The opinion of the court was delivered, by
Strong, J.
When Thomas Sloan, the executor, in obedience to the order of the Orphans’ Court, gave his bond, with Robert Rogers as his surety, the legatees under the will of Philip Shaff*474ner acquired a vested interest in the bond. It .became in equity theirs, as much so as if it had been given directly to them. Pursuant to the directions of the will, the executor had sold the real estate, and he held the proceeds of sale in part for immediate distribution among some of the legatees, and in part for investment, and ultimate payment to other legatees, among whom were Jacob Shaffner and his children. By the express directions of the Act of Assembly under which it was taken, the bond was a security to the legatees, in which they, and they alone, were interested. The Act of March 29th 1832, § 22, enacts that a bond, taken as this was, shall be deemed and considered in trust for the benefit of all persons interested in the estate. It is true the Orphans’ Court was the instrument by which the bond was obtained. The executor gave it in order to avoid being dismissed from his trust, and it was approved by the court. But when that was done, the power of the court over it ceased. It is not, as was thought by the court below, implied in the power to compel an executor to give a bond, that the court can release it after it has been given. The parties in interest may, but without their consent, the obligors cannot be discharged by anything less than compliance with its conditions. It was a serious mistake of the court below to treat such a bond as only a guaranty to the Orphans’ Court. It is as much a(security to the legatees as is a recognisance in partition to secure to an heir his share of the valuation money a security to that heir. The court misapprehended, therefore, the power of the Orphans’ Court over the bond given by Sloan and Rogers. That court had no authority to do what it attempted to do in 1847, namely, to release the bond and discharge the surety without the consent of all the parties in interest. The Act of Assembly gives no such authority, and it is inconsistent with the declared uses and ownership of such a security. So it was decided in Newcomer’s Appeal, 7 Wright 43. The'bond in that case was given by a guardian, and the power of the Orphans’ Court to cancel it and substitute another was denied. It is probable that when the court directed the release of the bond now in suit, it was misled by - a misrepresentation of facts. It was Sloan himself, the obligor and executor, who presented a petition praying that the bond might be released, and another bond substituted. At the same time he presented written declarations of three of the four persons interested in the fund he held, consenting to the proposed release and substitution, and also an unauthorized consent by one of them for the fourth. It was-in reliance, doubtless, upon these declarations that the court declared the bond released. Invfact, however, Jacob Shaffner, to whom the interest of one-fourth of the fund had been bequeathed, with a bequest to his children after his death, had never consented, nor authorized any one to consent for him. *475Nor had his children consented, or any one pretended to consent for them. Neither he nor they were present when the entry of a release was made. They were unrepresented, and they had no notice. Jacob Shaffner was not, therefore, bound by any action of the court in the premises, and so far as he and his children are concerned, the release of the bond was an entire nullity. Until it can be shown that he had no interest in the security, a decree of the court annihilating his rights, made without notice to him, must he regarded as simply void. And this, even if the court had possessed the power to release the bond after due notice: McKee v. McKee, 2 Harris 237, and eases there cited. It was here that the first error of the court below, in the trial of the present case, was made. It wras in holding that the jurisdiction of the Orphans’ Court comprehended the right to release the executor’s bond, or substitute another in its stead, without notice to the parties interested in it, and without their consent. This was a fatal error. Unless, therefore, the defendant had a defence in the other branch of the case, the court should have affirmed the plaintiff’s point, and instructed the jury that he was entitled to recover.
The other branch of the defence arises out of the following facts: — Contemporaneously with the execution of the bond upon which this suit was brought, Sloan gave a judgment-bond to Robert Rogers, for an equal sum, and with William Baker as his surety. It was given to indemnify Rogers for becoming bound with him in the bond required by the Orphans’ Court. Judgment was entered upon it, an execution was issued, and the money was paid to the sheriff. The Court of Common Pleas, out of which the execution issued, then made the following order: “ March 8th 1847. The defendant, Thomas Sloan, having by the substitution of another bond released the plaintiff from his suretyship, as executor of Philip Shaffner, deceased, that the money in the hands of the sheriff he shall dispose of as follows; — 1st. That he pay into court $867.65, an amount claimed by the plaintiff; 2d. Pay to William Barkman, attorney in fact of Charles Greenawalt and wife (who was one of the legatees) $1386.46; 3d. Pay to Alfred Shaffner (another legatee) $1838.71; 4th. Pay the residue to Thomas Sloan.” This the court below thought amounted to satisfaction of the bond given by Sloan and Rogers in the Orphans’ Court, even if it was not released. It is to be noticed that the money raised by the execution was not paid into the Orphans’ Court and distributed there. It was not even paid into the Common Pleas. It is further to be observed that neither Jacob Shaffner nor his children had any notice of the appropriation which the Court of Common Pleas directed. They were no parties to it, and they were not bound by it. It is remarkable also, that more than half the entire sum was retained by Thomas *476Sloan, the executor, and $867.65 taken by Rogers, his surety, for a debt due to him from Sloan. Most extraordinary would it be, if this transaction could be considered a discharge of the bond which Sloan and Rogers gave in trust for the parties interested in the estate of the testator. It cannot. An executor and his surety cannot thus release themselves from the obligation of their bond, given to secure the faithful performance of the executor’s trust. They cannot thus destroy a security made for the benefit of the legatees. If they could — if an executor or an administrator, by paying to his surety a sum equal to the amount of their bond, or by giving to him a counter security, on which the amount may be raised and brought into a Court of Common Pleas for distribution, could release himself and his surety from the obligation of the bond theyjiave given — it is idle for an Orphans’ Court to exact security from a defaulting trustee. The security is at the mercy of the obligors. Let it be, as argued, that the counter security given to Rogers enured to the benefit of the legatees named in Philip Shaffner’s will, that they had a right to control it. What then ? It was collateral to the bond given in the Orphans’ Court. The legatees were not bound to follow it. They were not compellable to look beyond the security taken for them by the Orphans’ Court, and consequently, if the collateral does not avail for them without any fault of theirs, they do not lose the protection of the principal.
The condition of the bond that Sloan and Rogers gave in the Orphans’ Court was, that Sloan should well and truly discharge his trust as executor, and pay all money that might come to his hands, according to the directions of the will of his testator. But his duty under the will was not performed until he paid to Jacob Shaffner the legacy given him, and paid to Jacob’s children their legacies. What occurred in the Common Pleas was no compliance with this condition of the bond. It was therefore no satisfaction. Sloan was bound to see that the money was properly applied, and neither he nor Rogers can escape by taking the money themselves, especially when they took it without notice to the legatees.
There is, then, no defence to the plaintiff’s claim in this part of the case, and none in any part; and it was error to charge the jury that the plaintiff could not recover. As the ease ajDpeared, he was entitled to a verdict. The judgment of Rogers v. Sloan and Baker, and the subsequent proceedings thereon, were quite immaterial.
Judgment reversed, and a venire de novo awarded.