3 Vt. 377 | Vt. | 1830
pronounced the opinion of the Court.— The bill, after stating that the plaintiff is indebted to the estate off Moses Robinson on several promissory notes, which are in suit against him, charges that the estate of Moses Robinson is indebted to the estate of Samuel Robinson, of which the plaintiff and Moses Robinson were joint residuary legatees; and the object off the bill is, to compel the administrator of Moses Robinson to account to the plaintiff for one moiety of the-sums so due from the-
A creditor, filing a bill against an executor, cannot make a debt- or of the estate a party ; nor can a legatee institute a suit against the debtors to the testator’s estate, for the purpose of compelling them to pay their debts to him in satisfaction of his legacy. Though the legatee, like a creditor, has an interest in the estate of the testator, and a right to have it applied to answer his demand in a due course of administration, and may have his remedy against the executor, yet, unless by the insolvency of the executor, or collusion between him and the debtors, a distinct ground is given for a bill by the legatee against them, it cannot be sustained.—(Coop. Eq. 175; 1 Mad. Ch. 287.) The executor’s power over the estate is exclusive, and he alone is entitled to sue for and collect the choses in action ; and to permit legatees or creditors to proceed against the debtors would lead to confusion and embarrassment in the settlement of the estate. Their right to follow the assets, and make both the executor and debtor parties to a bill in equity, is allowed only in some special case, such as collusion or insolvency. In the case before us,there is no suggestion of collusion,or even ofnegligence,onthepartofthe executor. An executor, after payment of the debts and legacies, is bound to pay over the surplus to the residuary legatees; and, in general, the probate bond is a sufficient security, and affords an ample remedy, to them. This is not a bill by one of two joint residuary legatees against the executor and the other legatee for an account and his portion of the residuum. Such is not the case stated in the bill. There is no allegation that the executor of Samuel Rolinson has any assets in his hands, after the payment of debts and legacies, or that there is any thing to which the plaintiff is entitled, except the money alleged to be due from the estate of Moses Robinson ; nor is there any prayer for an account or decree against the executor. Relief is prayed for only against the administrator of Moses Robinson, and that solely on the ground that the estate of Moses Robinson is indebted to the estate of Samuel Robinson, of which the plaintiff is residuary legatee. The case comes within the general principle laid down, and the demurrers must be allowed.
Bill dismissed.
