
    J. Caldwell’s Executors vs Kinkead et al.
    
    Chancery. Case 73.
    Appeal from the Bath Circuit.
    
      April 28.
    
      Devises. Legacies. Distribution. Practice in Chancery. Interest.
    
    The object of the bill.
   Chief Justice Robertson

delivered the Opinion of the Court.

The appellants, as the executors of Jam.es Caldwell, deceased, urge, on a multitude of grounds, the reversal of sundry distributive decrees rendered against them, in favor of the executors and some of the legatees of William Caldwell, deceased, and of the legatees also of the said testator, James, in a suit in Chancery, in which the said executors and legatees of the testator, William, were complainants, and all the other parties were made defendants.

Of the various errors alleged in a voluminous assignment, we deem it necessary to notice specially the following only:

I. The principle object of the bill was to obtain a decree for restitution of assets which had been delivered by the executors of William Caldwell to Janies Caldwell,' as a residuary legatee, the said executors having after-wards discovered outstanding demands against them ■which they had no other means of satisfying. And the appellants now insist that those unsatisfied creditors should have been parties.

If a- devisee of land, who has a residuary bequest also, be charged with the paymentofdebts, the land is held in trust and subject to the payment of debts.— In such ease, on bill filed by 'executor, to have restitution of assets to pay outstanding debts, creditors claiming such demands may be necessary parties.—

But if legatees-only are responsible, the creditors are not necessaryji parties, they do not hold in trust for the benefit of such creditors.

A decree for distribution andpaymentoflegacies, on the bill of adults,made in favor of infants, (tho’ not prayed for in their answer,) cannot be reversed at the instance of others.

It is a general rule of chancery practice, that Í defendant shall not have a decree against his co-defendant,except on cross bill, but this rule is not universal and does not apply to the case of a hill by one distributee against adm’r and other distributees, or a bill by one legatee against eoleghtees and executor, for dist-nbuting a fiduSterostis derimon^smrce^fusuch a case, admimstratororcxecutor hast a afraeísettiing3* entirebUfimd — so in a suit for setshTp! 3 pMlnei .

Had the devise of land, and the residuary bequest to James Caldwell, been charged by the will of his father, the said William, with the payment of debts, the .unsatisfied creditors might have been necessary parties; because, even though the executors of James might pay the amount of their claims to the executors of William, still, unless the creditors of William should be paid, they might, nevertheless, enforce the trust and compel the representatives of James to pay them.

But there was no such trust, for the payment of William’s debts, the only charge being applicable to legacies merely. The executors of William are undoubtedly entitled to restitution of as much of the assets as will be necessary for paying the debts for which they are liable, and as such a restitution will, to the extent of it, exonerate the executors of James from all liability to the creditors of William, we cannot perceive any solid reason for considering those creditors necessary parties to this suit.

II. Some .of the persons made defendants, and in whose favor decrees were rendered, were infants, and did not answer the bill, and this is assigned as a fatal error. Had those infants complained, the decree as to them should be reversed. But it seems to us that as the decree is not void, and will, as long as it stands, bar any suit for the same matter, the fact that it might be reversed by some of the parties in whose favor it has been rendered, should not, therefore, be deemed prejudicial to the appellants or entitle them to a reversal on that ground.

Nor can we admit, as urged in this case, that it was erroneous to decree distribution of the legatory fund among such of those entitled to it as did not, by their answers, expressly . seek such decrees. It is a general rule of equity practice, that one defendant cannot be entitled to a decree against a co-defendant without asking for it in a cross bill, alleging a sufficient ground for authorizing such relief, because, otherwise, the end of all pleading might be frustrated, by adjudicating between associates and not antagonists, in court, in favor of a party who had not sought or even intimated a wish to obtain any such interference, and as to a matter not only unlitigated, but never presented in- any form for litigation. But this rule, extending only so far as the reasons for it apply, is not nn-iversal. It does not apply to a suit in Chancery by onedistributee against an administrator and co-distributee, or one le£atee against his co-legatees and the executor, for ascertaining and distributing a fiducial fund, in which all' ,. .. . . , the distributees and legatees have a common interest derived from the same source. In such a case, the ad-ministrat°r or executor has a right to require a comprehensive decree, settling and distributing the entire fund among all who may be entitled to it, and the nature of the case and end'of the suit, as in a suit for an account or for settling a partnership, dispense with the necessity of formal interpleading.

One who receives a bequest of land, charged with thepaymentof legacies to his relation, dies giving legacies to those relations, or some of them, equal or greater than those charged on the land, such legacies shall not be taken as a “satisfaction” for the legacies charged on the land, but as a bounty.

It this case the bill sought, among other things, an ex-ecutorial account and a decree- for the legacy of Mrs. Miller, as bequeathed to-her by the will of James Caldwell. Such a decree could not be appropriately rendered' without finally adjusting the interests of all the legatees-under the same will, and the executors- of that will ex-presslv prayed for such a decree in- their answer.

It seems to-us, therefore, that' as all the legatees w’ere-parties, and are, therefore, concluded by the decree, as rendered, the executors cannot now object to the decrees in their favor, merely on the ground that they wmre not formerly prayed for in cross bills or in answers filed by those legatees.

III. As the land devised to James Caldwell was charged with the legacies bequeathed to others by William Caldwell, and as James bequethed to- some of those legatees, legacies larger than those thus charged on the devise to-himself, his executors insist that thereby, there was a presumptive satisfaction. We do not feel authorized, however, to concur in this conclusion. The will of James distributes his estate among his collateral kindred, in such a manner as to indicate that each bequest to his father’s legatees w?as made as a bounty to each of them, on account of their propinquity and not as a debt to a stranger, who, wdthout any claim as a creditor, would not have been a recipient of that bounty; and ibis deduction is fortified by the fact, that the charge upon his estate was collateral and consequential merely, without any direct or personal indebtedness.

Kx’rs. o.re properly chargable with interest where there is strong presumptive evidence iu the ease, that they used the money.

A legacy to be paid when the legatee attains majority, isvested, tho’ contingent, and should be paid to a trustee designated by the will.

We cannot, upon such facts alone, presume a “satisfaction.”

IV. . Nor can we sustain the objection made to so much of the decree as charges the executors with interest. There is strong ground for presuming that they used the funds in their hands, and though interest is charged by the decree, on the last instalment of the price of the land, for about a year before it was payable, yet this excess is more than counterbalanced by omitting to charge iutercst on other instalments of .greater amount, either paid or bearing interest, for more than a year before the decree charges interest thereon.

V. The objection to the decree in favor of E. L. Sioeeny, is not, in our opinion, sustainable. Ilois entitled to one half of the estate, after paying debts, and is also entitled, on attaining twenty-one years of age, to slave Joseph, and to Ihe hire of Joseph in the moan time. The decree allowed to Sweeny neither more nor less than he is thus entitled to demand. The executor, Henry, cannot complain that he is directed to account to Sioeeny for the hire of Joseph, when Sweeny attains majority. He is required, 'by the will, thus to account, and though the decretal order to that effect may now be irregular and unnecessary, still it cannot operate prejudicially to Henry.

Nor can the executors complain of so much of the decree as directs them to pay the amount of Sweeny’s pecuniary legacy to his trustee, designated by the will — that legacy is vested, and the trustee has a right to receive it now, even though it is bequeathed over on the contingency of Sweeny’s death during minority.

VI. Nor do we perceive any valid objection to the decree for an annuity to James Caldwell’s mother, as directed by the very first testamentary clause in his will; nor to the amounts decreed to other parties, or the times or manner of payment as directed. By executing the decree, the executors will be exonerated from all further liability to 1he infant legatees, to whose trustees the decree directs payment.

Tliis Court will not minutely ex-urn ine every item in thesotllement of vol ominous accounts, and long arithmetical calculations to find errors where none are specified by the parties.

Owsley for appellants: Apperson for appellees.

VII. If tliero be any available error in the decree it is, in our opinion, only in arithmetical calculations. Out-general examination of the record has not detected any such error, and in a case so multifarious, wo do not feci it to be our duty to make a very minute and elaborate calculation of every item, when the appellants have not specified any arithmetical error in any of tho details of tho decree.

Therefore, perceiving no substantial error, prejudicial to the appellants, the decree, as rendered, must be affirmed.  