mission of one per cent, only on the proceeds of the real estate,
mstead of a commission of two and a half per cent

The Circuit Court reversed the decree of the Orphans' Court
170



Feb. 11, 1833.] OF PENNSYLVANIA. 153

[Case of M'Nair's appeal.]

as to the first and second exceptions, and affirmed it as to the
rest. An appeal was then taken to the Supreme Court on be-
half of Ann Craven and Hugh Long.

Rittera for the appellants, cited Gordon's Law of Decedents,
264 ; 2 Br. Ch. Rep. 156 ; 1 Chitty's Eq. Dig. 401 ; 5 Yes. 844 ;
6 Madd. 13.

*Rawle, Jr., for the appellees, cited Konigmacher v. i-.,.-. ,..,-
Kimmel, 1 Penn. Rep. 207 ; King v. Morrison, Ib. L
188 ; Bonsall's Appeal, 1 Rawle, 266 ; Osgood v. Franklin, 2
John. Ch. Rep. 80 ; Thompson v. Brown, 4 John. Ch. Rep. 619,
626, 627 ; 1 Hopk. Ch. Rep. 233 ; Geddis v. Hawk, 10 Serg. &
Rawle, 33; Besore v. Potter, 12 Serg. & Rawle, 154; Bishop
v. Church, 2 Ves. 101, 371 ; Weaver v. Shryork, 6 Serg. &
Rawle, 265, 266 ; Moser v. Libenguth, 2 Rawle, 428.

The opinion of the court was delivered by

KENNEDY, J. It is proper to observe, that the contest in this
case is between the executors and legatees, and not with the
creditors of the testator. And although Lord Thurlow, in Sad-
dler v. Hobbs, 2 Bro. Ch. Rep. 117, seemed to think it an odd
distinction that a creditor should have a right to charge an ex-
ecutor when legatees should not, and Mr. Toller, iu his treatise
on the Law of Executors and Administrators, 484, has said, that
it appeared to rest on no authority, its existence is recognised in
2 Foub. 8384, and acted upon in several cases. In Gibbs v.
Herring, Pre. Ch. 49, the distinction is taken, and the decision
of the case professes to be founded upon it. The court say,
" the executrix shall not make it good to the plaintiffs who were
to have a share of the estate by the custom of the province of
York, but against a creditor she should." In Churchhill v. Lad)
Hob^ou, 1 P. Wms. 243, the distinction is expressly taken by
Lord Chancellor Harcourt, and given by him as the reason and
ground of his decision in that case. Lord Northington in West-
ley v. Clark, 1 Eden, 357, s. c. in note in 1 P. Wms., 83, if he
does not sustain the distinction, decided that two executors who
joined a third in giving a receipt for money received by him
alone, should not be liable to the legatees for it, which is directly
contrary to what Lord Thurlow considered was the rule as to
executors. And in Bacon v. Bacon, 5 Ves. 331, an executor
who lived in town gave twelve hundred pounds to his co-executor
to pay a list of debts made out and represented by the co-exec-
utor to be owing by the testator in the country, where he re-
sided at the time of his death, was discharged from a loss of
more than four hundred pounds of the money, arising from the

171



154 SUPREME COURT [Philadelphia,

[Case of M'Nair's appeal.]

misapplication and insolvency of the co-executor. It appeared
there, that the co-executor lived in the country, where he said
the debts were owing, and where in fact debts of considerable
amount were known to exist by the executor giving the money;
that the co-executor had been the confidential agent and attorney
of the testator in his lifetime for many years, and had been in-
trusted with the receipt and payment of large sums of money
by him. And as a direct and binding authority upon this court,
we have the decision of it made as early as 1788, in the case of
Brown's Appeal, 1 Dall. 311, where one executor, w 7 ho had re-
ceived money belonging to the estate of the testator, and paid it
l~*1 ^1 over * h* s co-executor, who became insolvent, *was
J held not to be answerable to legatees, although, as the
court say, he would have been chargeable to creditors, if there
had been any.

In the case of Gibbs v. Herring, it appeared that the testator
in his lifetime had intrusted J. S. with several sums of money,
to dispose of at interest for him, and died while part of it was
still in his hands undisposed of. The executrix, however, in-
stead of taking the money out of the hands of J. S., directed
him to put it out at interest, which he accordingly did, on secur-
ity that proved deficient, and yet she was held not liable for the
loss of it to the legatees. The resemblance of this case to the
one under consideration is, as it appears to me, very striking.
The confidence of the testator in the goodness of his security for
the debt due upon the bond, with the accruing interest, show r n
in the one case by his refusing to receive the principal, saying
he " did not wish it paid during his life, the interest was all that
he required," is fully equivalent to the confidence of the testa-
tor evinced in the other case, in the integrity and responsibility
of J. S., by intrusting and leaving his money in his hands to be
put to interest on such security as he might think good. Beside,
executors have always been permitted to exercise their discre-
tion upon such subjects; for Lord-keeper ITarcourt in Brown v.
Litton, 1 P. Wms. 141, lays it down, that where an executor
puts out money, though without the indemnity of a decree,
upon a real security which there was no reason for them to sus-
pect, but afterwards such security proves bad, he is not account-
. able for the loss.

Lord Redesdale, who was disposed to hold a pretty tight rein
upon executors, was unwilling to lay down the rule positively
that there was no case where the strictness of the law would
charge a man as executor as to creditors, in which a court of
equity would not charge him also as to legatees. " Legatees,"
he said, " were bound by the terms of the will ; creditors were
not so; and therefore in many cases executors would be dis-
172



l, 1833.] OF PENNSYLVANIA. 155

[Case of M'Nair's appeal.]

charged as against legatees, though not as against creditors."
2 Schoales & Lef. 239.

An opinion seems to have prevailed at one time, and perhaps,
with some at almost all times, that it was an inflexible rule to
charge executors jointly with all moneys for which they had
given joint receipts, upon the ground, that it was unnecessary
for them to join in such receipts unless they intended that they
should be charged jointly, that is, to be responsible for each
other j but in the case of trustees, the one who actually re-
ceived the money was alone to be charged, although all had
joined in giving the receipt, because it was necessary that all
should unite in the execution of the trust where it was joint.
Lord Eldon thought this a very intelligible rule, but admits that
it had been broken down by decisions, in which the rule that
every case was to be determined upon its own circumstances, was
adopted; whether it was wise to do so, he however thought
might be reasonably doubted. 16 Ves. 479.

Here we have the admission of an advocate of this first rule,
as he seemed to think it was, that its inflexibility no longer
exists, but *has yielded to another rule, that every case r^-. - fi -i
must be decided upon its own peculiar circumstances. L
Indeed it may perhaps be somewhat doubtful which of these rules
was first established, for Gibbs v. Herring, in which the latter is
adopted and applied, is one of the earliest reported cases that
we have on this subject. The former is undoubtedly, as Lord
Eldon observes, a very intelligible rule, and one too that would
probably in most eases be of easy application, but the reason-
ableness of it may be very questionable. I confess that I am
unable to persuade myself that the reason assigned for making
executors responsible for moneys which they never received,
merely because they joined with a co-executor who had received
it, in signing a receipt, is in any way sufficient, or that it is true
*hi point of fact. I do not believe that in doing so, they ever
think of making themselves answerable for the money where it
has been received by their" co-executor. On the contrary, I
believe that it is done, either because they conceive it to be their
duty to do so, as in the case of joint trustees, or do it from a
desire to satisfy the payer of the money, who may- not think he
has got a good acquittance or discharge from his obligation unless
signed by all the executors. I do not mean to say, that any one
who is a lawyer could ever have thought so, but then it must be
recollected that every one who has to pay money to executors
is not a lawyer, nor is every executor himself one; and it must
also be observed that it is not very easy to discriminate between
the office of an executor and the office of an administrator, and
yet there was a time when lawyers, and judges too, thought it

173



156 SUPREME COURT [Philadelphia,

[Case of M'Nair's appeal.]

necessary that co-administrators should join in all acts to be
done by them in their official character, as in giving a release,
&c., because as it was said, administration was in the nature of
an office, and "if an office were granted to two, they must join
in executing the act of the office." Hudson v. Hudson, 1 Atk.
461, Of this, however, the author of the Touchstone made
a quere. Shep. Touch. 4845 ; and since that, the distinction
has been repudiated. Jacornb v. Harwood, 2 "Ves. 267-8, and
Willard v Fenn, there cited by the Master of the Rolls. But
then, as long as this distinction prevailed between executors
and administrators, there was precisely the same reason for
applying the same rule to administrators that was always and
uniformly held to be applicable to trustees, in giving receipts
for money. Since we find then, that at different times differ-
ent opinions have been entertained, even by those learned in
law, as to the necessity of all the personal representatives of a
deceased person joining in a release, receipt, or other act, in
the course of their administration, would it not be very unrea-
sonable to make executors, who may be quite unlearned in the
quiddities of the law on this point, responsible for moneys
received by a co-executor, merely because they had unneces-
sarily joined with him in giving a receipt for it? It is at
most but a mere supererogatory, or perhaps, more properly,
nugatory act, that can produce no possible injury to any one,
and therefore ought not to be made the basis of a claim,
p*, p-y-i The understanding *and intention of the parties to the
J transaction, ought to be looked to, and, if innocent,
ought to make the law of the case. And when a party requires
a receipt to be signed by all the executors or all the administra-
tors, when he has paid the money only to one of them, why
should he not have it, if they are Mailing to give it, without their
incurring the risk of paying a penalty for doing so ? I repeat
again, that I cannot believe that such receipt is ever signed by
those who did not participate in the receipt of the money with a
view to guaranty either the honesty or solvency of the receiver.
They receive no consideration, and have no motive whatever for
doing so. And after the money has been so received, what good
can it do to those interested in the estate, for the other execu-
tors to refuse signing the receipt? None whatever; while, on
the other hand, their signing the receipt can work no possible
injury to either creditors, legatees, or distributees, and certainly
puts nothing into the pockets of the non-receiving executors or
administrators. Would it not then be most unconscionable to
make them accountable for money which they never received,
and from which they never derived any benefit whatever ; and
in respect to which they had done nothing to prejudice the right
174



J.ll,l33.] OF PENNSYLVANIA. 157

[Case of M'Nair's appeal.]

of any one, or in the slightest degree to hinder or delay his
claim ? But, if it be said, that it is not on the ground of inten-
tion that they are to be made liable by joining in the receipt,
but because they have done an unnecessary act, one which the
law did not require them to do, because the receipt of the one
who was the receiver was a sufficient discharge in law, the in-
sufficiency, if not the absurdity, of such a proposition has been
already made manifest. It would not only be inequitable and
unjust, but repugnant to the whole tenor of the common law, to
make a man liable to pay money who had never either expressly
or impliedly undertaken to do so ; who had violated no law,
and done no act that could injure the right of any one or yield
the least possible advantage to himself.

From this view of the subject I am induced to believe that
there is no good reason for making executors or administrators
liable more than trustees for moneys which they have never
actually received, merely because they have joined in a receipt
with the co-executor or co-administrator who did receive it.
The receipt when proved, must always be considered prima
fade evidence against each of the signers that he received the
money ; and if he wishes to avoid the consequent liability, it
will lie upon him to prove who did receive it, and that it was
not received by him.

The distinction which has been taken in some cases, and men-
tioned in others, for executors being liable to creditors and not
to legatees, for losses in the estate, is not without reason, or at
least the appearance of it. The creditors of the testator have
claims upon his estate, which he cannot defeat or set aside ; nor
can he give any latitude of discretion whatever to his executors
that will prejudice his creditors, in applying his estate to the
payment of them. The law lays down the rule here by which
the executors respectively are *to govern themselves, p.,,, r ^-i
But after his debts are paid out of the estate, the testator *-
can dispose of the residue as he pleases, and prescribe the course
that the executors shall pursue in the administration of it. In
short, his will, so far as it can be discovered, may be considered
their guide and protection : and hence, as long as the executors
shall manage this part of the estate in accordance with the ideas
and notions which the testator himself entertained of it, and have
done nothing but what there is reason to believe he would have
approved, could he have been consulted, it would seem to be un-
reasonable to make them responsible for losses attending it. This
principle has been adopted in several of the cases already referred
to, and is directly applicable to the one before us. It is evident
that the testator in his lifetime considered the bond of George
and John Shelmire perfectly good ; and I think I may say ex-

175



158 SUPREME COURT [Philadelphia,

[Case of M'Nair's appeal.]

elusively so, upon the sole responsibility of John : for in 1813,
three years after this bond had been given, and after it had be-
come payable, there was a meeting of George's creditors, about
receiving payment of their debts, as it is said, which would seem
to indicate the doubtful circumstances of George at that time,
yet the testator declined receiving the amount of his bond, stating
that he did not want it in his lifetime. He was content with re-
ceiving the interest upon it, which was paid to him annually until
his death in 1816. By his will he, among other tilings, directed
that two of his executors, John and Samuel M'Nair, two of his
sons, should put out to interest for the use of their sister Re-
becca, twenty-six hundred and sixty-seven dollars of his estate
"on land security, or otherwise render it safe and productive,
and pay the proceeds thereof, from time to time, (as they in their
wisdom should judge most for her benefit,") to her during her
natural life. The interest upon the Shelmire bond, was paid to
the executors for the year 1817, and perhaps 1818. George S.
Shelmire removed from this state to that of New York, in
March, 1817, in less than a year after the death of the testator,
when he was considered insolvent. In April, 1818, John Shel-
mire, the other obligor, died, leaving a large estate, but it
turned out afterwards upon a suit brought to recover the
amount, against his executors, who refused to pay the bond,
that it was adjudged to be joint and not several, and there-
fore the executors of Samuel M'Nair were held not entitled
to recover upon it against the estate of John, as George sur-
vived him. Among gentlemen of the bar, there was a diver-
sity of opinion whether the bond, taken in connection with its
condition, and judging from the face of the whole, was not
several. It does not appear that the testator in his lifetime,
or his executors after his decease, ever had the least idea that
it was any other than a bond in common form, such as would
be binding upon both, or either, and that the death of one
could not relieve his estate from the payment of it. Resting
secure under this conception of the nature of the bond, the great
wealth of John Shelmire, one of the obligors, afforded the
most perfect assurance of the payment of its amount being
f*1 ^Ql *" rendered safe and productive" according to the
J words of the will. Indeed it is not pretended that the
bond of any other man in the country could have made it more
so. Is it likely then that the testator, had he continued to live
during the life of John Shelmire, wanting only the interest on
the bond, and receiving that as called for, would have pressed, or
even asked for the payment of the principal-? He was content
to let it rest in this way during his life, considering it perfectly
" safe and productive :" and it does not appear that there was
176



M. 11, 1833.] OF PENNSYLVANIA. 159

[Case of M'Nair's appeal.]

any change in the circumstances of the obligors, after the death
of the testator, as long as John Shelmire continued to live. It
may therefore be reasonably inferred, that had he lived until the
death of John Shelmire, he would have done as his executors
have. Taking therefore the conduct of the testator himself, to-
gether with the directions contained in his will, as the rule for the
executors to go by, I think it would be too severe to make them
answerable for the loss of the amount of the Shelmire bond.

The circumstance of one of the legatees having offered to take
this bond,, which has been so much relied on to make the execu-
tors responsible for the loss of it, is perhaps quite as much in
their favour as against them. For if it was offered to be taken
as so much cash, as has been suggested, in discharge of the leg-
acy pro tanto, it goes to show that such legatee thought it in-
disputably good, and furnishes strong evidence to sustain the
integrity and purity of intention of the executors, and that all
were deceived in the opinion which they entertained of the bond,
and the nature of it, as to its binding efficacy ; and likewise
tends to render it probable, that John, one of the executors who
is said to have objected to parting with the bond in that way,
might have thought that it would perhaps answer to form a part
of the fund which they, according to the directions of the will,
were to establish for the benefit of their sister Rebecca, as it
was then yielding interest on its amount daily, and seemed to
be thought by all concerned in the estate, safely secured.

When it was, that Craven, one of the legatees, offered to take
the Shelmire bond as part of the estate of the testator, does not
precisely appear, but it is said to have been about a year after
the death of the testator, and certainly before the death of John
Shelmire. In what way or upon what terms and conditions this
bond was offered to be taken, does not distinctly appear. The
conversation about it, seems to have taken place at a meeting of
the executors and legatees, held for the purpose of making some
arrangements for the distribution of the estate according to the
directions of the will ; but whether any distribution was then
made, or when it was made, is not shown. It is most likely that
no final and positive distribution was then made, for from some
of the testimony it would seem probable that the executors in-
terposed an objection at some time, which may have been then,
that no refunding bonds were offered. It does however appear
that a bond which was held by the testator at the time of his
death and came to the hands of his executors, upon a certain
James Allison *was taken by one of the legatees, but r*in/yi
not being able to make it answer his purpose, it was re- L
turned, and the legatee finally not charged with it, which shows
that this bond though taken, was only taken conditionally. In

VOL. iv. 12 177



160 SUPREME COURT [Philadelphia

[Case of M'Nair's appeal.]

short, the testimony in respect to all this matter is very vague
and unsatisfactory, and in my opinion not sufficient to warrant
a decision that there ever was any final distribution and appro-
priation of the amount of the Shelmire bond to the fund of
twenty-six hundred and sixty-seven dollars, which was to be set
apart for Rebecca's use during her life, and I therefore think,
that the loss of it ought not to fall upon the trustees of Rebecca,
nor yet upon Rebecca herself, and those who after her death are
to succeed to this fund.

And although some of the legatees might have been willing at
one time to have taken the Shelmire bond as cash, there is no
reason to believe that it was because the executors did not re-
quire payment of it from the obligors. None of them ever com-
plained of the executors that they were neglecting their duty in
this respect. Indeed, it would rather seem that the legatees
were not solicitous about collecting the moneys due to the estate
if well secured ; and that the executors were not Mailing to give
indulgence, in some cases at least, without the consent of the
legatees ; for all this appears to have been the case with respect
to the debt due upon the bond against the estate of James Alli-
son, which was outstanding at the time the executors stated
their account ; and the delay in the collection of it is stated and
admitted to have taken place with the assent and approbation of
the legatees. When we look at all these things, and take them
into our consideration, it is difficult to resist the conviction, that
the course pursued by the executors until after the death of
John Shelmire, created no dissatisfaction with any of the lega-
tees and those concerned in interest in the estate ; but on the
contrary, was adopted, in part at least, by the former because
it met the approbation of the latter.

The executors were not to blame for refusing to take the judg-
ment bond and mortgage proposed to be given by George S.
Shelmire, for the bond which had been given by himself and his
father John Shelmire, for it has not been shown that he had any
title for the land that he offered to give a mortgage on ; nor that
it was of any value : as to his judgment bond, that would have
been worthless, unless it were shown that he had property of
some value. But the testimony rather goes to prove that he was
insolvent before he left this state, and at the time of leaving it
in 1817, and that finally he was compelled to seek relief from
the insolvent laws of New York state.

Beside, it must be recollected too, that at the time this offer
was made by George, the executors believed that the estate of
John Shelmire was liable for the payment of the bond, so that
to have acceded to the proposal of George, would have been to
give up what they considered a good securitv for the debt, for
178



Feb. 11,1833.] OF PENNSYLVANIA. 160

[Case of M'Nair's appeal.]

one that they knew nothing about, which would have been cer-
tainly culpable.

*I think it reasonable that the executors should be al- p^.. fil -,
lowed for the costs and expenses incurred in prosecuting L
the several suits upon the Shelraire bond, for they, in truth,
appear to have acted with good faith through the whole of this
business, and it would be wrong, under all the particular circum-
stances of this case, that they should be made to bear the losses
attending it.

The decree of the Circuit Court is affirmed.

Ross, J. I am clearly of opinion, the executors rendered
themselves liable by their gross neglect in not securing the
money due from Shelmire when it was perfectly within their
power to have done so. Their refusal to give the bond to one of
the legatees, who was desirous of taking it in payment of her
legacy, and insisting on keeping it themselves was not justified
by any circumstance which has appeared in evidence. By such
refusal the executors rendered themselves responsible for the pay-
ment thereof. No case has been cited which bears the slightest
resemblance to the one under consideration. The case of a