
    *Jackson and Others v. Updegraffe and Others.
    August, 1842,
    Lewisburg.
    (Absent Allen and Baldwin, J.)
    Wills—Direction That Executor Should Receive and Pay Over Legacy Charged on Devisee—Case at Bar.— A testator, besides bequeathing a sum of money to his wife, and another sum to his daughter Bebecca, bequeathed to his daughter Susanna $4000. to be paid by his executors in equal payments of $1000. each after his decease. He devised lands to cer- ' tain devisees, provided they should pay into the hands of his executors the sum of $1000. per annum for eleven years. He made a bequest to two sons John and Samuel, they making themselves answerable for certain payments to his wife and his daughter Bebecca. And he directed his executors to receive $1000. annually from the devisees before mentioned for five years, to be paid over by them to his daughter Susanna. The remaining $6000. as it should become due, he gave to his sons John and Samuel. Under this will a question arose as to the quality and extent of the power conferred on the executors over the fund of $1000. per annum, charged on the devisees. Per Stanard, J., the proposition that this fund is identified with the personal estate of the testator, and passes to the executors subject in all respects to the executorial power over personal estate, and to all the liabilities of such estate, cannot be maintained: the legacy of $5000. for the daughter Susanna is not a general one, payable out of the personal assets, with the charge on the land as an auxiliary security, but is a legacy to be paid only by means of the charge; and the fund arising from this charge has no more the quality of personalty, than a fund arising from land directed to be sold to pay a legacy.
    Executors and Administrators—Application of Assets to Discharge Individual Liability—Effect.—Parties dealing with an executor or trustee, and cooperating with him in the misapplication of assets or trust funds, in violation of the duties of the executor, or in breach of the trust, cannot use such transactions as a defence against the claim of creditors, legatees, or cestuis aue trust. And the application of assets or trust funds, by the executor or trustee, to the discharge of his individual responsibilities, is, unless the estate or trust be indebted to the executor or trustee, a violation of duty or breach of trust.
    Samuel Jackson of Fayette county, Pennsylvania, who died in July 1818, by his will, after desiring- that all *his just debts should be duly satisfied as soon as convenient after his decease, devised to his wife certain real property for life, and bequeathed to her certain personal property absolutely, and also the sum of 5000 dollars in cash or current bank notes, to be paid by his executors as follows, viz. 1000 dollars to be paid as soon as possible after his decease, and the remainder to be paid in yearly instalments of 500 dollars each, to commence two years after his decease. Then, after devising certain real estate to his sons John and Samuel, he made the following bequest: “ I give and bequeath to my daughter Susanna Updegraffe, wife of James Updegraffe, the sum of 4000 dollars in full of her portion, to be paid by my executors to her or her heirs in equal payments of 1000 dollars each after my decease.” The reversion of the real property devised by him to his wife for life, was devised to his daughter Rebecca, and he also bequeathed to his said daughter Rebecca the sum of 2000 dollars in cash, one half of which was to be paid by his executors as soon as she might want it and as soon as possible after his decease, and the other half to be paid in two years after his decease. He then devised and bequeathed as follows : “I give and bequeath unto my son Josiah Jackson and my daughter Ruth Dixon, wife of Henry Dixon, all my lands and other property in Monongalia county, Virginia, consisting of forge, slitting and rolling mill, grist and saw mill, with sundry other improvements : provided nevertheless, that they jointly and severally pay or cause to be paid into the hands of my executors the sum of 1000 dollars per annum for the space of eleven years, to be by them appropriated as shall be hereafter mentioned.” After a devise and bequest to his son Jesse Jackson, and after directing certain property to be sold and the proceeds appropriated towards completing and finishing the glass works establishment then progressing, and also directing certain other property *to be sold and a payment out of the proceeds of sale of 500 dollars to his daughter Rebecca, he bequeathed as follows : “ It is my will and desire that the stock I hold in the Monongalia bank of Brownsville, and my stock in Clarksville manufacturing company, and all debts due me at my death, shall after my decease belong to, and I hereby bequeath the same to my sons John and Samuel, they making themselves answerable and paying the dower herein given to my wife, and the balance of the legacy herein granted to my daughter Rebecca. Item, My will and desire is, and I order it so to be done, that my executors receive annually 1000 dollars, as is herein mentioned and expressed, from my son Josiah and my son in law Henry Dixon, for the space of five years, which sum, as soon as may be after its reception, shall be by them paid over to my daughter Susanna or her heirs. The remaining 6000 dollars, as it becomes due, I give and bequeath to my sons John and Samuel, in order to compensate them for making advances of moneys to pay debts that I may owe, and to enable them more effectually to complete their glass manufactory.” Then, after authorizing his executors to make sale of his real property not before enumerated, and divide the proceeds amongst all his children, he appointed his sons John Jackson and Samuel Jackson executors of his will. The testator, by a codicil, revoked the devise and bequest to his son John, and in lieu thereof devised and bequeathed the same property to John’s children. The death of the testator occurred before the 28th of July 1818.
    The executors took probat of the will in Pennsylvania, and one of them (John Jackson) also qualified in Virginia. The testator’s daughter Susanna died in 1823, leaving six children, Anne, Joseph, Rebecca, Maria, Samuel and Rathan. Anne married Jourden Parker, who afterwards died. Their father qualified in Pennsylvania as guardian of the others, and brought an ^action there for the legacy against the executors. This action having proved unavailing, a suit was brought in Virginia, in the superior court of chancery formerly holden at Clarksburg. The original bill was in the name of the surviving husband and children of the legatee Susanna, but an amended bill was afterwards filed, making the husband a party plaintiff in the character of administrator of his deceased wife. The defendants were John and Samuel Jackson the executors, and Josiah Jackson and Henry Dixon and Ruth his wife, and the bill prayed that unless the legacj' should be paid in such time as the court might direct, such part of the real estate charged therewith might be decreed to be sold, as might be sufficient to pay the same.
    Josiah Jackson, in his answer, insisted that he had paid the legacy in full to the executors. The suit was proceeded in against the other defendants in the mode prescribed by law as to absent defendants.
    The circuit court of Monongalia (to which court the case had been removed) made an order directing a commissioner to ascertain how much, if any, of the legacy had been paid by the devisees to the executors, and how much of what was paid to the executors, had been paid over by them to the parties entitled.
    -V report was made, to which the plaintiffs filed exceptions ; and the circuit court, sustaining the exceptions, recommitted the report.
    A second report was made, stating that no part of the legacy appeared to have been paid the executors, unless certain vouchers referred to in the .previous report, and decided by the court to be insufficient, were received as evidence of payment. To this report exceptions were filed on the part of the defendants. And the cause came on to be heard the 19th of April 1836, upon the said report and exceptions.
    The payments alleged to have been made to the executor John Jackson rested for proof on certain papers '^purporting to be his receipts, and on two depositions of Thompson Reave. One item was a charge of 902 dollars 25 cents, which Reave stated was the amount paid by Reave & son, between the 20th of March 1818 and the 10th of May 1819, to John Jackson for the proceeds of the sales of paper deposited with them by Jackson & Sharpless. The defendant Josiah Jackson had exhibited with his answer an account professing to embrace all the claims of Josiah Jackson in transactions with the executors or either of them, but the account so exhibited did not include this sum of 902 dollars 25 cents, though it comprehended all the other claims res'ulting from the transactions with Reave & son. In respect to another item, of 1763 dollars 13 cents, for nails and brads delivered to John Jackson between June 1820 and June 1823, which was attempted to be sustained by the evidence of Reave, there was no ground to conclude that the nails and brads were the same mentioned in two receipts of John Jackson separately charged. Both of these receipts shewed that John Jackson received the nails for Josiah Jackson, and bound himself to pay over to the said Josiah the proceeds of the sales of the same when sold. Another charge was a debt of John Jackson to Reave & son, charged to Josiah Jackson. Another was a draft of Josiah Jackson on Neave, on nail account, in favour of John Jackson. Only one other payment to John Jackson was alleged, and of that there was no evidence except a paper purporting to be a receipt, but which was not proved.
    The evidence of payments to or claims on the executor Samuel Jackson, is (in the view-taken thereof by the court of appeals) unnecessary to bé stated, with a single exception. There was a paper marked F. importing that Samuel Jackson received, the 26th of March 1825, of Josiah Jackson, 3969 pounds cut nails, in full of the last 6000 dollars due John & Samuel Jackson from the estate of Samuel Jackson deceased, as devised in his *will. The genuineness of this paper was drawn in question.
    The circuit court overruled the defendants’ exceptions, and by consent of James Updegraffe administrator of his deceased wife, decreed that the defendants Josiah Jackson and Henry Dixon and Ruth his wife pay to the plaintiffs who were children of Susanna Updegraffe, the sum of 5000 dollars, with legal interest on 1000 dollars parcel thereof from the 28th of July 1819, on 1000 dollars other parcel thereof from the 28th of July 1820, on 1000 dollars other parcel thereof from 28lh of July 1821, on 1000 dollars other parcel thereof from the 28th of July 1822, and on 1000 dollars the residue thereof from the 28th of July 1823,-until paid, and the *costs of suit; and the decree provided that unless the said sum of 5000 dollars, with the interest and costs, should be paid within 120 days from the date of the decree, the lands devised to Josiah Jackson and Ruth Dixon, or so much thereof as might be necessary, should be sold.
    On the petition of Josiah Jackson and Henry Dixon and Ruth his wife, an appeal was allowed from the decree.
    The cause was argued in August 1840, before Tucker, P., and Brooke and Stanard, J., by C. Johnson for the appellants, and Baldwin for the appellees.
    Johnson said, the court below seemed to have thought that the trust to receive the annual sum of 1000 dollars was a personal joint authority to the executors, which could only be discharged by their joint act. But he insisted it was an official trust, which could be performed as any other ex-ecutorial trust. It is created by the official designation. The clause in the first part of the will containing the bequest directs the payment bj”- the executors, and under that clause it must have been payable. out of the general assets. The subsequent provision in the will only creates a specific fund to be received by the executors, to enable them to discharge the legacy given by the previous clause. As executors, then, they are to receive, and as executors they are to pay, by the express terms of the will. Suppose the executors had not qualified, they surely would have had no right to receive the money. Having qualified, they are entitled to receive the same, and may receive it in equivalents or commutables, as well as money. The case of Wilkinson & Co. v. Holloway, 7 Leigh 277. in which it was held that an attorney employed to collect money cannot receive bonds or other things under that authority, has no application to this. Here the executors gave an official bond, and have all the power *of the testator where they act bona fide. And surely neither the debtor who gives, nor the executor who receives money’s worth in discharge of a debt, is chargeable with bad faith. The principle of the case of Graff &c. v. Castleman &c. 5 Rand. 201. applies only to a few items of disbursements claimed by Josiah Jackson as made to the executors. And even in respect to these, there is pregnant proof in the deposition of Neave, that those debts were the result of a previous authority given by Josiah Jackson to the ostensible creditor, to make advances to the executors on account of their claim as such. The objection is made, that none of the receipts but that marked F. import to be given as executors, or on account of the sums payable by Josiah Jackson under the will, and that they were private transactions, having no connection with the claim of the executors or the responsibility of the devisees. There was, however, no running account between the parties; no claim on Josiah Jackson but for the sums payable under the will. And the only effect of the omission to state, on the face of the receipts, that the executors received in that character, is to throw the burden of proof on the party paying. The last receipt is avowedly for what was payable under the will, yet that is not subscribed as executor. (The counsel then examined the evidence in the cause, and endeavoured to shew that it established all that was necessary on the part of the appellants.)
    Baldwin for the appellees.
    The executors were entitled to the 6000 dollars for their own use. Over that they had full dominion, and against that Josiah Jackson was entitled to credit for any liabilities they might incur to him. Not so as to the 5000 dollars. As to this, they stood in a fiduciary character, with the limited and special authority of trustees, liable themselves for a breach of the trust, and with a liability on the part of others concurring in that breach of trust. The power given in this case to the two trustees could not be lawfully *executed by one. 2 Story’s Eq. 322. $ 1062. On this ground alone the alleged payments are no discharge; for both have not joined in the receipts, and in the case of trustees, as distinguished from executors, this is indispensable. Id. 521. | 1280. But another objection to the validity of the alleged payments arises from the duty of trustees to keep the funds of their trust distinct from other funds. 2 Fonb. Eq. 187. (Philad. edi. of 1831, p. 474. note.) They are not permitted to apply the trust funds to their own debts, trade or business. To the authorities cited by the judge of the circuit court may be added the case since decided of Fisher v. Bassett and others, 9 Leigh 119. Furthermore, the trust in this case was created by a will containing special directions, which should have been faithfully followed. 2 Story’s Eq. 517. § 1276. There was no right to receive payment but in monej'. The decision in Wilkinson & Co. v. Holloway is quite apposite to the case. (Having laid down these principles, the counsel proceeded to examine the evidence, and to shew, upon each ground, the invalidity of the alleged payments.)
    The cause not having been decided before the resignation of Tucker, P., was again argued in August 1842, before Gabel, P., and Brooke and Stanard, J., by C. and G. N. Johnson for the appellants, and Guy R. C. Allen for the appellees. The argument on this occasion was chiefly upon the evidence, to shew the proper inferences therefrom. But in the course of the argument, G. N. Johnson, for the appellants, maintained, 1. That the thing given to the executors being money, though they had a right to charge the land for it, they took it as executors, and not as trustees. 2. That being executors, a payment of nails and iron to one of them was good, if accepted by him in satisfaction ; (citing Sallee v. Yates, 1 Wash. 226. in which payments in paper money were held good, in accordance with the custom of the country, “though before the act of assembly authorizing such payments.) 3. That even if the executors were to be considered as trustees, one might make a valid contract, and the assent of the other be presumed. Nelson v. Carrington & others, 4 Munf. 332. He also, in noticing the doctrine of Graff &c. v. Castleman &c. 5 Rand. 201. cited and commented on Landley v. Merrifield, 7 Leigh 360, 61. The counsel for the appellees referred to the authorities relied on by the judge of the circuit court, and to the case of Wilkinson & Co. v. Holloway. He insisted that the trustees here were as limited in their authority as the attorney at law in that case. He insisted further, that the trustees could not give a release in consideration of a debt due from themselves individually. As well might they give such release for no consideration, as for a consideration enuring entirely to their own individual benefit.
    
      
      The former had been consulted by the appellee; the latter was counsel for him in this court.
    
    
      
      Executors and Administrators—Breach of Trust.— On this subject, see the principal case cited in Barksdale v. Finney, 14 Gratt. 338; Davis v. Christian, 15 Gratt. 49; footnote to Jones v. Clark, 25 Gratt. 642; Edmunds v. Venable, 1 P. & H. 140; Boisseau v. Boisseau, 79 Va. 77. See monographic mote on “Executors and Administrators” appended to Rosser v. Depriest, 5 Gratt. 6.
    
    
      
      Judge Fry, who pronounced the decree in the circuit court, delivered a very elaborate opinion. He considered that the executors were, as to the legacy, trustees, and their authority over this fund more limited than that of an executor over assets; citing, to shew the difference between an executor and a trustee, Graff &c. v. Castleman &c. 5 Rand. 208-9. He declared it to be a principle, that a trustee cannot apply the trust fund either to the payment of his own debt, or to his private trade or business, and that all persons who are privy to and aiding him in so doing, are precluded from taking any benefit from their act; citing, in support of this proposition, and to shew the extent to which it is carried, Wilson v. Moore, 1 Mylne & Keene 337. 7 Cond. Eng. Ch. Rep. 73. Graff &c. v. Castleman &c. 5 Band. 201. Then the judge examined the evidence, and from it came to the conclusion, that the alleged payments to and receipts of Samuel Jackson were confined to his own legacy, and to his private dealings and business with Josiah Jadcson, and that it was fraud to attempt to make them serve the double purpose of discharging the legacy of mrs. TJpdeoraffe. Proceeding further to examine the case as to the alleged payments to John Jackson, it seemed to him that the sum of 902 dollars 25 cents, composed of payments which had commenced before the testator’s death, was manifestly the private debt of John Jackson; that the sum of 1763 dollars 13 cents was for the same nails and brads mentioned in two receipts of John Jackson separately charged, and must moreover be altogether excluded upon the principles before mentioned ; and that the want of sufficient evidence to support the other claims, and the principles aforesaid, required the rejection of the same
    
   STANARD, J.

The fate of this case depends on the fact and validity of the payment, alleged by the defendant Josiah Jackson to have been made, of the annual instalments intended for the daughter Susanna.

It requires but a brief examination of the record, though the mind of the enquirer be disposed to make the most charitable construction, to find the most convincing proof that the defendant Josiah Jackson, in his efforts to sustain the defence, has been betrayed into gross inconsistencies, has made many misstatements, has in numerous instances duplicated his claims of credit, and has put forward unfounded pretensions or suppressed material facts. But all this, though it may cover the defence with suspicion, does not necessarily doom it to unconditional condemnation. The judicial annals of this and other countries are not without examples of attempts to vindicate innocence by falsehood, nor of a resort to fraud and misstatement to sustain claims or defences intrinsically sound and sustainable “without such auxiliaries; and though a court of equity may refuse its aid to a plaintiff who has resorted to fraudulent misstatements or suppressions to obtain it, it has no right to inflict the forfeiture of a defence, if otherwise good, because resort has been attempted to such reprobated auxiliaries. Such an infliction would be a punishment of the delinquent, not perhaps undeserved, but would not fulfil the appropriate function of a court of equity, which is to administer justice between the parties. The detection of misstatements, inconsistencies, and efforts to deceive by concealing facts or by unfounded suggestions, while it justly subjects the defence to strict scrutiny, should also warn us to conduct the scrutiny with jealous caution against the prepossessions that such detection is calculated to produce.

That the traits I have suggested as characterizing the defence have not been overcharged, a short survey of the facts developed by the record will evince. [Here the judge went into some specifications, to shew the general traits which mark and cast suspicion on the defence; and he then proceeded as follows:]

Without adding to the number of these specifications, which might easily be done, I proceed to the enquiry how far the evidence in the record affords satisfactory proof of valid payment, in whole or in part, to either or both of the executors, of the annual sums charged on the devisees in favour of the daughter Susanna.

[The judge examined first the evidence of payments to, or claims on, the executor Samuel. If the receipt R. was genuine, he considered the fair construction thereof to be, that it was for a small sum as a balance of the 6000 dollars payable to John and Samuel Jackson, as contradistinguished from the 5000 dollars to which the daughter Susanna was entitled. And upon the whole evidence in relation to said payments or claims, his *conclusion was, that they . were not only not shewn to be for Susanna’s annuity, but were affirmatively shewn to be on a different account, and ought not to affect the claim of her representatives on the devisees.

Next investigating the alleged payments to the executor John, the judge identified the item of 1763 dollars 13 cents, attempted to be sustained by Neave’s deposition, with the nails and brads mentioned in two receipts of John Jackson separately charged, the effect of which identification was to limit the charge, at all events, to the said sum of 1763 dollars 13 cents, and not permit any additional charge on account of the receipts. And then he proceeded as follows:]

To the decision of the question touching the efficacy of the transactions of the devisee Jackson with the respective executors, as payments or discharges of the instalments to which the daughter Susanna was entitled, it was deemed by the counsel, especially on the former argument of this cause, important to determine preliminarily the quality and extent of the powers conferred by the will on the executors, over the fund provided by the charge on the devisees. On behalf of the appellants it was contended, that the executors took this fund as personal property, and that their power over the fund was as plenary in all' respects as it was over the personal property of their testator. On the other hand it was contended, that this fund was the issue of real estate dedicated by the will of the testator to a specific object, not forming a part of the personal estate of the testator, and not chargeable in the hands of the executors with debts, or other liabilities of personal estate; and that the power of the executors was in the nature of a trust, which could be duly exercised only by their joint act. In my view,' it is not necessary | to the decision of the case that this question should be solved. I may say however, in passing, that I have examined the question with care, and that that examination *has left a deep impression that the general proposition, that this fund is identified with the personal estate of the testator, and passes to the executors subject in all respects to the executorial power over personal estate, and to all the liabilities of such estate, cannot be maintained. The just construction of the will, taking all its provisions together, is, according to my impression, that the legacy is not a general one, payable out of the personal assets, with the charge on the land as an auxiliary security, but is a legacy to be paid by the proceeds of the charge on the land, and that the charge supplies the only fund for its payment. The consequence of this construction is, to divest the fund of the quality of personalty ascribed to it by the appellants’ counsel. No proposition is better settled than this, that a devise of real estate to executors to be sold, or that real estate be sold by executors, for the payment of legacies, does not impress on the proceeds of sale in the hands of the executors the quality, or subject them to the liability, of personalty: and it would be difficult to distinguish between a fund issuing from realty by a charge and by a sale, both coming to the hands of the executors for the same specific purpose. In respect to such a fund, the most that could be said is, that when the will directs it to the hands of persons nominatum, who are not executors, the construction is that the power is to be exercised in the terms and manner it is given, that is, jointly, and it would not even survive; but when it is given to executors, the power is expounded by the nature of the executorial power, and as that is a joint and several power and survives, the inferred intention is that such should be the quality of the power under such a disposition, and the construction gives effect to this inferred intention. In such case, the executors take the power, not virtute officii, but ratione officii. The question, however, touching the validity of the alleged payments, will be considered on *the hypothesis that the power, in respect to the receipt of the instalments charged on the land for the daughter Susanna, was as plenary as that of executors over personal estate.

Thus considering it, one general .principle need only be premised; and that is, that parties dealing with an executor or trustee, and co-operating with him in the misapplication of assets of trust funds, in violation of the duties of the executor or in breach of the trust, cannot use such transactions as a defence against the claim of creditors, legatees or cestuis que trust: and the application of assets of trust funds by the executor or trustee to the discharge of his individual responsibilities, is, unless the estate or trust be indebted to the executor or trustee, a violation of duty or breach of trust. This principle rests on the firmest foundation of authority, and indeed is not contested.

The evidence to sustain the first charge of 902 dollars 25 cents, shews a liability of John Jackson to Jackson & Sharpless, arising from receipts under an authority which originated at a date antecedent to the death of the testator, and which therefore could have no reference to the rights and responsibilities resulting from the will. Standing on the simple fact of the receipt of the funds of Jackson & Sharpless (and that is all that is proved), it made John Jackson indebted to Jackson & Sharpless, and without some farther posterior agreement between Jackson & Sharpless and John Jackson, could not be set off even against a claim of John Jackson on Josiah Jackson. But suppose there was distinct proof of such posterior agreement, that these receipts should be considered a payment on account of the annuity which the executors were to receive for the daughter Susanna; it would be an application of the instalments for the daughter to the discharge of a debt of John Jackson to Jackson & Sharpless, and therefore, on the general principle premised, wholly invalid. Besides, x'the claim on this transaction as connected with the liabilities of the devisees, is exposed to strong suspicion, if not certain condemnation, on another ground. The account exhibited with the answer, professing to embrace all the claims of Josiah Jackson connected with those of the executors or either of them, does not include this, though it comprehends all the other claims resulting from the transactions with Neave & son; and while this shews a liability of John Jackson to Jackson & Sharp-less in its origin, no account of any kind between them is exhibited. The implication is, that there were- accounts between those parties, and that they have been suppressed. To my mind it is clear that this item ought to be excluded, not only as a credit against the instalments to which Susanna was entitled, but from the accounts between Josiah Jackson and the executors, or either of them.

Having identified the item of 1763 dollars 13 cents with the nails and brads mentioned in the two receipts of John Jackson before adverted to, the delivery of these nails and brads is not referrible to the general authority of Josiah Jackson to Neave & son to honour the calls of John Jackson (spoken of in Neave’s deposition), but to the authority derived from John Jackson’s possession of the receipts. The effect of the receipts was to create a personal liability of John Jackson to Josiah Jackson, for the nails or the proceeds of them. There is no proof, or attempt to prove, that this original liability has, by subsequent agreement, been changed. Standing on that footing, had John Jackson, as executor, sued for the annual instalments, this personal demand on him could not be set off, and had he been sued on it, he could not have set off the claim for the annual instalments. But suppose the subsequent agreement that this personal liability should pro tanto be a satisfaction of the annual instalments; it would be an application of the annual ^'instalments to the discharge of the debt of one of the executors, and, on the principle before stated, invalid. The debt of John Jackson to Neave & son, charged to Josiah Jackson is confessedly within the principle aforesaid, and invalid as a payment or discharge pro tanto of the annual instalments.

The draft of Josiah Jackson on Neave, on nail account, in favour of John Jackson, is on its face a transaction between the said John Jackson and Josiah Jackson, having no connection with the estate of Samuel Jackson. It is a matter between tliem personally. It was not paid by Neave under the general authority spoken of in his deposition, but on the specific draft of Josiah Jackson. All the other items with which it is associated arise from dealings shewn to be personal to the parties, and in their own individual names; and that still more distinctly impresses on it the character it bears on its face; and upon sound principles of evidence, that character only can be safely ascribed to it.

We thus ascertain that not one of the charges drawn from Neave’s account, and attempted to be sustained by his deposition, can be considered as a payment to John Jackson of, or on account of, the annual instalments to which Susanna was entitled.

The other pretended payment to John Jackson is attempted to be sustained by a receipt, which is not authenticated by proof; and if it were, it is like the two other receipts before mentioned, and, as a payment, would share the same fate.

The conclusion from a scrutiny of the alleged payments is, that not one of them can be applied to the yearly instalments for Susanna. A general survey of the whole matter in proof fortifies this conclusion. Excluding the item of 902 dollars 25 cents received b3r John Jackson for Jackson & Sharpless, (as it ought to be, for the reason before given,) from the transactions between Josiah Jackson and the executors and each of'x'them, the amount of all the claims of Josiah Jackson on either and both of the executors, on all these transactions, established by adequate proof in this.case, falls short of 6000 dollars, unless resort be had to receipt F. ; and with the aid of that receipt, only reaches that sum. I have forborne any special notice of that receipt, or to ascertain the extent or depth of the shadow that the circumstances under which it appears in the record should cast on the defence. I am satisfied that in whatever light it is viewed, whether as genuine or antedated or fabricated, it cannot aid the defence; and all that the defendant can with any reason hope for, is that it should not prejudice it.

The three judges concurred in oiJinion. that the decree should be affirmed.  