Page:Federal Reporter, 1st Series, Volume 10.djvu/82

 70 FEDERAL REPORTER. �explained by the suggestion made in the record that he is protected by retunding bonds, or by stipulation or agreement to hold him harm- less; but, if thisbe so, it only shows how willing he is to manage his trust in the interest of his brother and against this plaintiff. It is the exhibition of a partiality foreign to the duty of any trustee, no matter how he may feel justified in it. �I have corne to the conclusion that whether the executor chooses to act or not, whether he is content to admit the non-liability of his brother's estate or not, the plaintiff can enforce whatever rights the executor has against his brother, and be substituted to them. This question, therefore, is to be considered not only with reference to the rights of the plaintiff as against Joel L. Pulliam's executors, but also to those of the executor of J. N. Pulliam against them. "It is un- doubtedly," says Chief Justice Marshall, "the course of the court to decree in the first instance against the party who is ultimately respon- flible ; but this is only done where the parties are before the court at the time of the decree, and their several liabilities are clearly ascertained." Garnet v. Macon, 2 Brook. 185, 225. This money paid to the brother was in every sense the plaintiff's money. The notes on which it was collected were hers before her marriage with the testator; the will gave them to her specifically ; and in order that her ownership and enjoyment of the legacy should be complete, the will of the testator charged the debts on all the other property, real and personal, in exoneration of that legacy. �Joel L. Pulliam, while renouncing the appointment, became, in fact, the real executor, and managed the whole business to that es- tent, as shown by the proof, that J. J. Pulliam was only nominally the representative of the estate, and, the former being an experienced and able lawyer, the nominal executor the more readily trusted every- thing to him. These notes so specifically given to the plaintiff were placed in his bands or came into his hands by reason of this relation, and in his capacity as attorney he sued for and collected them. Being a creditor of his father's estate, he applied the money to the payment of his debt after the statutes which protect dead men's estates had operated to forbid the payment. It seemed to me at the hearing that the plaintiff's only remedy was against the executor ; that there was no privity between her and Joel L. Pulliam;' and that in analogy to the ordinary statute of limitations money paid on a barred debt could not be recovered. But here the creditor was not simply a creditor receiving payment of his debt ; he was more than this. He had been named in the will as executor, and, while not such ��� �