Bank v. Donaldson , 7 Watts & Serg. 407 ( 1844 )

The opinion of the Court was delivered by

Sergeant, J.

We are of opinion that there is no error in the decision of the court below that the legacies were a charge upon the lands, and payable in the manner pointed out by them.

But we are of opinion that the court erred in that part of the charge which relates to the legacy claimed by William Donaldson, and his transactions with John H. Cowden in taking from him the property and assets of the estate. The court ought to have charged the jury expressly that these transactions constituted a devastavit on the part of the executor, to which William Donaldson was a party, and that therefore he cannot be allowed thus to carry off the property of the estate for a nominal consideration, or for things of little or no value; but equity will follow them into his hands, and make him restore them, when the executor becomes insolvent, and creditors, legatees and persons interested are likely to suffer by it. Were the matter between the executor, J. H. Cowden, and William Donaldson alone, it might be all well enough; but when others are likely to suffer by it, the case is very different. The rule on the subject is stated in 4 Madd. Rep, 357, cited 1 Story’s Equity, that every person who acquires personal property by a breach of trust or devastavit by the executors, is responsible to those who are entitled under the will, if he is a party to the breach. So it is laid down in Ram on Assets 489, and supported by numerous authorities, that it is a cause of interference in equity if there is some fraud or collusion between the executor and alienee, as if the alienee is a party consenting to and contriving a devastavit, or if, in the case of a sale, it is made at a nominal price or fraudulent undervalue. That such was the case here, the evidence seems to leave no room to question, in regard as well to the note to Donaldson alone, as to Colt and Donaldson, which was a debt of Donaldson by the partnership arrangements, and which Colt could not settle otherwise than for him; and also to the judgments assigned, all of them for notes or stock of little or no value. And the estate being now insolvent, and these assets required, the creditors, legatees and others interested have a right to pursue them.

We are of opinion that the court below erred in not instructing the jury, that if the amount of the assets thus transferred exceeded the amount due on the legacy, they were a bar to it, and that the plaintiff could not recover.

Judgment reversed, and venire facias de novo awarded.

In the other cases, viz., Same v. Bradford, Same v. Same, and Same v. Barnitz and wife,

Judgment affirmed.