never settled the account of his administration of Thomas King’s estáte. He left a will, by which Robinson Lord was appointed executor; who qualified as such, giving a bond wherein George Johnson, Billy Har-grove, and Julius E. Moore were his sureties. In 1818, Robinson Lord settled the account of John Lord’s administration of Thomas King’s estate, before auditors appointed by the county court of *'King William; by which account it appeared that John Lord was at his death indebted to King’s estate, for proceeds and profits of real and personal estate (blended together), the sum of ^278. 14. Previous to the settlement of this account, namely in June 1815, a division of John Lord’s estate among the devisees and legatees named in his will, had been made under an order of King William county court. The property divided comprised slaves to the value of £557.
    Allen King, the son of the testator Thomas King, attained his full age in the year 1821, and Ann, the daughter of the said testator, in the year 1823.
    In February 1834 (Philip Aylett the surety of John Lord as executor of Thomas King, Robinson Lord the executor of the said John Lord, and George Johnson, Billy Har-grove and Julius E. Moore, the sureties of the said Robinson Lord as executor of John Lord, being all dead) Allen King the son, and Ann Neale (now the widow of John Neale) the daughter, of the testator Thomas King, exhibited their bill in the circuit superior court of King William county against Thomas Dabney the sheriff of that county, administrator de bonis non with the will annexed of John Lord, Philip Aylett executor of Philip Aylett deceased, Smith Ellis sheriff of Henrico and administrator of Robinson Lord, William R. Richardson and Elizabeth his wife, administratrix of George Johnson, Jane Hargrove adminis-tratrix of Billy Hargrove, and the said sheriff of King William, administrator of Julius E. Moore; alleging that the estate of Thomas King had been wasted and mismanaged by those who undertook to represent it; surcharging and falsifying, in several particulars, the account of John Lord’s administration, settled in 1818; praying that that account might be resettled in a proper manner; that the account of Robinson Lord’s administration of Thomas King’s estate, the account of his administration of John Lord’s estate, and all other proper accounts, K'might be taken; that any balance appearing to be due from John Lord as executor of Thomas King, or from Robinson Lord as executor of John Lord and Thomas King, and the respective sureties of the said John and Robinson, might be decreed to the plaintiffs; and for general relief.
    The executor of Philip Aylett, the administrators of George Johnson, and the ad-ministratrix of Billy Hargrove, answered the bill. As to the other defendants it was taken pro confesso.
    Aylett’s executor, in his answer, insisted that the property of John Lord which came to the hands of Robinson Lord his executor, ought to have been applied by him in payment of the balance due from his testator’s estate to that of Thomas King; and that as he had misapplied that property by delivering it to John Lord’s legatees, the sureties in his executorial bond were liable for such misapplication. Respondent relied upon the lapse cf time since the plaintiffs attained their full age, as a bar to the opening of the account settled in 1818, of John Lord’s administration of Thomas King’s estate.
    The administratrix of Billy Hargrove, and the administrators of George Johnson, in their respective answers, said, that they had received no assets of their intestates, applicable to the payment of the plaintiffs’ demand: that the sureties of Robinson Lord were not liable for profits of Thomas King’s real estate, received by him, or by his testator John Lord: that if such profits were excluded from the account of John Lord’s administration settled in 1818, the balance appearing to be due the estate of King would be only about ^45. which these respondents believed and charged to have been fully paid: that the estate of John Lord in the hands of his devisees and legatees, and the estate of Robinson Lord in the hands of his heirs and distributees, ought to be subjected to the payment of the plaintiffs’ demand, before the sureties of Robins on Lord could be *made liable; and to that end, respondents prayed that those parties might be made defendants to the suit. They also prayed the full benefit to which they might be entitled from the act of limitations or the lapse of time.
    The court made an order directing its commissioner to state and report accounts of the administration of Thomas King’s estate, by John Lord and Robinson Lord, respectively; of the administration of John Lord’s estate, by Robinson Lord and Thomas Dabney the sheriff and administrator de bonis non, respectively; of the administration of Robinson Lord’s estate by Smith Ellis sheriff of Henrico, his administrator; and of the administration of the estates of Philip Aylett, George Johnson, Billy Hargrove and Julius E. Moore, by their respective representatives, defendants in this suit.
    To the report returned by the commissioner in pursuance of the foregoing order, no exception was filed by any party to the suit. In stating the account of John Lord’s administration of King’s estate, the commissioner charged that executor with vari-oils bonds and articles of personalty which appeared by the inventory, and with some which were clearly proved by the testimony of witnesses, to have come to his hands, but which had not been credited to the estate in the account settled before auditors in 1818: he also charged interest on the annual balances in the hands of the executor, which had not been done in the said settlement. The result was, that (excluding all proceeds and profits of real estate received by the executor) there was due from the executor, on the 1st of November 1814, a balance of 1083 dollars 45 cents, of which 946 dollars 30 cents was principal, bearing interest from that date.
    Upon the account of Robinson Bord’s administration of King’s estate, a balance of 578 dollars 13 cents was reported to be due the estate on the 31st of December 1819. But this balance was wholly composed of the *rents of land received by that representative, and interest thereupon.
    Aylett’s executor having failed to furnish the commissioner with materials for stating any account of his administration, the commissioner reported that fact, together with a copy of an account settled by auditors under an order of the county court of King William, by which it appeared that on the 19th of July 1833, Aylett’s executor was indebted to his testator’s estate in a balance of 5781 dollars 77 cents.
    The commissioner reported also a copy of an account, settled under an order of King William county court, of the administration of George Johnson’s estate by William R. Richardson and wife, shewing a balance due from them to the estate, on the 15th of October 1828, of 34 dollars 59 cents, with interest from that day. Richardson and wife, the commissioner stated, declared that they had no assets of their intestate in their hands, having lawfully administered the whole; but it had been proved to him by satisfactory evidence, that they were then in possession of five or six slaves which formerly belonged to George Johnson, and of which he died possessed.
    An account of Jane Hargrove’s administration of the estate of Billy Hargrove was settled and reported by the commissioner, by which it appeared that on the 31st of December 1831, a balance of 23 dollars 87 cents was due from the administratrix, with interest on 17 dollars 76 cents part thereof from that date.
    As to the administration of the estates of Robinson Bord and Julius E. Moore, and of the estate of John Bord by the administrator de bonis non, the commissioner merely reported the declaration of the administrators respectively, that no assets had ever come to their hands.
    On the 26th of May 1838, “by consent of parties and with the assent of the court,” the plaintiffs’ bill *was dismissed as to the defendants William R. Richardson and wife, and Jane Har-grove.
    The cause came on to be heard the 25th of May 1839; when the court (reciting, that it appeared there' were no assets of John Bord or Robinson Bord, in the hands of either of the defendants their administrators) decreed, that Aylett’s executor pay to the complainants, out of the estate of his testator in his hands to be administered, 1083 dollars 45 cents, with interest on 946 dollars 30 cents from the 1st of November 1814 till paid, and costs of suit.
    Aylett’s executor applied by petition lo a judge of this court for an appeal from the decree; which was allowed.'
    Robinson, for appellant.
    R. T. Daniel, for appellees.
    
      
      The principal case is cited in Lacy v. Stamper, 27 Gratt. 56, 57.
      See monographic note on “Executors and Administrators’’ f.appended to Rosser v. Depriest, 5 Gratt. 6.
    
   ABBEN, J.

It is contended that the demand of the appellees is one of those stale claims not entitled to the countenance of a court of equity; and there is some force in the objection. The appellees have slept upon their rights fora long period after the disability of infancy was removed, and no excuse has been offered for this unreasonable delay. Prior to the act of 1826, no certain and definite period was limited for going into such an account; but in the exercise of a sound discretion arising on the circumstances of each case, the courts have refused to decree an account where the transactions have become obscure and involved; or where the representatives would be subjected to insuperable difficulties or great inconvenience in hunting up testimony; or where, from the loss of vouchers or death of witnesses, any injury was likely to result; or where, from the relation of parties to each other, a presumption of satisfaction fairly arises upon the whole case. • But it seems to me, none of these obstacles to a fair adjustment *of the accounts present themselves in this case. Much the greater part of the demand consisted of a balance ascertained to be in the hands of the executor by the report returned and filed in 1818. It has been increased, by restating the account upon proper principles; by a few items disclosed by the inventory, with which the executor omitted to charge himself; and by some additional charges, sustained by clear testimony. No loss of vouchers or testimony is averred, no difficulties are suggested in the way of a fair settlement, and the account was settled with so much facility that no exception has been taken to it. Under such circumstances, it seems to me that it would be going much farther than the courts have yet done, to hold that the mere lapse of time in this case should operate as a bar.

But if the parties are entitled to be entertained, it remains to enquire against whom they should in the first instance seek relief. After such neglect, they cannot complain if they are still farther delayed by the operation of that rule of equitjq which requires the creditor applying to it for aid, to proceed against the estate of the principal, before resorting to the sureties. The assets of Thomas King’s estate were fully administered by the first executor, John Bord: it does not appear that any of them went into the hands of Robinson Bord, his executor, in kind. John Bord therefore, at his death, was indebted the whole balance found to be in arrear, and his estate should in the first instance be subjected to the claim. The answer of the executor of the surety prays that the dev-isees and legatees of John Bord should be made parties. It was proper that they should have been made parties, not only because they were primarily liable, but because, from their connexion with the executor, they would probably be better acquainted with his dealing's and transactions than the sureties in his official bond. For though I do not consider that the lapse of time in this case, under the circumstances disclosed *by the record, should operate as a bar to the recovery of the appellees, still the great delay which has occurred excites suspicion. The claimants cannot object to the strictest scrutiny, or that every opportunify should be afforded to those most immediately interested in contesting the matter, to prove an actual payment, or to strengthen the presumption of satisfaction. John Lord’s estate was divided and distributed among his devisees and legatees, in 1815; and from the report of the commissioners, it plainly appears that there were assets sufficient to discharge the balance due to King’s estate. This fund should have been applied to the payment of the debt, and they who received it are responsible for the amount to King’s legatees. Robinson Lord the executor of John Lord, committed a devastavit, by permitting the distribution of the personal estate among the legatees, instead of applying it to the discharge of the debt due from his testator to King’s estate. From “the commissioner’s report it seems that no assets of Robinson Lord came to the hands of his administrator. But one of the sureties for him as executor of John Lord is shewn to be solvent. If the debt cannot be made from those who have received John Lord’s estate, the sureties of Robinson Lord should be charged, and the burthen should not be thrown on the appellant until the attempt to procure satisfaction from those first chargeable shall prove unavailing. The case of Dabney’s adm’r & al. v. Smith’s legatees, 5 Leigh 13, was different from the present case. There it appeared very clearly that no assets had come to the hands of the personal representatives of Claiborne the sheriff, or of Dabney the deputy who actually administered Smith’s estate, and no account of the administration of those estates was required. Still the court decreed against their personal representatives, and did not subject the sureties until after an execution was returned no assets. It was contended that the plaintiffs *should have proceeded to have the accounts of the administrators of Claiborne and Dabney settled, in order to a decree against them personally if a devastavit should be established. Judge Tucker, in his opinion, with which the other judges concurred, remarks, “This would indeed be to impose too Onerous terms on the creditor. He ought not to be delayed in his recovery until he has pursued the personal representatives of the principal to the utmost limit ot litigation.” In that case, it nowhere anpears that the personal representatives of Claiborne or Dabney, or their sureties, could be presumed, from their connexion with the parties, to have any particular knowledge of the transactions in relation to Smith’s estate. No assets were shewn to have come to the hands of the administrators, and it would therefore have subjected the creditor to an unnecessary delay, to send him upon a pursuit which in all probability would have been unavailing. But in this case, the persons holding the estate of John Lord are his immediate legatees, most probably acquainted with all his transactions, and therefore the best qualified to litigate this claim; and it appears that they had received enough of the estate of John Lord to satisfy the debt. I think, therefore, the court erred in decreeing against the appellant, before the parties in possession of John Lord’s estate, and the sureties of Robinson Lord as executor, had been brought before the court, and an effort made to collect from them any balance which the appellees should shew themselves to be entitled to; and that for this cause the decree must be reversed, and the cause remanded, with leave to make the legatees of John Lord, and the sureties of his executor, parties defendants.

TUCKER, P.

It was said (and, I think, truly) in the case of Dabney’s adm’r & al. v. Smith’s legatees, 5 Leigh 18, that where a creditor, instead of proceeding at law *against the sureties in the executor’s bond, institutes his suit in equity against them and their principal, he is bound to submit to the rule of equity, which will first decree against the principal, and subject the sureties only in the event of that decree being unavailing. It is natural justice that the debt should be paid out of the estate of the debtor; and in equity the creditor ought to resort to it in the first instance, where that resort will be attended by no material injury or delay. It would seem to follow, that where the principal is dead, and his estate is in the hands of his personal representative, it ought to be pursued, and he and his sureties ought to be first charged, unless there are circumstances in the case which would render the pursuit unreasonably onerous to the creditor. In the case of Dabney’s adm’r & al. v. Smith’s legatees, the decree rendered against the sureties was affirmed, because it appeared that Claiborne the committee administrator was insolvent at the time of his death, as also was Dabney his deputy, who in fact conducted the administration. It was contended that Claiborne had some land in Ohio, and that the plaintiffs should first resort to that land. This court thought otherwise, for reasons assigned by them. It may be added to those reasons, that there can be no obligation on the creditor to pursue the heirs, instead of the sureties who have guarantied the due administration of that fund which he has a right to resort to for payment. As to the sureties of Dabney, though they certainly were ultimately responsible, yet it would have been going far to say that the creditor should be bound to look to them, with whom he had no privity, instead of charging the surety of the administrator himself. Dabney indeed was substituted by Claiborne to the administration; but the creditor had nothing to do with that substitution ; and though it is true that the deputy and his sureties would have been responsible, if the creditor found it necessary to pursue' them, yet *it could not be reasonable to require him to do so, instead of taking his decree against the solvent sureties of the administrator himself. I think therefore, upon a review of the case, that it was properly decided.

How is this case? First, is the surety of John Lord responsible at all? Secondly, if he be, should he be charged in the first instance? I answer the first question in the affirmative, and the second in the negative.

That the surety of John Lord is responsible, admits, in my mind, of no doubt. Lord died indebted to King’s estate to a considerable amount. He had, it is true, been guilty of no wrong in not paying over that amount to the legatees, because their tender years forbade it. But when his executor failed and refused to pay the debt, the condition of the bond was violated, and by one who, by his appointment, represented both himself and his testator. For this breach the surety of John Lord is responsible.

But, secondly, he ought not to be held responsible in the first instance. Robinson Lord, the executor of John, received assets amply sufficient to discharge the debt to King’s estate. The assets thus received should be first applied to the payment of that debt; they being estate of the principal obligor, which ought to be charged in preference to the surety. Had Robinson Lord been living and solvent, this would have been obvious. But he died insolvent, after having wasted the estate, partly by distributing it to the legatees of John Lord. The sureties of Robinson Lord are responsible for this devastavit, and they should have been charged before the surety of John Lord; for the wrong done has been the wrong of their principal, and not of Aylett’s principal. I think, therefore, that the plaintiffs in this case, instead of dismissing their bill against them, should have pursued them; and the rather, as, after their long delay in prosecuting their suit, they have little reason to complain of those difficulties which time may have thrown in their way.

*1 am moreover of opinion that if upon settling the account of Robinson Lord as executor of John Lord, Ihere should appear to be in the hands of the executor, over and above the amount distributed by him, assets sufficient to discharge the plaintiffs’ demand, a decree for the amount of that demand should be rendered against Robinson Lord’s sureties, who should be again made parties in the cause: if otherwise, then the plaintiffs should proceed against John Lord’s distributees for satisfaction ; on failure whereof, and not till then, they will be entitled to a decree against the surety of John Lord.

The decree of the court of appeals was as follows:

!:The court is of opinion that the decree of the circuit court is erroneous, in decreeing against the appellant before the parties in possession of John Lord’s estate, and the sureties of Robinson Lord as executor, had been brought before the court, and an effort made to collect from them any balance which the appellees should shew themselves to be entitled to. Therefore” decree reversed with costs, and cause remanded to circuit court, “with directions to make the legatees, and sureties of the executor, of the said John Lord parties defendants, and to be further proceeded in pursuant to the principles of the foregoing opinion and decree. ’ ’  