
    LLOYD, EXECUTOR OF BILDERBACK, v. ROWE ET AL.
    1. In debt on a refunding bond, the executor must aver and prove notice to the legatee of debts, and a reguest to return so much of the legacy, as may be necessary to discharge those debts.
    2. But such reguest being specially averred, whether notice is not necessarily implied: Quaere ?
    3. The debts, for the discharge of which the legatee is bound to return the legacy, under the condition of the bond, are debts due by the decedent in his life time; and not the claims of the’ executor, for commissions and expenses in the settlement of the estate.
    4. Abalance found due the executor, on settlement before the Orphans’ Court, including commissions, is not therefore within the condition of the bond.
    5. If however the executor has exhausted all the personal estate in the payment of debts, his own expenses and commissions, and a legacy in full; and debts be afterwards discovered, the executor will be entitled^to call upon the legatee to refund, bo far as may be necessary, for the payment of such newly discovered debts.
    6. The general averment “ that the executor had not and hath not other assets to pay,” is sufficient; and it is not necessary to aver, that there wore no other legacies to abate.
    This was an action of debt brought on a refunding bond given by Jane W. Bilderback, who afterwards intermarried with the defendant, Rowe. The plaintiff set out the condition of the bond in the declaration, and then assigned the breach as follows : “whereas the above P. B. did, by his last will and testament, bearing date, &c., bequeath unto the above bounden J. W. B,, the sum of $500 ; and also did appoint the above named S. L., executor; and it was declared to be the condition of the said writing obligatory, that if the said sum of $500, or any part thereof, should, at any time thereafter, appear to bo wanting to discharge any debt or debts, legacy or legacies, which the said S, L., executor as aforesaid, should not have other assets to pay, that if then and in that case the said J. W. B., should well and truly return her said legacy, or such part thereof, as might be necessary for the payment of the said debt or debts, or for the payment of a proportionable part of said legacy or legacies, agreeably to the act of assembly in such case made and provided, then the above obligation should be void, or else should remain in full force and virtue. And the said plaintiff in fact saith, that after the making, &c., to wit, on, &c., at, &c., the sum of $309.24 did appear to be wanting to discharge debts due by the said P. B., in his life time, which debts the said S. L., executor as aforesaid, had not and hath not other assets to pay, that is to say, the sum of $145.-99-J found due to the said S. L., executor as aforesaid, from said estate, upon a settlement of his accounts, as such executor as aforesaid, made by the said Orphans’ Court of the county of Salem, to wit, on, &c., according to the form of the statute in such case made and provided : and also the following debts due by the said P. B. in his life time, and still remaining unpaid, and which debts were presented to the said S. L., executor as aforesaid, for payment, after the making of the said writing obligatory and the condition thereof, to wit, a debt amounting to the sum of $20, due to W. 1ST., (specifying each debt); which said debts amount in the whole to the aforesaid sum of $309.24 • and the plaintiff avers that the said J. W. B., although afterwards, to wit, on, &c., at, &e., requested by the said S. L., executor as aforesaid, to return the said sum of $309.24, being such part of her said legacy of $500, as was necessary for the payment of the said debts to the said S. L., executor as aforesaid, neglected and refused so to do, and still refuses; by reason whereof the said writing obligatory became forfeited,” &c.
    The defendants demurred specially to the declaration.
    
      A. L. JEaJcin and P. D. Vroom for defendants.
    1st ground of demurrer. The declaration should have averred notice to the legatee of the debts specified. The liability under the bond depends upon the existence of debts to be paid. This legacy appears to have been the only fund, out of which the debts were to be paid; and the legatee should have had notice to enable her to ascertain their validity and amount, for she was the only party really interested. The existence of these claims was exclusively within the knowledge of the plaintiff. Without notice the defendant could not know of them. 1 Chit. P, 319, Com. Dig., “Pleader,” (C. 73.)
    The request laid in the declaration is not tantamount to notice. It is altogether different. It is a request to return the money to the executor; not a notice of the debts, or of payment of the debts.
    2ndly. The executor claims as a'debt the amount found due him as executor, on settlement of the estate by the Orphans’ Court. This at any rate includes commissions, due “from said estate.” If so, it is not within the bond. The condition of the bond extends no further, than debts due from the testator in his life time. A claim for commissions is not a debt. The difference in the language used in relation to the claim of the executor, and the various debts due from the testator in his life time, shows plainly the nature of the executor’s claim.
    The bond is to be construed strictly in favor of sureties.
    The act under which the refunding bond is taken, was passed in 1774. Rev. L. 49. The act cannot have reference to any claim for commissions, for at that time, there was no law authorizing such claim. Commissions for executing a trust are of modern origin. If allowed in this state as early as 1774, it was of favor and not by law.
    It may be asked — shall the executor in such case have no remedy ? To this it may be answered,, that if he has a remedy it cannot be on this bond under the statute. It may be, perhaps, against the legatee herself.
    If any part of this claim be for commissions, the claim exceeds the right. 1 Green 97. 1 Lord Raym. 329, 2 Ib., 1382.
    3rdly. The breach is insufficiently assigned. The legacy paid, part of which is sought to be recovered back, was a general legacy. All general legacies abate in proportion. It ought to appear in the assignment of the breach, that the legacy was bound to bear the whole loss, and it should have been specially averred that there were no other legacies to abate, or that were bound to refund. The general allegation that the executor “ had not and hath not other assets to pay ” is not sufficient. •
    
      R. P. Thompson and L. Q. C. Elmer for the plaintiff. The rule of law as to notice is not disputed. The word return may fairly be construed to require notice; but here a request to return is specifically averred. If a special request be averred notice will be presumed. 1 Chit. Pl. 322.
    The second ground of demurrer is matter of evidence. The specification of the debts is surplusage, and might have been omitted. But the condition of the bond, liberally construed, will extend to the expenses of executing the trust, which are included in the balance found due the executor by the Orphans’ Court.
    The assignment of the breach is sufficient. 1 Chit. Pl., 325; Fletcher v. Peck, 6 Cranch 127; Hughes v. Smith, 5. John 168; The People v. Russell, 4 Wend. 573; Smith v. Jansen, 8 John. 111.
   Carpenter, J.

delivered the opinion of the court.

It is a well settled rule in pleading, that when the contingency upon which the contract is to be performed, or the matter alleged in pleading, lies more properly in the knowledge of one party than of the other, then such party must aver notice ; and further it must be specially averred, so that it may appear to have been given in due time and to a proper person. Com. Dig., “ Pleader ” C. 73; Hob. 51; Yelv. 168, note by Metcalf. When necessary specially to allege notice, it i-s equally necessary to prove it. Per. Holroyd, J. 6 M. & S., 295. In the present case, the rule and its application do not seem to be disputed. The result is, that notice to the legatee of the existence of debts, to satisfy which there are no other assets, must be alleged and proved; and a request to return so much as may be necessary to discharge those debts. But it is said, that a special request being laid, it necessarily pre-supposes and includes notice, and that notice will be presumed. Such undoubtedly would be the presumption after verdict, and so also after pleading over and on general demurrer. Vinyor’s case, 8 Co., 81; Com. Dig., “ Pleader," E. 9. Perhaps it might be held even on special demurrer, that such special request must necessarily imply notice. But it is of little importance 'in the present case; the second ground of demurrer having been well taken.

The bond is conditioned for the return of so much of the legacy, as may appear to be wanting to discharge any debt or debts &c., which the executor may not have other assets to pay. Even before the passage of the act, a legatee might have been compelled by the executor, to give bond and security to refund, in case the estate should prove deficient. But yet the refunding bond did not create the duty or obligation to refund. If debts appeared, of which the executor had not previous notice; indeed if losses were sustained upon outstanding responsibilities, which common prudence could not foresee or prevent, so that the estate became insufficient to pay all the debts and legacies, the legatee would be liable to refund, whether he gave security or not. It would be the common case of money paid by mistake, not legally due. Lord Mansfield, Cowp, 287; 1 Story Eq., Jur., § 92, 503. In this state the remedy has been enforced at law by way of set off, in a suit brought by the legatee against the executor. Harris v. Executors of Haines, 2 South., 422.

The refunding bond, then, is to secure repayment of so much of a legacy, as may be necessary to discharge subsequently discovered debts. The debts mentioned in the condition of the bond are obviously the debts of the decedent, due byhim in his life time, and not the claims of the executor for remuneration and expenses in the settlement of the estate. Commissions in this state include not only an allowance for the personal services of the executor, but also ordinarily the expenses to which he has been subjected. The expenses of administration, including personal remuneration so covered by commissions, are doubtless to be deducted and paid, before the executor can be compelled to pay debts; and the assets in his hands, for their payment, will be what remains after such deduction. The executor therefore who has exhausted the personal estate, after deducting expenses and a reasonable compensation for his services, if debts should be afterwards discovered, would be without assets for their payment and entitled to call upon a legatee, whom he had paid in full, to refund. If he had settled his accounts in the Orphans’ Court, the settlement and allowance there would be conclusive, in a suit against the legatee, except for assets or moneys, which might afterwards have come to hand. 1 South. 295. But, under the condition of this bond, the executor would be entitled to call upon the legatee to refund only for the purpose of paying such subsequently discovered debts, and not for the purpose of repaying himself the expenses of administration. Although secured indirectly, they cannot be directly claimed by name as such, for they are not within the condition of the bond. The balance claimed as due by the allowance of the Orphans’ Court, and which forms part of the breach assigned, obviously, as admitted, includes commissions. On the face of the declaration therefore, the demand exceeds the right. 1 Green’s R., 83, 97. The demurrer, therefore, on this ground, is well taken.

It is said that it is not necessary for the plaintiff to specify the debts, but that a general averment would be sufficient. The remedy on this bond is predicated on the existence of particular debts, which have subsequently come to the knowledge of the executor, and to discharge which, the legacy or a part thereof, appears to be wanting. The existence of these debts, honestly and fairly due, lies at the foundation of the claim, is within the knowledge of the plaintiff, and cannot be supposed to be within the knowledge of the defendant. It seems therefore to be a case, in which certainty and particularity in the statement are requisite. But assuming that the specification was unnecessary still it shows a claim by the plaintiff beyond his right, and to that extent the declaration is therefore ill. If an unnecessary statement show that the plaintiff has no cause of action, it will vitiate the declaration. Com. Dig. “Plead.” C. 29; Gould. Pl. Ch. 3, § 171.

The general averment, “ that the executor had not and hath not other assets to pay,” seems to us to be sufficient; and it was not necessary to aver specially, that there were no other legacies to abate. It is generally sufficient in pleading, to show a prima fade right to recover; and matter, which should properly come from the other side need not be stated. Unless the plaintiff shall ask leave to amend on the usual terms;

Judgment for the demurrants.

IIornblower, C. J., and Randolph, J., did not hear the argument, and expressed no opinion.  