
    Parker’s et al vs. Gilliam, et al.
    
    Nashville,
    December, 1837.
    A party who colludes with an executor to obtain the assets, or who obtains possession of the assets by joining the executor in the perpetration of a fraud upon the estate, or who receives the assets knowing that the executor in disposing of them, commits a devastavit, is liable to the distribu-tees, and the assets may be followed in his hands.
    About 1810 or 1812, David Dickinson sold to Daniel Parker, the ancestor of complainants, a negro woman named Cresy. Parker died at New Orleans in the army in 1814|or 1815, leaving $130 of the price of the negro unpaid, for which sum Dickinson held his note or notes. The defendant, Patsy, his widow, administered on his estate at October session of the Rutherford county court, 1815. In 1818, she intermarried with the-defendant, Cato Freeman. On the 13th of July, 1822, she settled her administration- account, when a balance of- $68 48, was found due the estate.
    Dickinson still held the notes executed by Parker, and, as complainants allege, they were barred by the statute of 1789. This being their situation, the defendant, Gilliam, applied to him to know if he would let him have the notes. Dickinson refused, unless it was the wish of defendant Patsy, stating to Gilliam, that he would neither himself distress her, nor put it in the power of others to do it. Gilliam told him that Mrs. Freeman wish-On enquiring of her of . , - ,. . i , deal ot solicitude that Gu--'ed him, Gilllani, to have the notes. the affair, she manifested a good-- -- — Ham should get the notes, though Dickinson told her that he would wait her own time for the money, and advised her to keep the negro and her children for her family. Hé accordingly let Gilliam have the notes. This was after July and before October, 1822, in which latter month, she and defendant Cato, confessed judgment to Gilliam as assignees of Dickinson, on the notes for $195 -84, debt and interest.
    About this time, the defendant, Freeman, had become indebted to Gilliam on his individual account, in about the sum of $250. Gilliam caused a ji. fa. to bé issued against defendants, Cafo aiid Patsy, as administrators of Parker, tested the third Monday of October, 1822, had it levied on Cresy and her children, Joshua and Rachael, all of whom were sold by the sheriff to satisfy the judgment obtained by Gilliam on Parkers notes to Dickinson, and purchased by Gilliam for $600. Gilliam paid the $600, hy the judgment, and by retaining $250 due from Freeman to him on his individual account. Whether he paid the sheriff the balance of the $600, is unknown, but he admits that he advanced Freeman $150? which is about the sum that would remain after deducting the judgment and Freeman’s private debt.
    Gilliam admits in his answer that he knew the negroes belonged to the estate of Parker.
    The chancellor believing that the solicitude displayed by Mrs. Freeman that Gilliam should get Dickinson’s demand against her former husband’s estate, was occasioned by a wish to enable her present husbarid, Freeman, to pay Gilliam by means of a sale of the negroes, his individual debt; that it was a breach of trust in her and Freeman to confess judgment on those notes when they were barred by the act of 1789; that Gilliam participated in this breach of trust, and in fact procured it to be committed, in order to secure his private demand against Freeman, decreed for the complainants, the children and heirs of Parker.
    
      R. J. Meigs-, for complainant.
    The question in this case is, whether the plaintiffs, who arc distributees, can follow the assets into the hands of third persons to whom the administra» ^ transferrec[ them ? This is the same question substan-wjj¡ch ¡g discussed with great ability in Hill vs. Simpson, 7 Yes. 152. It is unnecessary to refer to more cases, for this is directly to the point, and of the judgment of the Master of the Rolls therein, Lord Elden, in Lowther vs. Low-ther, 13 Yes. 95, says, “a more accurate and truly learned one never was pronounced.” But if more is necessary, I re-ferto 1 Story’s Eq. where the doctrince is lucidly stated, §422, 423, 424, 579, 580,581: M’Loid vs. Drummond, 14 Ves. 261 — 2, where the application of assets to pay an individual debt of the executor is considered, and 17 Ves. 154, 158,. 169, 170, 171.
    These authorities prove the defendant who received the as-' sets in discharge of an individual debt, due from the executor, is clearly liable.
    
      C. Ready, for defendants.
    Do these transactions upon' their face furnish evidence that a devastavit was committed by the administrators ? and if they dó, do they also furnish evidence that Gilliam was connected with that devastavit under' such circumstances as in legal contemplation makes him a‘ party to it? If both of these questions are decided in the affirmative, then a decree ought to pass against Gilliam, but not otherwise.-
    1. Does the statute of 1789, c 23, unconditionally bar all claims not sued for within two or three years, as the case may re, from the qualification of the executor or administrator? It does not. The proviso leaves a discretion in the breast of the executor or administrator. He may stipulate for indulgence, and if it be for five years, the creditor’s claim is not barred during that time.
    Although it is true that the judgment in favor of Gilliam' against Parker’s administrator, was not rendered nor suit brought until more than two years after administration granted,it may have been delayed on account of the special request of the administrator. Let it be admitted that it is the duty of executors and administrators to plead the statute of 1789, in all cases where special indulgence has not been given upon-' it must Vip nd- , u must ne aa the special request, Sic.; yet, on the other hand mitted it is not his duty to plead it when the indulgence has been extended upon special request. There is a presumption of law to which it may be necessary here to advert. It is, that officers and all persons charged with fiduciary trusts have done their duty, until the contrary is proved. A judgment is then rendered against an administrator, in a suit brought after the lapse of two years from the grant of administration. He did not plead the statute. The presumption is that he did his duty; and that he did not plead the statute because he had been indulged upon his special request, and this presumption must stand until the party charging him with a want of fidelity, overturns it by proof.
    The decisions of the court of Massachusetts in regard to the limitation of actions, furnishes no data for the construction of the statute' of 1789. The Massachusetts’ statute contains no proviso like' ours, and leaves no discretion to the executor or administrator.
    But if it even be held that the administrator committed a devastavit in confessing this judgment, is Gilliam a party to, and affected by that devaetavitf
    
    He was not to blame for endeavoring to collect his debt. He had the right to sue, and the administrator might plead the statute of two years or not. Brown and others vs. Jin-derson’s adndr. 13 Mass. Rep. 201. If he failed to plead it, that could not make Gilliam a party to the devastavit, if it be one in the administrator. The failure of the administrator to plead payment, when he might have successfully done so, would with equal reason make the plaintiff who recovered the judgment, guilty of a devastavit.
    
    
      2. Does the fact that a part of the price given for the ne-groes, was applied to the payment of Gilliam’s private debts against Freeman, make Gilliam liable to account for the ne-groes? See Jfugent vs. Gifford and others, 1 Atk. 463,-Where it was held that an executor having assigned over a mortgaged term of his testator to A, as a satisfaction of a debt due to A from the' executor, it was held a good alienation, and that A should have the benefit of it against the daughters of the testator, who were creditors under a marriage settlement-Qee also Mead vs. Lord Orrery and others, 3 Aik. 235, in which the decision in Jfugent vs. Gifford is recognised as correct. Whale vs. Boothe, 4 Term Rep. 625, note, Mansfield’s opinion: Sutherland and others vs. Brush, Crosby, and Palmer, 7 John. Ch. Rep. 17.
   Green, J.

delivered the opinion of the court.

In this case, the bill charges, that Freeman and wife, administrators of complainants intestate, committed a devastavit of their intestate’s estate, by confessing a judgment barred by the statute of limitations, in favor of the defendant, Gilliam, and when the assets of the estate were sold by virtue of Gilliam’s execution, a part of the proceeds of the sale was misapplied, by paying Gilliam a private debt due him from Freeman, and that defendant, Gilliam, colluded with said administrators’, in the commission of said fraud on the complainants. The answer admits the confession of judgment, the sale of the negroes, and their purchase by Gilliam; that he knew they were assets of the estate, and that'part of their price was applied to Freeman’s individual debt, but denies all fraud or collusion with the administrators to misapply the assets.

We think it is very clear that Freeman and wife intended, by the course they adopted in this business, to commit a fraud. If that were not their object, why had they so much solicitude that Mr. Dickinson should trade the note he held on Parker’s estate to Gilliam. The reason given by Mrs. Freeman, as stated in Gilliam’s answer, is manifestly a mere pre-tence. Gilliam’s answer states that Mrs. Freeman desired him to get the note that it might be paid and the interest stopped. Now if the administrators were determined to pay the note, to stop the interest, in spite of Mr. Dickinson’s repeatedly expressed willingness to indulge them as long as they might desire, why could they not pay Mr, Dickinson as easily as they could Gilliam. If they had no means of paying Gilliam but by the sale of the negroes, why might they not have sold the negroes to pay Mr. Dickinson? It will not be pretended that a forced sale under execution for cash, was likely to bo more beneficial to the estate, than a sale made by themselves on a liberal credit

The truth is, this reason for refusing to accept the ind'ul-gence Mr. Dickinson offered, and for desiring that ® ^ should get the note, is so manifestly absurd and false, that it cannot for.a moment be insisted on, and yet, it is the only reason the parties offer. As therefore there is no reason consistent with honesty, that has been given or that can be given, why this arrangement was desired, we must conclude that they were actuated by improper considerations.

By Gilliam’s getting the note, the estate of Parker would be injured, but these administrators would be enabled to pay a private debt, get some money into their hands to embezzle, and Gilliam would get his private debt on Freeman paid, and a family of negroes into his hands without paying out any money scarcely.

Gilliam’s account of the circumstances attending the transaction with Mr. Dickinson, is false. He would- have us believe that the sale of a horse to Dickinson, was the primary matter of interest with him, and that as Dickinson would not pay money but offered notes for horses, the note on Parker’s estate was incidentally spoken of, and so the trade was brought about. Now, if this were true, why would he be so solicitous to get the note on Parker’s estate. Mr. Dickinson had other notes which he was willing to give, and he was unwilling to give Parker’s note, declaring he never would distress the estate, or put it in the power of another to do it. But Gilliam insisted on getting the Parker note, and to induce Dickinson to give it up, told him the administrators wished it. Does not this show that he had some peculiar reason for wishing to get Parker’s note, and that lie had beforehand arranged with the administrators about it.

When we look at these circumstances, we cannot resist the conviction that Freeman and wife deliberately intended to commit a fraud in the disposition of this property, and that Gilliam actively co-operated in the iniquity. Various other circumstances might be mentioned going to confirm this view of the case, such as his pretence that he would make no arrangement with Freeman about bidding for the negroes, and yet buying them, and paying no money, but retaining it a long time in his hands, until by the increase of'his private claims on Freeman, he could pay it that way, thereby furnishing as much SUSpjcjon 0f jjjs conduct as could have been afforded by the act jje was s0 solicitous to avoid.

The view we take of the facts of this case, entitles the complainants to a decree. The principle laid down in all the authorities is, that a party who colludes with an executor to obtain the assets, or who obtains the assets by joining the executor in the perpetration of a fraud upon the estate, or who receives the assets, knowing that the intention of the executor in disposing of them, was to commit a devastavit or fraud upon creditors or distributees, is liable, and the assets may be . followed in his hands. 1 Atk. 463: 7 John. Ch. Rep. 17: 1 Story’s Eq. § 422, 519, 580.

Decree for complainants.  