The Chancellor,
having heard the argument, considered that, under the circumstances, it would be an available defense to the sureties in the judgment to shew against the administrator that some next of kin had received, and that others had released their shares of the judgment, and that the main question in controversy was, as to the fact of such receipt and release ; and in order that it might be tried between proper parties at the September Term, 1868, it was ordered that the cause stand over and that all the next of kin, or the legal representatives of such of them as were deceased, should be joined as defendants.
This was done, their answers filed and further testimony taken. A new bill was filed by Benjamin D. Burton, as administrator b. n. of Miers Burton, deceased, against Charles Tunnell and Joseph Kollock, the object of which was to set aside the release relied on in the bill of Tunnell’s executor against Burton’s administrator, upon the ground that the'complainant signed the release, not knowing its effect and being informed by the trustees that it was only a release of the sureties in the guardian bond. It was also alleged by the complainant Burton, upon information and belief, that the other children signed under the same belief, and that there was no valid consideration for the release. This bill prayed that the release be decreed void, and that the injunction issued in the other suit should be dissolved, and that Tunnell should be enjoined from pleading the release in any suit and required to pay the surplus into Court.
The first case came to a re-hearing, together with the latter case, at the March Term, 1872, At the hearing, Layton, for the defendant, in the first case, was proceeding to read the depositions of John M. Burton, James Ponder, George P. Morris, and William E. Burton, read at the first hearing, when Robinson objected, on the ground that these persons were now parties. The validity of the objection [391]*391was admitted as to William E. Burton, who had filed his answer, but it was insisted that the depositions of the others should be read, because they had not answered as defendants. Pending the discussion, the objection was withdrawn and the depositions read. The hearing then proceeded.
Robinson, for the complainant.
There are but two questions involved ; one of fact and one of law.
First: The question of fact is, whether the older heirs have received their share of the estate collected by George Tunnell. A strong preliminary circumstance bearing on this question is,that the complainant, Benjamin D. Burton, one of the older heirs, was the very person who procured this release, under representations that the older heirs had been settled with. The accounts shew that each of them had been settled with.
Secondly : Where distributees have been unequally paid, further assets collected must be first applicable to make up the deficiency of those who have received unequally, The Court would restrain the administrator from continuing to pay one set of heirs unequally.
We here propose to work the same result by giving effect to the younger heirs’ release as to assets which, if collected, would belong to them, 1 Sto. Eq. Jur. Sec. 64, f; 1 Inst, 24, b.
This doctrine applies to creditors. 2 Wms. on Ex'rs 892.
A creditor having taken priority out of legal assets, will be postponed to others as against equitable assets. 1 Sto. Eq. Jur. Sec. 557; 2 P Wms. 416.
The creditor coming in after the legacies are part paid, shall take out of the unpaid assets only a proportion [392]*392of the debt before the rest must proceed against the legatees paid. 2 Wins, on Ex'rs, 1163, 1169. One case upon this principle, corresponds with the present one. Wilmott vs. Jenkins, 1 Beav. 401.
The only difference is, that that was a case of legatees ; this a case of distributees. The facts proved present this case ; Isaac Tunnell left $10,000 or $12,000. Supposing this to be recovered by the administrator of Miers Burton, it clearly would belong to the younger heirs. The sureties of George Tunnell were entitled, under the decree of the Court, to hold the assigned securities to indemnify themselves. They did so by settling with the younger heirs, the parties then and now really entitled. They were induced to this by the complainant in the last suit ; he did not come here with clean hands. But for him, we might have held the trust funds, i. e., paid the $1100 now claimed and have kept the trust funds, the property of George Tunnell, as our indemnity.
Layton, for the defendant.
I shall confine myself to the three points suggested by the Chancellor as now open.
1. Upon the question whether there were any debts outstanding, we rely upon the answer.
2. As to whether the older heirs had been paid, the preponderance of the proof is against the payments in full.
3. Was the release executed, and is it valid ? We did not contest its execution, but deny its operation further than to discharge the sureties in the guardianship. Such was the design, as shewn upon its face, and by the testimony of John M.Burton and Miers Burton. The release executed in May, 1861, does not touch the balance in Woolsey Burton’s hands. It would, therefore, be absurd to suppose it was- intended to release their interest in [393]*393Miers Burton’s estate, of which Woolsey Burton’s balance in hand was a part.
It is unnecessary to comment on the authorities cited on the other side, because, in this case, there is no inequality,—the ground upon which those cases rest.
Cullen, for the defendants
in the bill of Burton’s administrator vs. Tunnell and Kollock.
The absence of any evidence as to any claim by the older heirs of the fund held by the trustees, or any claim since, except by this complainant, tends strongly to show that nothing was due. All that the answers mean is, that they had not received their full and just-share of the whole estate as they would, had it been properly administered. This is not claimed ; but only that the older heirs had received, of the assets collected, more than the younger heirs would have, even after the assignment to them by the trustees. The action of the trustees was fully sustained by the Court of Errors and Appeals.
It is impossible to hold them liable according to the prayers of this bill. They had a right to use all of the funds for their indemnity.
The situation presented to them was this :
There were no debts outstanding—the older heirs were precluded by lapse of time, the younger heirs released; and the older heirs had received, before this judgment of George Tunnell’s assets, far more than the younger heirs.
With respect to the release, there was no dispute as to its execution. What it means, it shows for itself. Its validity is for the Court to decide.
Robinson, replied for the complainant, in the first case.
Laytou, replied for the complainant, in the second case.
[394]*394The Chancellor :—
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The Chancellor,
having heard the argument, considered that, under the circumstances, it would be an available defense to the sureties in the judgment to shew against the administrator that some next of kin had received, and that others had released their shares of the judgment, and that the main question in controversy was, as to the fact of such receipt and release ; and in order that it might be tried between proper parties at the September Term, 1868, it was ordered that the cause stand over and that all the next of kin, or the legal representatives of such of them as were deceased, should be joined as defendants.
This was done, their answers filed and further testimony taken. A new bill was filed by Benjamin D. Burton, as administrator b. n. of Miers Burton, deceased, against Charles Tunnell and Joseph Kollock, the object of which was to set aside the release relied on in the bill of Tunnell’s executor against Burton’s administrator, upon the ground that the'complainant signed the release, not knowing its effect and being informed by the trustees that it was only a release of the sureties in the guardian bond. It was also alleged by the complainant Burton, upon information and belief, that the other children signed under the same belief, and that there was no valid consideration for the release. This bill prayed that the release be decreed void, and that the injunction issued in the other suit should be dissolved, and that Tunnell should be enjoined from pleading the release in any suit and required to pay the surplus into Court.
The first case came to a re-hearing, together with the latter case, at the March Term, 1872, At the hearing, Layton, for the defendant, in the first case, was proceeding to read the depositions of John M. Burton, James Ponder, George P. Morris, and William E. Burton, read at the first hearing, when Robinson objected, on the ground that these persons were now parties. The validity of the objection [391]*391was admitted as to William E. Burton, who had filed his answer, but it was insisted that the depositions of the others should be read, because they had not answered as defendants. Pending the discussion, the objection was withdrawn and the depositions read. The hearing then proceeded.
Robinson, for the complainant.
There are but two questions involved ; one of fact and one of law.
First: The question of fact is, whether the older heirs have received their share of the estate collected by George Tunnell. A strong preliminary circumstance bearing on this question is,that the complainant, Benjamin D. Burton, one of the older heirs, was the very person who procured this release, under representations that the older heirs had been settled with. The accounts shew that each of them had been settled with.
Secondly : Where distributees have been unequally paid, further assets collected must be first applicable to make up the deficiency of those who have received unequally, The Court would restrain the administrator from continuing to pay one set of heirs unequally.
We here propose to work the same result by giving effect to the younger heirs’ release as to assets which, if collected, would belong to them, 1 Sto. Eq. Jur. Sec. 64, f; 1 Inst, 24, b.
This doctrine applies to creditors. 2 Wms. on Ex'rs 892.
A creditor having taken priority out of legal assets, will be postponed to others as against equitable assets. 1 Sto. Eq. Jur. Sec. 557; 2 P Wms. 416.
The creditor coming in after the legacies are part paid, shall take out of the unpaid assets only a proportion [392]*392of the debt before the rest must proceed against the legatees paid. 2 Wins, on Ex'rs, 1163, 1169. One case upon this principle, corresponds with the present one. Wilmott vs. Jenkins, 1 Beav. 401.
The only difference is, that that was a case of legatees ; this a case of distributees. The facts proved present this case ; Isaac Tunnell left $10,000 or $12,000. Supposing this to be recovered by the administrator of Miers Burton, it clearly would belong to the younger heirs. The sureties of George Tunnell were entitled, under the decree of the Court, to hold the assigned securities to indemnify themselves. They did so by settling with the younger heirs, the parties then and now really entitled. They were induced to this by the complainant in the last suit ; he did not come here with clean hands. But for him, we might have held the trust funds, i. e., paid the $1100 now claimed and have kept the trust funds, the property of George Tunnell, as our indemnity.
Layton, for the defendant.
I shall confine myself to the three points suggested by the Chancellor as now open.
1. Upon the question whether there were any debts outstanding, we rely upon the answer.
2. As to whether the older heirs had been paid, the preponderance of the proof is against the payments in full.
3. Was the release executed, and is it valid ? We did not contest its execution, but deny its operation further than to discharge the sureties in the guardianship. Such was the design, as shewn upon its face, and by the testimony of John M.Burton and Miers Burton. The release executed in May, 1861, does not touch the balance in Woolsey Burton’s hands. It would, therefore, be absurd to suppose it was- intended to release their interest in [393]*393Miers Burton’s estate, of which Woolsey Burton’s balance in hand was a part.
It is unnecessary to comment on the authorities cited on the other side, because, in this case, there is no inequality,—the ground upon which those cases rest.
Cullen, for the defendants
in the bill of Burton’s administrator vs. Tunnell and Kollock.
The absence of any evidence as to any claim by the older heirs of the fund held by the trustees, or any claim since, except by this complainant, tends strongly to show that nothing was due. All that the answers mean is, that they had not received their full and just-share of the whole estate as they would, had it been properly administered. This is not claimed ; but only that the older heirs had received, of the assets collected, more than the younger heirs would have, even after the assignment to them by the trustees. The action of the trustees was fully sustained by the Court of Errors and Appeals.
It is impossible to hold them liable according to the prayers of this bill. They had a right to use all of the funds for their indemnity.
The situation presented to them was this :
There were no debts outstanding—the older heirs were precluded by lapse of time, the younger heirs released; and the older heirs had received, before this judgment of George Tunnell’s assets, far more than the younger heirs.
With respect to the release, there was no dispute as to its execution. What it means, it shows for itself. Its validity is for the Court to decide.
Robinson, replied for the complainant, in the first case.
Laytou, replied for the complainant, in the second case.
[394]*394The Chancellor :—
With respect to the amount of the judgment, the sum of $28,468.99, ascertained by the referees, and for which judgment was rendered, must be held to be conclusive as representing the balance of the personal estate of Miers Burton, deceased, then chargeable to George Tunnell and his trustees, in his administration, subject to such credits as might have arisen since the date of said judg- , ment, April 19, 1850. The payments prior to that date, made by Tunnell to the widow and heirs, before his removal, those made to the remaining administrator by the trustees after Tunnell’s removal, and also some payments made by the assignees in trust to Benjamin Burton, as guardian of the then minor children of Miers Burton, deceased, were all proper credits in the settlement upon which that judgment was. based ; and they must now be presumed to have been allowed in ascertaining the amount of the judgment; so that the judgment has to be treated as assets for collection and distribution to the widow and children, subject only to such credits or matters of defense as may have arisen since its date. • Precisely in what way the judgment was ascertained, and whether or not it was correctly ascertained, cannot be known from any data in this cause; nor is inquiry on that point material, since the judgment, as it stands, is conclusive, as to the amount of distributed assets at hand at the date of its recovery.
Subsequent to that date, there were some small payments made to Woolsey Burton, the remaining administrator, by Isaac Tunnell, one of the sureties. These payments, when properly applied to the accruing interest on the judgment, would leave a balance, so far as any credits arising since the recovery of the judgment was proved,of $27,785.86, with interest from January 8,1851. It therefore represents that amount of distributable assets at that date.
Now, the prayer of the bill is, that the further collection of this judgment maybe restrained, upon the ground [395]*395that there are no outstanding debts to be paid; that the widow and five elder children of the intestate have received, out of other assets collected by George Tunnell, their full share of the whole, and that the three younger children who thus were alone interested in the fruits of their judgment, have, upon a settlement with them, released the sureties.
It may be assumed, considering the long lapse of time since Miers Burton’s death, the solvency of his estate and the absence of evidence of any outstanding debts against the estate that no such debts now unpaid, or at least recoverable, exist. Consequently the balance of this judgment, as just stated; with its interest, is assets, collectible for the next of kin, i. e. the widow and children, or for.such of them as are not shewn to have received satisfaction for their shares, or to have released the sureties. It was decided, upon the former hearing of the cause, that it is, in equity, under the circumstances of this case, an available defense to the sureties in the judgment to shew against even the administrator of the estate, that the next of kin have some of them received, and the rest released, their shares of the judgment. Whether the assets represented by this judgment were in part satisfied as to some of the next of kin, i. e. the widow and elder children, and released as to the younger children, has been the main question in controversy throughout the cause. That it might be tried between proper parties, the cause was ordered to stand over in order to join, as defendants, all the next of kin, or the legal representatives of such of them as were deceased. That has been done, their answers filed, further testimony taken, the case re-argued, and the main question now comes before me for a final judgment. I will proceed to consider it.
First, then, it may be at once concluded that the three younger children, who, with this complainant Benjamin D. Burton, executed the release of May 8, 1861, to George [396]*396Tunnell’s sureties, have no claim under this judgment. The release is abundantly proved, has not been successfully impeached for fraud or mistake, and was executed and delivered to the sureties upon a sufficient consideration, which was the assignment to them, the younger children, of certain assets held by the sureties under an assignment from George Tunnell, made for their indemnity. The release was executed expressly, as well to discharge the sureties in the administration of George Tunnell as his sureties in the guardianship of these children. The assets assigned to these children as the consideration for the release, were accepted by them as satisfaction in full of their share of the estate, and must be so treated. Next, as to the share of Benjamin D. Burton. He too, has no claim under this judgment. True, it does not appear that he received his full share of the distributable assets collected by George Tunnell. The proof is, that his share respectively of the balances shown by the three distributive accounts passed by Tunnell, amounting, in all, to $1624 go, were paid to his guardian, Benjamin Burton. His share of the amount in which the Orphans’ Court surcharged the last account, i. e. his share of the $5481.57 is not shown to have been paid. Nevertheless, any claim on his part is based by the release in which he joined. Though he did not share in the assets assigned to the younger heirs, yet the assignment of them by the trustees is a consideration which affects him; for it was procured in part through his agency, he being actively instrumental in bringing about the entire arrangement. He evidently considered that the judgment against Tunnell’s sureties was worthless, and that nothing would be lost by a release of his interest in it; that out of the other assets, the widow and the elder children had, in the distributions made by Tunnell, received as much or more than ■the younger children would realize .out of the assets in the hands of Tunnell’s assignees in trust; and desiring, as a matter of justice, that the younger children [397]*397should receive these remaining assets, and as an inducement to the arrangement, he signed the release. He cannot complain that he is held concluded by his voluntary release, executed upon a sufficient consideration without fraud or influence exerted upon him.
We now pass to the case of the widow and four other elder children of Miers Burton, deceased. They have never released any claim they might respectively have under this judgment. As to them, the sole question is, have their shares of the unappropriated balances of personal estate, collected by George Tunnell, or the shares of any of them been satisfied ? The precise point of inquiry, it should be observed here, is not whether they have received any payments made directly on this judgment, for it is agreed that they have not; but whether, as might be the case, they, or any of them, since its recovery, have received, out of the distributed assets not covered by the judgment, their full share of the several unappropriated balances of personal estate collected by George Tunnell as shewn by his several administration accounts and which constitute entire liability of Tunnell and his sureties to the next of kin. For if out of any part of the personal estate they have received what is equivalent to a full share of the whole, of course, they can have no claim upon this judgment or upon any sums collected under it, but its fruits if collected would belong to those of the children who did not receive, out of the distributed assets, their full share of the personal estate, and it would be subject to the operation of their release. If however, what" the widow and elder heirs received out of the distributed assets should be found to fall short in amount of their share of the unappropriated balances of personal estate collected by Tunnell, then to the extent of such deficiency, they will have a claim upon the assets represented by this judgment, if collected. This shews the precise point to which our inquiry must be directed; first, what were the unappropriated balances of [398]*398personal estate collected by George Tunnell ? Next, how far does it appear in evidence that the widow and elder heirs received, out of the distributed assets, their share of such balances ? The unappropriated balances of personal estate collected by Tunnell are shewn by his three administration accounts passed, respectively, December io, 1839, October 8, 1840, and January 7, 1842, to which must be added the sum in which the Orphans’ Court surcharged the last of the accounts. They are as follows :
Balance on account of Dec. 10, 1839..... $19,510.93
“ “ “ “ Oct. 8, 1840..... 8,000.42!
“ “ “ “ June 7,1842..... 4,257.25
Amount surcharged upon third account.. 5,481.57
Total...............................$37,248.17!
With those administration accounts, there were also passed distributive accounts shewing the net balance for distribution, the shares of the widow and children respectively, and also, certain credits to the administrator for sums paid on account of these shares. At the hearing, it was agreed that these distributive accounts be admitted as evidence for all that appears upon them. Now upon the examination of the proofs with respect to the widow and each of the four children whose claims are not disposed of by the release, I find these results.
(1) Woolsey Burton received from George Tunqell before his removal from office, the sum of $3506.37 which was in excess of his share of the unappropriated balance of the personal estate collected by George Tunnell.
(2) Elizabeth Burton, the widow, did not receive her full share, and- there remain due to her personal representatives. $1659.22, being the balance of her share of the first distributive account with interest from Dec. 10, 1839; $2663.43 being her'share of the second distributive account with interest from Oct. 8, 1840, and $3240.23 being [399]*399her share of the third distributive account with interest from June 7, 1842.
(3) 'To Mrs. Mary A. Irons there is due the sum of $456.79, being the balance unpaid of her share of the sum surcharged in the third distributive account, with interest from June 7, 1842.
(4) William E. Burton is entitled to receive, for balance unpaid of his share of the sum so surcharged, the sum of $810.95, with interest from June 7, 1842.
(5) To the personal representatives of Sallie E. Waples, for the balance unpaid of her share under the third distributive account as surcharged by the Orphans’ Court, there is due the like sum of $810.05 with interest from June 7, 1842.
These several sums the administrator d. b. n. is entitled to collect under the judgment; and against the collection of any further or other sums under said judgment the administator must be perpetually enjoined, and the complainant and defendant, respectively, must each pay his own costs in this cause.