Of course the representative, who, even bonâ fide, pays legacies without protection of a court order, is liable to creditors for a devastavit, if the assets later prove insufficient to meet their demands.12 Do the creditors also have a direct right against the legatees who have received more than their equitable share? This liability of beneficiaries was early settled in the English law.122 And it is not necessary to-day to join the personal representative.123 Furthermore the right of the creditor is inferentially recognized in Lord St. Leonard's Act (1859).124 In the United States the right of the belated creditor to proceed directly against the legatee or distributee is clearly settled, unless as in Illinois the statute of presentment in terms or by construction bars him.125 There is clearly a right in equity, as many of the foregoing decisions show. The suit was at law in McClure v. Dee, supra; Rohrbaugh v. Hamblin, supra; Johnson v. Libby, supra; South Milwaukee Co. v. Murphy, supra. An action at law was denied in Hendricks v. Keeser 120

The right of the creditor to proceed directly against the benefi

v. Franco, 3 Ves. Jr. 75 (1796); Greenwood v. Wakeford, 1 Beav. 576 (1839); Robinson v. Evans, 7 Jur. 738 (1843); Baynard v. Woolley, 20 Beav. 583 (1855); Carson v. Sloane, L. R. 13 Ir. 139 (1884); Zimmerman v. Kinkle, 108 N. Y. 282, 15 N. E. 407 (1888); Abbott v. Reeves, 49 Pa. 494 (1865); Mansfield v. Wardlow, 91 S. W. 859 (Tex. Civ. App.) (1905).

121

2 WILLIAMS, EXECUTORS, 10 ed., 1078, 1436; Knatchbull v. Fearnhead, 3 Myl. & Cr. 122 (1837); Clegg v. Rowland, L. R. 3 Eq. 368 (1866).

122 Anon., I Vern. 162 (1683); Hodges v. Waddington, 2 Vent. 360 (1795); Gillespie v. Alexander, 3 Russ. Ch. 130, 136, 137 (1826); March v. Russell, 3 Myl. & Cr. 31 (1837); In re Eustace, [1912] 1 Ch. 561.

123 Hunter v. Young, 4 Exch. D. 256 (1879).

124 STAT. 22 & 23 VICT., c. 35, § 29.

125 Hall v. Brewer, 40 Ark. 433 (1883); Gibson v. Mitchell, 16 Fla. 519 (1878); Blair v. Allen, 55 Ind. 409 (1876); Stevens v. Tucker, 87 Ind. 109 (1882); Security Fire Ins. Co. v. Hansen, 104 Iowa, 264, 73 N. W. 596 (1897); McClure v. Dee, 115 Iowa, 546, 88 N. W. 1093 (1902); Rohrbaugh v. Hamblin, 57 Kan. 393, 46 Pac. 705 (1896); Johnson v. Libby, 111 Me. 204, 88 Atl. 647 (1913); Forbes v. Harrington, 171 Mass. 386, 50 N. E. 641 (1898); Hantzch v. Massolt, 61 Minn. 361, 63 N. W. 1069 (1895); Walker v. Deaver, 79 Mo. 664 (1883); Hall v. Martin, 46 N. H. 337 (1865); Chitty v. Gillett, 46 Okla. 724, 148 Pac. 1048 (1915); South Milwaukee Co. v. Murphy, 112 Wis. 614, 88 N. W. 583 (1908).

In some states the right of the creditor is recognized by statute, see ALabama, CODE (1907), § 2785; INDIANA, ANNOT. STATS. (1914), §§ 2831-32; MASSACHUSETTS, REV. Laws (1902), c. 135, § 27; Acts (1914), c. 699; MICHIGAN, COMP. LAWS (1915), c. 234, c. 56, § 20; NEBRASKA, REV. STATS. (1913), § 1409; OHIO, ANNOT. GEN. Code, §§ 10748, 10877-883; RHODE ISLAND, GEN. LAWS (1909), c. 318, §§ 19-25; VERMONT, PUB. STATS. (1906), c. 137, § 2915; WISCONSIN, STATS. (1915), § 3861.

ciary seems entirely defensible both at law or in equity, despite his alternative right to hold the personal representative for a devastavit.127 The legatee holds without consideration what is equitably due the creditor; he is unjustly enriched at the latter's expense. This right, too, should be the only way of enforcing the interest of the creditor. To allow the personal representative to recover for the person best entitled and a second action by the latter against the representative is circuitous. The executor's or administrator's right should exist only when he has been obliged to make the creditor whole, and is, therefore, the real party in interest. And when he is the real party in interest the representative should secure a refund, unless, indeed, he has paid with conscious disregard of a claim due and payable or reasonably sure to become payable. No equitable or quasi-contractual principle allows recovery where such a flagrant violation of duty occurs. So far as his interest is concerned he has made in effect a pure gift, though of course this cannot prejudice the creditor's direct right against the overpaid beneficiary. Yet if the plaintiff has been merely negligent, he should recover both in equity and at law. The defendant has something for which he has paid nothing, and which after the plaintiff has been mulcted by the creditor for devastavit equitably belongs to the representative. If the creditor's right is unknown to the personal representative at the time of payment, the situation is analogous to those cases where money paid under a mistake of a present existing fact may be recovered.128 If payment is made when the existence of a contingent claim is known, but is thought too doubtful of maturity to be regarded, the creditor should nevertheless recover. It is as inequitable for the beneficiary to keep the money when he has received it under an erroneous impression as to the future, as where a mutual mistake as to the present has induced the payment.129 The liability at law is in the common

127 See the analogous case of cestui que trust's remedy against donee of trust res. PERRY, TRUSTS, 6 ed., §§ 217, 225, 346, 828; AMES, LECTURES ON LEGAL HISTORY, 255; 27 COL. L. REV. 283.

128 KEENER, QUASI CONTRACTS, C. 2.

129 Compare cases where one party has been allowed to recover money paid under a contract in return for a promise which the other party has wholly failed to perform. Towers v. Barrett, 1 T. R. 133 (1786); Squire v. Tod, 1 Camp. 293 (1808); Nash v. Towne, 5 Wall. (U. S.) 689 (1866); Janulewycz v. Quagliano, 88 Conn. 60, 89 Atl. 897 (1914); Trenkle v. Reeves, 25 Ill. 214 (1860); Lodi v. Goyette, 219 Mass. 72, 106 N. E. 1012 (1914); Vallentyne v. Immigration, 95 Minn. 195, 103 N. W. 1028 (1905);

counts, and is purely quasi contractual. According to principles of quasi contracts negligence of the plaintiff is no defense.130 The same rule should apply in equity, though here the authorities are not so clear that negligence of the plaintiff does not bar him.131

III

131

The law of both countries is more favorable to the defendant when refund is demanded of a beneficiary to reimburse a legatee or distributee who has not received his due. If the executor or administrator sues, he cannot recover if he paid voluntarily not under compulsion of suit. The distinction is not taken between cases where he pays under a misapprehension as to the existence of other beneficiaries or as to the size of the fund at his disposal on the one hand, and where on the other hand he disburses with full knowledge of law and facts. As some judges put it, whenever an executor pays a legacy the presumption is that he has sufficient assets to pay all.132 In Montgomery's Appeal,133 the court, in a case where the executor sought a refund for creditors, said:

"When an administrator pays out money, he is presumed to know the condition of the estate. The assets are in his hands, and he is familiar

Brokaw v. Duffy, 165 N. Y. 391, 59 N. E. 196 (1901); Ohio Trust Co. v. Allison, 243 Pa. 201, 89 Atl. 1137 (1914).

And cases where the defendant has been compelled to restore what he has received upon his repudiation of the contract though he has not actually failed to perform it. Drake v. Goree, 22 Ala. 409 (1853); Smith v. Jaccard, 20 Cal. App. 280, 128 Pac. 1023 (1912); Ryan v. Dayton, 25 Conn. 188 (1856); Elder v. Chapman, 176 Ill. 142, 52 N. E. 10 (1898).

And cases where after partial or complete performance on the part of the plaintiff he has been allowed to recover what he has parted with upon the defendant's performance becoming excusably impossible. The Allanwilde, 247 Fed. 236 (1917); Bibb . Hunter, 2 Duv. (Ky.) 494 (1866); Butterfield v. Byron, 153 Mass. 517, 27 N. E. 667 (1891); Joyce v. Adams, 8 N. Y. 291 (1853); Williams v. Allen, 10 Hump. (Tenn.) 337 (1849); Logan v. Le Mesurier, 6 Moo. P. C. 116 (1847); Krell v. Henry, 18 T. L. Rep. 823 (1902); Lumsden v. Barton, 19 T. L. Rep. 53 (1902) (semble). Compare Alfred Marks Realty Co. v. Hotel Hermitage, 156 N. Y. Supp. 179 (1915).

130 Kelly v. Solari, 9 M. & W. 54 (1841); Appleton Bank v. McGilvray, 4 Gray (Mass.) 518 (1855). See infra, page 340.

131 2 POMEROY, EQUITABLE JURISDICTION, § 856.

132 Newman v. Barton, 2 Vern. 205 (1690); Orr v. Kaines, 2 Ves. Sr. 194 (1750-51); Coppin v. Coppin, 2 P. Wms. 291, 296 (1725). See Davis v. Newman, 2 Rob. (Va.) 664 (1844). But compare Gallego v. Atty. Gen., 3 Leigh (Va.) 450, 488 (1832); Northrop v. Graves, 19 Conn. 548 (1849); Culbreath v. Culbreath, 7 Ga. 64 (1849). 92 Pa. 202, 206 (1879).

133

with their amount and value. He ought to know, and is chargeable with knowledge, of the amount of claims against the estate when he makes a payment on account of a distributive share. It would be a great hardship upon distributees, to whom an administrator has voluntarily made payments on account of their shares, if they may be called upon for repayment after lapse of years. They may have spent it, or increased their style of living in entire good faith, and in ignorance of any overpayment."

Here it is not clear whether the court rests its decision on the "voluntary" character of the payment or on change of position of the defendant. If, however, the executor paid under compulsion of suit, the English law allowed him to recover for the benefit of other legatees.134

The legatee or distributee who sued the overpaid beneficiary neither in England nor this country had as easy a path as the claimant who was a creditor. The beneficiary must first exhaust the personal representative. If the latter had protected himself by paying under order of court or was insolvent, the beneficiary, provided the assets were originally insufficient to pay his legacy, had indeed a right to demand relief.135 But if the assets, originally sufficient, had after payment to the defendant been accidentally destroyed, or wasted by the personal representative, the belated beneficiary had no remedy against the more diligent.136

The use of the term "voluntary" is unfortunate and misleading. The personal representative is in just as unfortunate a position whether he pays without compulsion of suit or at the end of a judgment. If "voluntary" means a payment, when all the facts are before the payer and the right of the other beneficiaries than the one paid is clear, the result is well enough. There is in effect a pure gift. While the payer cannot then cut off without their consent the defrauded legatees or distributees, he loses his right to

134 Newman v. Barton, 2 Vern. 205 (1690); Orr v. Kaines, 2 Ves. Sr. 194 (1750); Noell v. Robinson, 2 Vent. 358 (semble); Davis v. Newman, 2 Rob. (Va.) 664 (1844) (semble).

135 Anon., I P. Wms. 495 (1718); Walcott v. Hall, 1 P. Wms. 495 n (semble); Lupton v. Lupton, 2 Johns. Ch. (N. Y.) 614 (1817); Miller v. Stark, 29 S. C. 325, 7 S. E. 501 (1888); Uffner v. Lewis, 27 Ont. App. 242 (1900).

136 Walcott v. Hall, 1 P. Wms. 495 n; Fenwick v. Clarke, 31 L. J. Ch. 728 (1862); Peterson v. Peterson, L. R. 3 Eq. 111 (1866); Lupton v. Lupton, 2 Johns. Ch. (N. Y.) 614 (1817); Story, Equity Jurisprudence, § 92. But see Wallace v. Latham, 52 Miss. 291 (1876); Buffalo Trust Co. v. Leonard, 154 N. Y. 141, 47 N. E. 966 (1897).

reimbursement if they choose to charge him. But grammatically a payment made under a mistake of fact is a voluntary payment, and yet of course money so paid can be recovered. The words "involuntary" and "voluntary" have been often used by judges as a test of recovery quasi contractually, and have caused endless confusion.137 The word "voluntary" furnishes no accurate guide for nonrecovery. As Baron Martin said of an overpayment of fees to a parish clerk for extracts made from the register of burials and baptisms, "this is more like the case of money paid without consideration to call it a voluntary payment is an abuse of language." 138 In Pollock on Contracts,1 In Pollock on Contracts,139 the learned author remarks of money paid under circumstances of compulsion:

"But in all these cases the foundation of the right to recover back the money is not the involuntary character of the payment in itself, but the fact that the party receiving it did no more than he was bound to do already, or something for which it was unlawful to take money if he chose to do it, though he had his choice in the first instance. Such payments are then regarded as made without consideration. The legal effect of their being practically involuntary, though important, comes in the second place: the circumstances explain and excuse the conduct of the party making the payment. Similarly in the kindred case of a payment under mistake the actual foundation of the right is the failure of consideration, and ignorance of material facts accounts for the payment being made."

There seems no reason why the right of the personal representative here should not be the same as where a creditor, not a legatee or distributee, has been overlooked.

If a legatee or distributee is suing the beneficiary directly his right is more restricted than the creditor in two respects. First, it is stated that he must first exhaust the personal representative, unless perhaps the latter is insolvent.140 For this there seems no adequate reason. The unsatisfied legatee or beneficiary, is just as much entitled to sue directly as the unsatisfied creditor. The

137 See Brown v. McKinally, I Esp. 64 (1795); Heiserman v. Burlington Ry. Co., 63 Iowa, 732, 18 N. W. 903 (1884); Ill. Glass Co. v. Chicago Tel. Co., 234 Ill. 535, 85 N. E. 200 (1908); 3 ILL. L. Rev. 235.

138 Steele v. Williams, 8 Exch. 625, 632 (1853).

140 Orr v. Kaines, 2 Ves. Sr. 194 (1750); I ROPER, LEGACIES, 3 ed., 399. See Miller v. Stark, 29 S. C. 325, 7 S. E. 501 (1888).