1 Richter v. Poppenhusen, 57 Barb. 309 (1870).
2 Marshall v. Broadhurst, 1 Cr. & J. 403; Edwards v. Grace, 2M.&W. 190; Dakin v. Cope, 2 Russ. 170; Garrett v. Noble, 6 Sim. 504; Siboni v. Kirkraan, 1 M. & W. 418.
3 2 Williams on Executors, pt. 4, B. 2, ch. 2, § 1, p. 1275; Toller on Executors, 487; Eden on Bank. 5.
4 Abbott v. Parfitt, Law R. 6 Q. B. 346 (1871), explaining Bolingbroke v. Kerr, Law R. 1 Exch. 222 (1866).
5 Powell v. Evans, 5 Ves. 843; Raphael v. Boehm, 13 Ves. 410; Tebbs v. Carpenter, 1 Madd. 298. See Moore's Estate, 1 Tuck. 41.
1 See Holmes v. Bridgman, 37 Vt. 28 (1864); Oglesby v. Howard, 43 Ala. 144.
2 Worseley v. De Mattos, 1 Burr. 475; 1 Story, Eq. Jur. § 422,424, and cases cited; Ewer v. Corbet, 2 P. Wms. 148; Went. Off. Executor, 302; Bac. Abr. Executors (L.) 1; Holland v. Prior, 1 Myl. & K. 240.
3 2 Black. Comm. 511; Rock v. Leighton, 1 Salk. 310; 1 Saund. 333 a, n. 8; Vernon v. Egmont, 1 BHgh (n. s.), 571; Hawkins v. Day, Ambl. 160; Harman v. Harman, 2 Show. 492.
4 Went. Off. Ex. 303; Cocke v. Jennor, Hob. 66; Brightman v. Keighley, Cro. Eliz. 43; Com. Dig. Adm'n (I.); Bac. Abr. Executors (L.) 1.
5 Com. Dig. Adm'n (I. 1); Vez v. Emery, 5 Ves. 141; Doyle v. Blake, 2 Sch. & Lef. 243; Giles v. Dyson, 1 Stark. 32.
6 Massey v. Banner, 1 Jac. & Walk. 243; Edwards v. Freeman, 2 P. Wms. 447; 1 Story, Eq. Jur. § 90, and case cited; Johnson v. Johnson, 3 Bos. & Pul. 162; Croft's Executors v. Lyndsey, 2 Freem. 1.
7 Crosse v. Smith, 7 East, 246; Johnson v. Johnson, 3 Bos. & Pul. 162, 169; Jones v. Lewis, 2 Ves. 240; Brown v. Litton, 1 P. Wms. 141; Webster v. Spencer, 3 B. & Al. 360; Clough v. Bond, 3 Myl. & Cr. 490. See post, § 377, note; State v. Meagher, 44 Mo. 356 (1869).
due caution.1 And even in law, if he should pay a simple contract debt, without notice of a specialty debt, he would not be liable in case of a deficiency of assets, unless he appear to have been wanting in diligence and caution.2 But in courts of equity he will always be protected under circumstances of hardship or injustice, where he has been guilty of no improper or negligent conduct.3
§ 367. It is considered in equity as a breach of trust for an executor to lend money belonging to the estate upon any personal security, such as a bond or promissory note, - for which he renders himself liable individually,4 unless the will directs him to do so, in which case he is bound to exercise a sound discretion in lending to a responsible person.6 But even then, executors cannot lend to each other,6 nor, apparently, will a loan avail against creditors.7
§ 368. Where there are two or more executors or administrators, one is not liable for the acts of the other, unless he have assented thereto, or have become involved therein and connected therewith by some act of his own.8 One executor is not, therefore, liable ordinarily for the assets which have come to the hands of his coexecutors,9 unless they have passed through his hands, and have been handed over to them by him without sufficient reason.1 But he cannot absolve himself from responsibility by paying over the assets to his coexecutors; he must show that they have been applied in conformity with the trusts of the will.2 So if one executor contribute in any way to enable his coexecutor to obtain assets, he is ordinarily liable.3 If, therefore, coexecutors agree with each other to divide their duties, and one to take charge of one part of the estate, and another of a different part, each will be responsible for the acts of the others.4 But where an executor places assets in the hands of his coexecutor, he will not be chargeable, if he would have been authorized from the position and character of the coexecutor, to have placed them in his hands had he been a mere stranger.5 Thus, if the coexecutor be a banker, in perfectly solvent circumstances, or have been the confidential agent and attorney of the testator, the executor would not be liable for money placed in his hands.1 Again, if one executor passively allow his coexecutor to take assets without doing any act to further it, he will not be liable, at least in equity, unless he were bound to interfere and prevent it.2 But if he know that the funds are misapplied, and he does not interfere to prevent the misappropriation, he would be liable.3
1 1 Story, Eq. Jur. § 90; Edwards v. Freeman, 2 P. Wms. 447; Johnson v. Johnson, 3 Bos. & Pul. 162, 169; Hawkins v. Day, Ambl. 160; Chamber-laine v. Chamberlaine, 2 Freem. 141. But see Coppin v. Coppin, 2 P. Wms. 296; Orr v. Kaines, 2 Ves. 194; Underwood v. Hatton, 5 Beav. 36.
2 Davles v. Monkhouse, Fitzgib. 76; Brooking v. Jennings, 1 Mod. 174; Britton v. Batthurst, 3 Lev. 115; Hawkins v. Day, Ambl. 160.
3 1 Story, Eq. Jur. § 90, and cases cited; Clough v. Bond, 3 Myl. & Cr. 490.
4 Terry v. Terry, Prec. Ch. 273; s. c. Gilb. 10; Ryder v. Bickerton, 3 Swanst. 80; Walker v. Symonds, 3 Swanst. 63; Vigrass v. Binfield, 3 Madd. 62; Holmes v. Dring, 2 Cox, 1. See Johnston v. Maples, 49 111. 101.
5 Forbes v. Ross, 2 Cox, 116. See Walls v. Grigsby, 42 Ala. 473.
6 Stickney v.. Sewell, 1 Myl. & Cr. 8; Gleadow v. Atkin, 2 Cr. & J. 548; ---------v. Walker, 5 Russ. 7.
7 Doyle v. Blake, 2 Sch. & Lef. 231.
8 Went. Off. Executor, 306; Anon., Dyer, 210 a; Hargthorpe v. Mil-forth, Cro. Eliz. 318; Langford v. Gascoyne, 11 Ves. 335.
9 Hargthorpe v. Milforth, Cro. Eliz. 318; Littlehales v. Gascoyne, 3 Bro. C. C. 74; Langford v. Gascoyne, 11 Ves. 335.
1 Edmonds v. Crenshaw, 14 Peters, 166; Townsend v. Barber, 1 Dick. 356; Davis v. Spurling, 1 Russ. & Myl. 66; Shipbrook v. Hinchinbrook, 11 Ves. 254; 2 Story, Eq. Jur. § 1280 a.
2 Edmonds v. Crenshaw, 14 Peters, 166. In this case, Mr. Justice M'Lean, delivering the opinion of the court, said: "Where there are two executors in a will, it is clear that each has a right to receive the debts due to the estate, and all other assets, which shall come into his hands; and he is responsible for the assets he receives. This responsibility results from the right to receive, and the nature of the trust; and how can he discharge himself from this responsibility ? In this case the defendant has attempted to discharge himself from responsibility by paying over the assets received by him to his coexecutor. But such payment cannot discharge him. Having received the assets in his capacity of executor, he is bound to account for the same; and he must show that he has made the investment required by the will, or in some other mode, and, in conformity with the trust, has applied the funds. One executor, having received funds, cannot exonerate himself, and shift the trust to his coexecutor, by paying over to him the sums received. Each executor has a right to receive the debts due to the estate and discharge the debtors; but this rule does not apply as between the executors. They stand upon equal ground, having equal rights, and the same responsibilities. They are not liable to each other, but each is liable to the cestui que trust, to the full extent of the funds he receives. Douglass v. Satterlee, 11 Johns. 16; Fairfax's Executors v. Fairfax, 5 Cranch, 19."