again, in Doyle v. Blake, 2 S. & L. 242, his Lordship observes, "The true con-
sideration in a question of this kind is, whether the executor who merely joins
in the receipt, had a control; and his joining in the receipt is evidence of that
control, although the money was actually received by the other."
We may conclude, therefore, that where funds belonging to executors are
not under the individual control of each executor, although one of them joins
with his co-executor in any act or receipt which will have the effect of putting
the funds into his hands, as the joining was absolutely necessary, and was not,
therefore, evidence that the executor so joining thereby assumed a control
over the fund, the principle which governs the case of trustees will be appli-
cable, and he will not be liable, at any rate where he has used due caution,
for the misapplication of the fund by his co-executor. Thus, it is laid down
by Lord Rosslyn, in Eovey v. Blakeman, 4 Ves. 608, that if a bill of exchange
is remitted to two agents, payable to them personally, who, on the death of
the principal, become executors, the mere indorsement of one, after they are
executors, in order to enable the other to receive the money, is not sufficient
to charge him who does not receive it.
So, if stock is standing in the names of two executors, the joining of one
executor with the other *in a sale would be considered with reference
to the principles applicable to trustees : Chambers v. Minchin. 7 Ves. L ' 0J -I
197.
But an executor will not be justified in so joining, upon the mere represen-
tation by his co-executor that the stock is wanted for the purpose of adminis-
tration ; for if he neglects to make proper inquiries, he will be liable for the
misappropriation of his co-executor ; but he will not be charged for so much
as was properly applied. This subject was much discussed in the important
case of Lord Shipbrook v. Lord Hinchinbrook, 11 Ves. 252; 16 Ves. 477,
where three executors, two years and a half after the death of the testator,
joined in executing a power of attorney to a co-executor for the sale of stock,
upon his representation that it was required for payment of debts ; it was
held by Lord Eldon, that they were liable for so much of the money arising
from the sale of the stock as was misappropriated by their co-executor, but
not for such part as they could prove was applied in payment of debts, although
at the time he was in possession of other funds, part of the assets which he
had not received through them, and which funds he wasted ; and his Lord-
ship held, that if it could not be ascertained that any part of the money had
been applied in payment of debts, the executors would be liable for the whole
462 LIABILITY OF TRUSTEES AND EXECUTORS.
sum • and lie directed an inquiry, whether the specific money received hy the
co-executor was applied in discharge of any, and what debts. " This case,"
said his Lordship, (16 Ves. 479,) " depends upon the principle applicable to
trustees. The fund being vested in the names of all the executors, it was
necessary that all should join in the act which placed the property in the pos-
session of one of them ; and my mind had reached this conclusion, that, as
these executors could not be held answerable for the balance for which their
co-executors was to account separately, they had a right to contend, at least,
that they should be allowed so much of the fund as had been applied to the
purpose to which it ought to have been applied, as they might have been
compelled so to apply it.
" The question, therefore, arose as to the difference, the proof of due ap-
plication being upon the executors ; and the circumstances are, that., all of
of them having proved the will, proceeded to have the stock transferred into
their own names. During two years and a half from the death of the testa-
trix until July, 1779, when the transaction upon which this question arises
took place, this individual had been acting in the executorship, trusted, and
very naturally trusted, by the other executors, upon whom no moral blame
attaches, but merely that degree of negligence which is frequently observed
in very honorable men. The law, it must not be forgotten, *supposes
[*760] tba( . seething [ s to be done in a year ; and these executors, intrust-
ing their co-executor during the period I have mentioned, ought, at least, to
have made some inquiry what had been doing in these affairs. If, making
that inquiry, they were misled, that is a distinct case ; but, making no inquiry,
they are satisfied with the information, which proves groundless, that he wants
the money for the purpose of paying debts. They ought to have inquired
how that could be; and though it is not a consequence that they might not
place the remainder of the property in his hands, it must surely be at their
risk, if they were aware that he had been, not acting according to his trust,
but grossly violating it. This, therefore, being the case of executors, who,
making no inquiry whatever, permitted their co-executor to do just what he
pleased, has no resemblance to Bacon v. Bacon, (5 Ves. 331,) — taking that
decision to be right, as to which I give no opinion — or any other case ; and a
decision that executors are not to be charged in such a case would amount to
this, that executors can in no case be chargeable." See also Underwood v.
Steve?is, 1 Mer. 712 ; Bick v. Motly, 2 My. & K. 312 ; Williams v. Nixon, 2
Beav. 472; Hewett v. Foster, 6 Beav. 259.
Executor paying over assets unnecessarily to Co-executor. ,] — According to
the same principle, by which an executor is liable for joining with his co-
executor in a receipt, he is also liable if he receive the whole or part of the
testator's assets, and pay it over voluntarily and unnecessarily to his co-executor,
and the same is embezzled or lost. See Tou-nsend v. Barber, 1 Dick. 356, in
which case an executor, who possessed fourteen East India Bonds, part of
the testator's assets, having permitted another executor to get them into his
TOWNLEY V. SHERBORNE. — ERICE V. STOKES. 463
possession, who disposed of them and afterwards became bankrupt, his estate
was held liable to answer the value of the bonds.
So, in Langford v. Gascoyne, 11 Ves. 338, the widow of the testator gave
a bag of money to Spurrell, who delivered it over to Gascoyne, one of his co-
executors, without Lambert, the other co-executor, who, it seems, was present
at the time, having said or done anything whereby, or in consequence of
which, the money was so placed in the hands of Spurrell. It was held by
Sir TV. Grant, M. R., that Spurrell and Gascoyne, but not Lambert, were to
be charged with the money contained in the bag. " The rule," observed his
Honor, " in all the cases is, that if an executor does any act, by which money
gets into the possession of another executor, the former is equally answerable
with the other ; not where an executor is merely passive, *by not ob-
structing the other in receiving it. But if the one contributes in L *
any way to enable the other to obtain possession, he is answerable, unless he
can assign a sufficient excuse, as there was in Bacon v. Bacon, 5 Ves. 331, a
justifiable object.
" In this case, Spurrell chooses to part with this money, of which he had
the possession, probably from an innocent motive, thinking Gascoyne more
fit to be trusted with it than himself or the other executor. But in most of
these cases, where executors were charged, the motive was innocent, only
the result was unfortunate. I feel very great reluctance to charge an exe-
cutor in such a case ; but it is impossible, without breaking through the rule,
not to say, he has exercised an act of judgment and discretion, — an act of
selection, — by putting the money into the hands of Gascoyne rather than
the other executor, or keeping it himself, depriving himself and the other
executor of any control over it. He did that act, and this loss is the con-
sequence. This is a very hard case, but so are all these cases.
" As to the other executor, Lambert, it is impossible to charge him. He
has neither done nor said anything that in any degree contributed to the loss
of the money, or to its getting into the hands of Gascoyne. It is not in-
cumbent upon one executor by force to prevent its getting into the hands
of another." See also Trutch v. Lamprell, 20 Beav. 116.
So an executor is liable if by any other means he puts the assets into the
possession of his co-executor : thus, if he joins in indorsing, (Hovey v.
Blakcman, 4 Ves. 608,) or drawing, (Sadler v. Hobbs, 2 Bro. C. C. 114,) a
bill. And see Gregory v. Gregory, 2 Y. & C. Exch. Ca. 313 ; but see Bal-
chen v. Scott, 2 Ves. jun. 678.
And, upon this principle, it is laid down by Chief Baron Hale, in Gill v.
Attorney- General, Hard. 314, that though, in the case of joint executors,
none is chargeable for more than comes to his hands severally, yet if, by
agreement amongst themselves, one be to receive and intermeddle with such
a part of the estate, and another with such a part, each of them will be
chargeable for the whole : because the receipts of each are pursuant to the
agreement made betwixt both ; and see Moses v. Levi, 3 Y. & C. Exch. Ca. 359.
But the rule does not apply, if, in the discharge of a necessary duty, an
464 LIABILITY OF TRUSTEES AND EXECUTORS.
executor pays over money to his co-executor. Thus, in Bacon v. Bacon, 5
Ves. 331, an executor residing in London paid £700 to Kirby, his co-executor,
who resided in the country, who had been the confidential attorney and agent
of the testator, to pay the debts of the testator owing to creditors in his
neighborhood, Kirby informing him, that he had *no money belonging
[*762] tQ ^ testator j n his hands ; and, upon Kirby afterwards producing a
book of accounts, containing a list of debts, which he alleged he had paid,
exceeding £700, and also an account of debts remaining unpaid, which, with
the debts alleged to have been paid, exceeded £1200, he induced his co-exe-
cutor to advance a further sum of £500, in order to enable him to discharge
the debts then remaining unpaid, Lord Rosslyn held, that the executor who
had paid the money should not be charged with the loss of it. " Supposing,"
said his Lordship, " that Kirby had not been co-executor, but that the exe-
cutor, living in London and receiving money of the testator's, had remitted
to the attorney of the testator to pay the debts, could he have been liable?
Kirby was in no insolvent circumstances. He was a man in business at Ips-
wich, had been attorney of the testator, (I take him no higher than that,)
was acquainted with all his affairs, had his accounts in his hands, and the
first payment was three weeks after his death. In the ordinary management
of executor, how was he to pay the funeral expenses and the number of small
debts appearing upon the books of the testator, without sending the money ?
The payment is made by the defendant only, because he happened to have
money of the testator's in his hands at the time. If the business was trans-
acted in the ordinary manner, unless there was some circumstance to awaken
suspicion, surely the allowance is fair."
So, where three executors and trustees were authorized to carry on the
testator's farming business, which was by arrangement managed by one of
them, it was held by Sir J. Eomilly, M. R., that in taking the accounts the
executor who managed the farm was to be considered as an agent. Toplis v.
Hurrell, 19 Beav. 423 ; and see Home v. Pringle, 8 C. & F. 288.
Upon the same principle, Lord Redesdale, putting the case of an executor
living in London, remitting money to his co-executor in Suffolk, to pay debts
owing there, observes, " He is considered to do this of necessity : he could
not transact business without trusting some persons, and it would be impos-
sible for him to discharge his duty if he is made responsible where he remit-
ted to a person to whom he would have given credit, and would in his own
business have remitted money in the same way :" Joy v. Campbell, 1 S. & L.
341 ; and see Chambers v. Minchin, 7 Ves. 193.
Nor will an executor be liable for the loss of a fund which he handed over
to his co-executor, if he had no legal right to retain it, (Davis v. Sjwrling,
lRuss. & My. 64;) nor if, having disclaimed and renounced, he applies it as
*-p Q -i the agent of the one who proved the will, (Dove v. Everard, *1 Russ.
E J & My. 231; Stacey v. Etyh, 1 My. & K. 195.) Secus, if he has
once acted : Doyle v. Blalce, 2 S. & L. 245.
In Churchill v. Lady Hobson, 1 P. "Wins. 241, Lord Harcourt took a distinc-
TOWNLEY V. SHERBORNE. — BRICE V. STOKES. 465
tion between the effect of a legatee and creditor seeking to charge an executor
joiuiug in a receipt with his co-executor, which, according to Lord Northing-
ton, seems to have this meaning, "that a creditor may at law charge both
executors on a joint receipt; but that in this Court, where alone legacies are
received, such receipt shall not be conclusive, but the Court will see who
actually received, and charge that person accordingly : Harden v. Parsons, 1
Eden, 148 ; but Lord Thurlow, in Sadler v. Eobbs, 2 Bro. C. C. 117, said
that it seemed to him an odd distinction. However, it seems to be admitted,
that, as legatees are bound by the terms of the will, and creditors are not, in
many cases executors would be discharged as against legatees, when they
would not as agaiust creditors; for example, in Doyle v. Blake, 2 S. & L. 281,
240, 245, where the testator appointed executors, and directed them to turn
all his property into cash, and deposit it with Martin Horan, Lord Redesdale
said, that, if the executors had collected the effects, and had paid the amount
to Martin Horan, still, if a creditor had remained unpaid, he might have
charged them, upon the insolvency of Horan ; whereas, in the case of a legatee,
the executors might justify themselves by the directions in the will.
The usual indemnity clause, in instruments where trusts are created, that
one trustee shall not be answerable or accountable for the acts, receipts, or
defaults of his co-trustees, does not, it seems, give any protection against the
acts of co-trustees, but merely expresses what a court of equity would hold,
in the absence of such clause. See Worrell v. Harford, 8 Ves. 8 ; Dawson v.
Clarke, 18 Ves. 251; Moyle v. Moyle, 2 Russ. & My. 170; Macdonnel v.
Harding, 7 Sim. 176; Clough v. Dixon, 8 Sim. 594; 3 My. & Cr. 490;
Munch v. Corker,//, 9 Sim. 389; 5 My. & Cr. 339.
Husband — how far liable for the devastavit of his wife, as executrix or
administratrix.] — In this place may be considered how far a husband, and
his wife being an executrix or administratrix, are liable for devastavits. The
husband will, it seems, be liable during coverture for any devastavit of his
wife. "When," says Lord Redesdale, in a celebrated case, "the husband of
a feme covert is charged with waste committed by her previous to the mar-
riage, the charge is simply by the rule of law, which throws upon the hus-
band, during the coverture, all the obligations of the wife ; and as he is charged
by the rule of law alone, the same *rule should also discharge him.
The debt of the wife before coverture shall not be recovered against L J
the husband after coverture, because he is answerable for it only in virtue of
the duty imposed on him to discharge all the obligations of the wife : this
in some cases is a little against conscience, but then, in other cases, the charg-
ing the husband with the debt would be against conscience also ; and, such
being the rule of law, courts of equity have held that they could not establish
any rule upon the difference whether the husband had or had not received a
portion with his wife, that should bind his conscience in one case more than
in the other :" Adair v. Shaw, 1 S. & L. 263 ; and see Kings v. Hilton, Cro.
Car. 603 ; Lumleij v. Button, 1 Roll. Rep. 268, 269 ; Bachelor v. Bean, 2
Vern. 61 ; but the husband would, upon taking out administration to his wife,
vol. in. — 30
466 LIABILITY OF TRUSTEES AND EXECUTORS.
in order to obtain possession of her choses in action, be liable under 80 Car.
2 c. 7 explained and made perpetual by 4 & 5 Will. & M. c. 34, s. 12.
If a devastavit is committed driving the coverture, the husband during the
life of his wife is liable both at law and in equity, as he will be presumed to
have authorized the dealings of his wife, (Adair v. Shaw, 1 S. & L. 266 ;
Smith v. Smith, 21 Beav. 385,) even though she may have been living sepa-
rate from him, (Paget v. Read, 1 Vern. 143 ;) and assets admitted by hus-
band and wife may be proved as a debt of the husband's on his bankruptcy :
Ex parte M' Williams, 1 S. & L. 173.
At law the liability of the husband, for a devastavit committed during, as
well as before coverture, unless a judgment has been obtained against him and
his wife, (Mounson v. Bourn, Cro. Car. 519 ; Baron v. Berkley, 1 Lutw. 670 ;
1 Saund. 216, a, note to WheaUey v. Lane,') or goods remain in his hands in
specie, when they maybe recovered by an action of trover or detinue, (1 S. &
L. 262,) entirely ceases at the wife's death, (Shaic v. Adair, 2 S. & L. 261.)
But in equity, the husband surviving the wife, will be liable for the assets
â– which came to his hands, upon the ground that all persons who come into
possession of property bound by a trust, with notice of the trust, will be affected
by it. See Lord Redesdale's able judgment in Shaw v. Adair, 1 S. & L.
247 where he held, that the assets of a deceased husband of an administratrix
were chargeable in equity for the waste committed during the coverture ; and
see Clough v. Bond, 3 My. & Cr. 490, stated ante, p. 741 ; and see Smith v.
Smith, 21 Beav. 385.
But, although the husband of an administratrix may have become liable to
make good to the next of kin of the intestate the assets received by himself
or his wife during the coverture, yet, *if the husband, at his death,
L '"^J makes his wife his executrix, and she possesses assets more than suffi-
cient to answer the demands of the next of kin, after paying the other debts,
the estate of the husband is discharged ; and, therefore, the next of kin can-
not sue an administrator cum testamento annexo of the husband : Tyler v.
Bell, 2 My. & Cr. 89.
If the wife survives the husband, — according to Lord Redesdale, even if
she were covert when administration was taken out, — she will be liable for
waste, even though it were the act of the husband, because, in the language
of the old cases, it was her folly to take a husband who should so misconduct
himself: Adair v. Shaw, 1 S. & L. 258. And an executrix in such position,
although only responsible at law to creditors, would, in equity, be responsible
to legatees. In Clough v. Dixon, 8 Sim. 598, however, Sir L. Shadwell, V. C,
says, " I do not think that the reasoning of Lord Bedesdale is satisfactory,
where he says, that a married woman, an executrix, would be responsible to
the creditors of the testator after coverture." But his Honor, according to
the distinction which has been taken, admitted, in a subsequent case, that
where a person was executrix or administratrix before marriage, and the assets
were wasted during the coverture, a creditor or legatee of the testator had a
right to sue the executrix or administratrix as well as her husband : Kvngham
TOWNLEY V. SHERBORNE. — BRICE V. STOKES. 467
v. Lee, 15 Sim. 401; and see the remarks of Sir R. T~. Kindersley, V. C, in
Vaughan v. Vanderstegen, 2 Drew. 885.
Acquiescence by cestui que trust in an improper investment.'] — Where a
cestui que trust sui juris, acquiesces in an improper investment, he cannot
afterwards call it in question, see Langford v. Gascoyne, 11 Ves. 833; Booth
v. Booth, 1 Beav. 125; Broadhurst v. Balguy, 1 Y. & C. C. C. 16; Nail v.
Punter, 5 Sim. 555; Walker v. Symonds, 3 Swanst. 64; Munch v. Cockerell,
5 My. & Cr. 178 ; Farrar v. Barraclough, 2 Sim. & Giff. 231 ; Baby v. Ride-
halgh, 7 De G., Mac. & G. 104. But it must be made with his full know-
ledge, (Montfort v. Lord Cadogan, 17 Ves. 489 ; Munch v. Cockerell, 5 My. &
Cr. 178 ;) and without any misrepresentation or concealment on the part of
the trustees, (Walker v. Symonds, 3 Swanst. 1; Underwood V. Stevens, 1
Mer. 712; Burrows v. Walls, 5 De G., Mac. & G. 233.) In such cases, the
cestui que trust will be primarily liable to make good any loss thereby occa-
sioned, (Booth v. Booth, 1 Beav. 125, 130; Fuller v. Knight, 6 Beav. 205.)
Where a cestui que trust discovers a breach of trust, but does not receive
any benefit from it, or connive at it for any purpose, and does not recognize
the transaction, *he is not precluded from complaining of it, merely
on the ground that he had abstained from making such complaint L ^
until long after he first knew of it : Phillipson v. Gatty, 7 Hare, 516.
Where persons are under disability, as infants or feme coverts, they will
not, except in the case where a feme covert is entitled to the fund to her
separate use, (Mant v. Leith, 15 Beav. 524,) be liable for any loss, even if
the improper investment by which it was occasioned was made upon their
earnest request, (Walker v. Symonds, 3 Swanst. 69; Ryder v. Bickerton, 8
Swanst. 80, n. ; Hopkins v. Myall, 2 Buss. & My. 86 ; Nail v. Punter, 5 Sim.
556 ; Kellaway v. Johnson, 5 Beav. 819 ; March v. Russell, 3 My. & Cr.
31,42.)
Where a married woman with an absolute power of appointment over pro-
perty settled to her separate use, having by her acts induced the trustees to lend
the fund on unauthorized security, whereby it was lost, and,, conceiving that
she was herself unable to maintain a suit to charge the trustees for the loss,
executed an appointment of the fund after it had been lost, in favor of her
infant children, Sir J. Stuart, V. C, dismissed, though without costs, a bill
filed by them for the purpose of charging the trustees. Brewer v. Swirles,
2 Sm. & Giff. 219.
A tenant for life who has obtained the benefit of a breach of trust may be
made responsible for it, upon a suit for that purpose instituted by the trustees :
M l Gachen v. Dew, 15 Beav. 84.
The acquiescence of a person entitled in remainder is not binding on him
during the continuance of a preceding interest : Bennett v. Colley, 5 Sim.
181 ; 2 My. & K. 225 ; sed vide Brown v. Cross, 14 Beav. 105, 112.
As to the punishment of trustees for fraudulent breaches of trust, see 20 &
21 Vict. c. 54.
468
LIABILITY OF TRUSTEES AND EXECUTORS.
Persons acting in a fiduciary capa-
city, as trustees or executors, stand in
the same position as it regards liabi-
lity for the property entrusted to their
care, with bailees and agents general-
ly and are only answerable for actual
or constructive negligence, or wilful
misconduct. They are not, therefore,
responsible for a loss, unless it has
been occasioned by their own wrong;
or when they are in default for not
having interfered to prevent it; Tay-
lor v. Benham, 5 Howard, 233.
It is well settled, that each of seve-
ral trustees or executors, is not bound
to take on himself the conduct of
every part of the trust ; and it seems
that the management of the whole
may be left to any one of the num-
ber; Ochiltree v. Wright, 1 Dev. &
Bat. Eq. 336; Ray v. Doughty, 4
Blackford, 115. This does not ex-
cuse the rest from exercising a gene-
ral care and supervision over the trust,
and intervening for its protection, if
there is anything in the conduct or
situation of the person who has it in
charge, of a nature to show that it
ought not to remain in his hands ;
Clark v. Clark, 8 Paige, 153 ; The
Estate of Mary Evans, 2 Ashmead,
470. But with this qualification, the
general principle that one trustee may
act for the rest, is undoubted ; Jones's
Appeal, 8 W. & S. 143. And, as
this may be done without default on
their part, they will not be answerable
for losses occasioned solely by subse-
quent misconduct on his, in the dis-
charge of the duties which he has
especially engaged to perform ; The
State v. Guilford, 18 Ohio, 500.
It is, notwithstanding, equally well
settled, that when two or more trus-
tees join in any act, each will be re-
sponsible for conducting it safely to
its termination ; and that neither can
excuse himself from liability for a
loss, by showing that it arose more
immediately from the default of his
associate, if it be one which greater