The opimon of the court was delivered by
Coulter, J.
I can perceive no weight in the error assigned and strongly urged, that a legatee only may ask the court to appoint an auditor to make distribution.
If the matter stood upon the isolated ground that, under the statute, an executor would have no standing in court to ask for the appointment of an auditor for that purpose, it would be assented to. But, in this instance, the auditor having been appointed and made report to the court, his functions were ended, without some further action by the court. In that position of the case, the legatee now objecting appeared in court and prayed that the [190]*190report should be recommitted to the auditor for further hearing and examination. He might have moved the court to quash the proceeding as irregular, but he did not choose to do that. On his motion and application, the report was recommitted, and he had a full hearing before the auditor, to whose report he now objects.— Under these circumstances, if the original appointment cannot be considered as having been made at his instance, he at least adopted it, and made the proceedings his own, and must now be held to it; as a party cannot be allowed to play fast or loose with judicial proceedings, according to his interest.
Besides, Mr. Dunlap, who made thé motion for distribution on behalf of the executor, was also attorney for one of the legatees, and in that capacity, adopts and sanctions the proceeding.
It is strenuously urged by the objecting legatee, that there is no evidence that the $1000 United States loan, in relation to which the controversy arises, was paid to George Ludlam, in his life time, by government. But the auditor distinctly reports that the evidence before him satisfactorily established that the loans were paid off to the testator in his life time. We must therefore regard the fact as established, because the report of an auditor, like an award of referees, or verdict of a jury, determining upon facts, ought not to be set aside, except for plain mistake, which it is the business of the exceptant to establish by affirmative evidence. 5 Pawle 323. But the exceptant called Matthew L. Bevan, the accountant, as a witness, and examined Mm before the auditor, which he had a right to do, and the witness stated that the amount of the United States stock loan was delivered to Mr. Bevan, by the testator, in his life time. Bevan’s house being the bankers of the deceased. This court, therefore, must take it as established that the amount of the loan held by Ludlam, the testator, was paid to him in his life time. And this approximates us to the main question in the cause, that is, whether the payment by government of the one thousand dollar stock to the testator was an ademption of the legacy of that stock to James Ludlam, of Oxford street, London. We are met, however, as preliminary to the consideration of this point, with the exception that Mr. Bevan, the executor, was estopped from alledging .that the stock was extinguished in the life of testator and the legacy adeemed by the fact that he charged himself with the amount of the stock in his administration account, as stock existing. That entry in the account is in this form, “the following in my hands to be disposed of as the will directs,” and then enumerates other stocks specifically bequeathed, and adds with them, “ to shares United States áix per cent, stock at par $1000.” The executor had the fund in his hands, and merely followed the description of stocks in the will, and it is evident that at that time, he believed tMs stock would go to the representatives of James Ludlam, to whom he wrote, to [191]*191that effect, in England. He was then ignorant that in certain cases of specific legacies, the law considered the legacy adeemed and lost when the specific corpus of it was destroyed. But he said no more, in effect, than that he would pay the whole according to the provisions of the will. But, upon consulting counsel, he.was instructed that this legacy of the United States stock was adeemed, and did not belong to the representatives of James Ludlam, but that the amount thereof went to the residuary legatee. And the question is whether this mistake, (of law, if you choose to call it so,) shall estop the executor before payment of the money, out of his hands, from doing that which is' just and lawful, and thereby protecting himself. It is very clear that if the legacy was adeemed, a payment by the executor to the representatives of Ludlam would not protect him from repayment to the residuary legatee, who would, in that category, be entitled to demand and receive the amount. Is then the executor estopped by inserting it in his account as stock, and deprived of the benefit of the law as applied to the real facts of the case ? If he had made a voluntary payment, with a knowledge of all the facts, to James Ludlam’s representatives, whether in such case he could recover it back from them on account of his mistake of the law, would present a question entirely different, and one on which it is not necessary to express any opinion. He discovered his mistake after his account was presented in the Orphans’ Court, and before any distribution of the fund. Was he irrevocably bound or estopped by that settlement ? He was not. In McCoy’s Appeal 15 8. & It. 57, when three executors had settled an account, and balance decreed, it was held that- after a lapse of six years, they could not settle separate accounts by which two of them were discharged from all the assets; because it would be to the injury of creditors, after so long a time; but it was not pretended that otherwise the settlement was conclusive. In Harriot vs. Davey, 1 Dallas, 164, in an action against an executor by a legatee, it was held that the settlement of an account was not conclusive. In Foulk vs. Brown 2 Watts 214, it is said by Sergeant, J., that the settlement in the Orphans’ Court is to show the balance of assets in the executor’s hands, after payment of debts and charges, and can have no effect as to the amount due to a legatee. By statutory provision, distribution is to be made by an executor under the direction of the Orphans’ Court having jurisdiction of their accounts, and the decree of distribution is a subsequent and different decree from that by which the amount of assets is fixed and established. The persons who are the legatees, and the amount they shall receive, is the object and purpose of the decree of distribution, which is not controlled or fettered by admissions or declarations of the executor, either in his account or elsewhere, except as to the amount of assets in his hands.
[192]*192An estoppel is usually where a man, by asserting what is not true, induces another to do an act which would be to his hurt and detriment, if the other were permitted to establish that the assertion which he made, and which induced the act, was false. But the executor did not mislead the representatives of James Ludlam to do anything to their injury. He communicated a copy of the account, a copy of the will, and informed them that he was ready to pay according to the will. Now, they were entitled to receive other stocks not adeemed, and the most that can be said is that they will not receive as much as they would appear to be entitled to by the face of the will, and that he did not inform them that the legacy of the $1000 government stock was adeemed, which it would appear that he did not himself then know was the legal effect of its being paid to the testator in his life time by the government.
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The opimon of the court was delivered by
Coulter, J.
I can perceive no weight in the error assigned and strongly urged, that a legatee only may ask the court to appoint an auditor to make distribution.
If the matter stood upon the isolated ground that, under the statute, an executor would have no standing in court to ask for the appointment of an auditor for that purpose, it would be assented to. But, in this instance, the auditor having been appointed and made report to the court, his functions were ended, without some further action by the court. In that position of the case, the legatee now objecting appeared in court and prayed that the [190]*190report should be recommitted to the auditor for further hearing and examination. He might have moved the court to quash the proceeding as irregular, but he did not choose to do that. On his motion and application, the report was recommitted, and he had a full hearing before the auditor, to whose report he now objects.— Under these circumstances, if the original appointment cannot be considered as having been made at his instance, he at least adopted it, and made the proceedings his own, and must now be held to it; as a party cannot be allowed to play fast or loose with judicial proceedings, according to his interest.
Besides, Mr. Dunlap, who made thé motion for distribution on behalf of the executor, was also attorney for one of the legatees, and in that capacity, adopts and sanctions the proceeding.
It is strenuously urged by the objecting legatee, that there is no evidence that the $1000 United States loan, in relation to which the controversy arises, was paid to George Ludlam, in his life time, by government. But the auditor distinctly reports that the evidence before him satisfactorily established that the loans were paid off to the testator in his life time. We must therefore regard the fact as established, because the report of an auditor, like an award of referees, or verdict of a jury, determining upon facts, ought not to be set aside, except for plain mistake, which it is the business of the exceptant to establish by affirmative evidence. 5 Pawle 323. But the exceptant called Matthew L. Bevan, the accountant, as a witness, and examined Mm before the auditor, which he had a right to do, and the witness stated that the amount of the United States stock loan was delivered to Mr. Bevan, by the testator, in his life time. Bevan’s house being the bankers of the deceased. This court, therefore, must take it as established that the amount of the loan held by Ludlam, the testator, was paid to him in his life time. And this approximates us to the main question in the cause, that is, whether the payment by government of the one thousand dollar stock to the testator was an ademption of the legacy of that stock to James Ludlam, of Oxford street, London. We are met, however, as preliminary to the consideration of this point, with the exception that Mr. Bevan, the executor, was estopped from alledging .that the stock was extinguished in the life of testator and the legacy adeemed by the fact that he charged himself with the amount of the stock in his administration account, as stock existing. That entry in the account is in this form, “the following in my hands to be disposed of as the will directs,” and then enumerates other stocks specifically bequeathed, and adds with them, “ to shares United States áix per cent, stock at par $1000.” The executor had the fund in his hands, and merely followed the description of stocks in the will, and it is evident that at that time, he believed tMs stock would go to the representatives of James Ludlam, to whom he wrote, to [191]*191that effect, in England. He was then ignorant that in certain cases of specific legacies, the law considered the legacy adeemed and lost when the specific corpus of it was destroyed. But he said no more, in effect, than that he would pay the whole according to the provisions of the will. But, upon consulting counsel, he.was instructed that this legacy of the United States stock was adeemed, and did not belong to the representatives of James Ludlam, but that the amount thereof went to the residuary legatee. And the question is whether this mistake, (of law, if you choose to call it so,) shall estop the executor before payment of the money, out of his hands, from doing that which is' just and lawful, and thereby protecting himself. It is very clear that if the legacy was adeemed, a payment by the executor to the representatives of Ludlam would not protect him from repayment to the residuary legatee, who would, in that category, be entitled to demand and receive the amount. Is then the executor estopped by inserting it in his account as stock, and deprived of the benefit of the law as applied to the real facts of the case ? If he had made a voluntary payment, with a knowledge of all the facts, to James Ludlam’s representatives, whether in such case he could recover it back from them on account of his mistake of the law, would present a question entirely different, and one on which it is not necessary to express any opinion. He discovered his mistake after his account was presented in the Orphans’ Court, and before any distribution of the fund. Was he irrevocably bound or estopped by that settlement ? He was not. In McCoy’s Appeal 15 8. & It. 57, when three executors had settled an account, and balance decreed, it was held that- after a lapse of six years, they could not settle separate accounts by which two of them were discharged from all the assets; because it would be to the injury of creditors, after so long a time; but it was not pretended that otherwise the settlement was conclusive. In Harriot vs. Davey, 1 Dallas, 164, in an action against an executor by a legatee, it was held that the settlement of an account was not conclusive. In Foulk vs. Brown 2 Watts 214, it is said by Sergeant, J., that the settlement in the Orphans’ Court is to show the balance of assets in the executor’s hands, after payment of debts and charges, and can have no effect as to the amount due to a legatee. By statutory provision, distribution is to be made by an executor under the direction of the Orphans’ Court having jurisdiction of their accounts, and the decree of distribution is a subsequent and different decree from that by which the amount of assets is fixed and established. The persons who are the legatees, and the amount they shall receive, is the object and purpose of the decree of distribution, which is not controlled or fettered by admissions or declarations of the executor, either in his account or elsewhere, except as to the amount of assets in his hands.
[192]*192An estoppel is usually where a man, by asserting what is not true, induces another to do an act which would be to his hurt and detriment, if the other were permitted to establish that the assertion which he made, and which induced the act, was false. But the executor did not mislead the representatives of James Ludlam to do anything to their injury. He communicated a copy of the account, a copy of the will, and informed them that he was ready to pay according to the will. Now, they were entitled to receive other stocks not adeemed, and the most that can be said is that they will not receive as much as they would appear to be entitled to by the face of the will, and that he did not inform them that the legacy of the $1000 government stock was adeemed, which it would appear that he did not himself then know was the legal effect of its being paid to the testator in his life time by the government. There is nothing in the case which prevented the Orphans’ Court from decreeing this sum to the person legally entitled to demand and receive it. If Mr. Bevan had paid the money to Ludlam’s representatives, and they had expended or used it, a different case would be presented on an attempt to recover it back; but his putting it into the administration account, under an erroneous impression that it still belonged in its changed and altered condition to James Ludlam’s representatives, does not conclude and bind Mm; especially it does not make or convert a specific legacy into a general money legacy. We come then to the question whether this was a specific legacy or not. If it was specific — of the very corpus of the United States stock held by the testator — then it was adeemed; because the corpus of that stock was extinguished and paid to the testator before his death. The words of the bequest would seem to leave little doubt on this subject “ One thousand dollars of the United States six per cent, stock, of the year 1812, standing in my name in the loan office Penn’a. as per certificate No. 269.” It is not a bequest of $1000 payable out of stock held by him; but $1000 of stock which stands in his name in the loan office, by certificate 269. It is the very thing itself, the corpus of the stock, that is bequeated. In Blackstone vs. Blackstone, 3 Watts, 337, where the bequest was “ of all my 250 shares of stock which I hold in the bank, together with such interest as may have accrued thereon,” and where it appeared that testator sold the stock in his life-time, and took a bond for the same, although there was evidence that the testator declared the bond should be in lieu of the stock, it was ruled that the legacy was adeemed. There, the change of the corpus of the legacy w,as from bank stock into a bond; here, the change is from governmenkstock into money, which mingled itself with the other money of the testator. There, it was “my hank stock which I hold;” here it is “my government stock standing, in my name, on the books” &c. as per certificate 269.” One does not individuate the corpus of the gift more distinctly than [193]*193the other, and each is so definite as to defy mistake. These very words, to wit: “stock standing in my name,” were held in Barton vs. Cook, 5 Ves. 461, to make a legacy specific. It is of no consequence that the change was not effected by the sole act of the testator. The change was not effected by act or operation of law; it was the act of the government, which was the debtor of the testator. It is precisely the same as if a bond, payable by A to testator, had been paid in the life time of the obligee. The principle depends upon the entire change or destruction of the fund, security, or chattel specifically bequeathed; and what difference can it make in the principle whether the change be made by the act of the testator himself, or merely with his assent and knowledge.— He knows that the corpus of the thing bequeathed is gone, and cannot be available to the legatee. But the distinction once made on the subject is now obliterated: Walton vs. Walton, 7 John. Ch. Ca. 258; 1 Roper on Legacies, 243. It is often said that the law leans against specific legacies, and inclines to general and demonstrative legacies, as some people call legacies general, but payable, in the first instance, out of a particular fund. But they exist, nevertheless, and when well defined, must have their legal effect. We think this was a specific legacy, as well from the words of the will manifesting such intent as from the application of legal rules; and the corpus of it having been received by the testator in his life time, it was adeemed as extinguished, and the amount dropped into the surplus to be disposed of under the residuary clause. We cannot be persuaded that the executor was not at full liberty to have the misapprehension corrected before the auditor. The whole account is referred to be adjusted according to law, and not merely one side of it. The accountant is within the protection and care of the auditor, and the Orphans’ Court, under whose direction the distribution is to be made, as well as the distributees; and justice should be meted out to one, as well as to the other.
The decree of the court upon the report of the auditor is affirmed.