3 Langford v. Gascoyne, 11 Ves. 335; Shipbrook v. Hinchinbrook, 11 Yes, 254; 16 Ves. 477. See Daly's Estate, 1 Tuck. 95 (1867).
4 Gill v. Attorney-General, Hardr. 314; Lees v. Sanderson, 4 Sim. 28; Shipbrook v. Hinchinbrook, 11 Ves. 252; s. c. 16 Ves. 477.
5 Churchill v. Hobson, 1 P. Wms. 241; Chambers v. Minchin, 7 Ves. 198. See Kincade v. Conley, 64 N. C. 387.
1 Chambers v. Minchin, 7 Ves. 198; Bacon v. Bacon, 5 Ves. 331.
2 Langford v. Gascoyne, 11 Ves. 335; Joy v. Campbell, 1 Sch. & Lef. 341; Hovey v. Blakeman, 4 Ves. 596. But the rule would seem to be different at law. See Crosse v. Smith, 7 East, 246.
3 Williams v. Nixon, 2 Beav. 472. In this case, Lord Langdale said: "There can be no doubt that, if an executor knows that the moneys received by his coexecutor are not applied according to the trusts of the will, and stands by and acquiesces in it, without doing any thing on his part to procure the due execution of the trusts, he will, in respect of that negligence, be himself charged with the loss; but in cases of this kind it is always to be observed that the testator himself, having invested certain persons with the character of executors, has trusted them to the extent to which the law allows them to act as executors; and in that character each has a separate right of receiving and giving discharges for the property of the testator. In this particular case, the testator, having money in the funds, and other property to a considerable amount, directed certain annuities to be paid, and bequeathed his residuary estate in the mode stated. Both executors proved the will, and thereupon each of them became entitled to receive the property. One of them did receive the property, -the dividends upon the stocks and funds, and the other personal estate. If Mr. Nixon knew that his coexecutor was misapplying the moneys thus received, and acquiesced in it, he became himself liable; because he was a witness and an acquiescing party to the misapplication, or breach of trust; but if he was not aware of the misapplication, I know of no case in which the court has gone the length of saying that an executor shall be held personally answerable for standing by and permitting his coexecutor to do that which, for any thing he knows to the contrary, was a performance of the trusts of the will. In this case it is clear Mr. Nixon must have known there was stock in the funds. He might have known that the dividends arising from that stock were, from time to time, received by Mr. Mills; knowing that he might, nevertheless, have full reason to believe that they were duly applied according to the trusts and directions of the will, in satisfaction of the annuities, or of the rent of the leasehold estate possessed by the testator at his death, and which was payable out of the whole estate. The argument for the plaintiff proceeds upon this, that you are to impute to Mr. Nixon a knowledge of all that he might have known. It is said he proved the will, and must therefore have known its contents, and what was to be done in pursuance of the trusts; this is a
§ 369. Where two executors have joined in signing a receipt, both will be liable thereon. But a distinction has been repeatedly made in favor of cases where the signing by one was merely a matter of form, he having no control over the money, or the money having been received beforehand by the other; and it would, therefore, seem, though this is by no means without doubt, that the question which tests the liability of an executor who has joined his coexecutor in a receipt, is, whether he gave the receipt as a mere form, or whether he had control over the money; in the former case he would not be liable, in the latter case he would be liable.1 The cases are, however, in this respect, very contradictory, and the later cases have adhered to the strictest rule in considering receipts.2 presumption which I think the law itself will draw, and he must therefore be taken to have known the contents of the will; then it is argued that, on proving the will, he was bound to make a statement upon oath respecting the value of the property, and therefore became acquainted with the particulars. He might have had some knowledge of it to the limited extent which can be known on such occasions; but I cannot impute to him a knowledge of the exact state or amount of the property or of the claims upon it, or the clear amount of the balance in the hands of his coexecutor. I certainly do not recollect any case in which the principle has been carried to the extent to which it has been here pressed; and if, in this case, I were to charge Mr. Nixon generally with all the assets received by his coexecutor, I must, in every other case, say that an executor who does not personally act, and who, having no reason to suspect any misapplication by his coexecutor, permits him to act alone, is liable for every misapplication committed by his coexecutor; I do not think I can lay down any such rule." Clark v. Clark, 8 Paige, 152.
1 See Churchill v. Hobson, 1 P. Wms. 243; Westley v. Clarke, 1 Eden, 357; Hovey v. Blakeman, 4 Ves. 608; Scurfield v. Howes, 3 Bro. C. C. 95; Joy v. Campbell, 1 Sch. & Lef. 341; Doyle v. Blake, 2 Sch. & Lef. 242; Walker v. Symonds, 3 Swanst. 64; Sadler v. Hobbs, 2 Bro. C. C. 117; 2 Story, Eq. Jur. § 1281. See Black's Estate, 1 Tuck. 145.
2 Sadler v. Hobbs, 2 Bro. C. C. 114; Scurfield v. Howes, 3 Bro. C. C. 94; Chambers v. Minchin, 7 Ves. 197; Brice v. Stokes, 11 Ves. 324; Moses v. Levi, 3 Younge & Coll. 359; Shipbrook v. Hinchinbrook, 16 Ves. 477. But see Monell v. Monell, 5 Johns. Ch. 283; in which Chancellor Kent does not seem to admit any distinction between executors and trustees in respect to their receipts. So in Westley v. Clarke, 1 Eden, 357, the strict doctrine was strongly assailed by Lord Northington, and in Hovey v. Blakeman, 4 Ves. 607, Lord Alvanley contended against the conclusiveness of the rule, although he admitted it. But it is said by Mr. Justice Story (2 Eq. Jur. § 1281, note) to be "now established by what must be deemed overruling authority." See also Manahan v. Gibbons, 19 Johns. 427; Sutherland v. Brush, 7 Johns. Ch. 22, 23. See post, Receipts.