Page:Harvard Law Review Volume 32.djvu/372

336 336 HARVARD LAW REVIEW counts, and is purely quasi contractual. According to principles of quasi contracts negligence of the plaintiff is no defense.^^" The same rule should apply in equity, though here the authorities are not so clear that negligence of the plaintiff does not bar him.^^^ in The law of both countries is more favorable to the defendant when refund is demanded of a beneficiar}^ to reimburse a legatee or distributee who has not received his due. If the executor or admin- istrator sues, he cannot recover if he paid voluntarily — not under compulsion of suit. The distinction is not taken between cases where he pays under a misapprehension as to the existence of other beneficiaries or as to the size of the fund at his disposal on the one hand, and where on the other hand he disburses with full knowledge of law and facts. As some judges put it, whenever an executor pays a legacy the prestmiption is that he has sufficient assets to pay all.^^^ In Montgomery's Appeal,^^^ the court, in a case where the executor sought a refund for creditors, said: "When an administrator pays out money, he is presumed to know the condition of the estate. The assets are in his hands, and he is familiar Brokaw v. Duflfy, 165 N. Y. 391, 59 N. E. 196 (1901); Ohio Trust Co. i". Allison, 243 Pa. 201, 89 Atl. 1137 (1914)- And cases where the defendant has been compelled to restore what he has received upon his repudiation of the contract though he has not actually failed to perform it. Drake v. Goree, 22 Ala. 409 (1853); Smith v. Jaccard, 20 Cal. App. 280, 128 Pac. 1023 (191 2); Ryan v. Dayton, 25 Conn. 188 (1856); Elder v. Chapman, 176 HI. 142, 52 N. E. 10 (1898). And cases where after partial or complete performance on the part of the plaintiff he has been allowed to recover what he has parted with upon the defendant's per- formance becoming excusably impossible. The Allan wilde, 247 Fed. 236 (191 7); Bibb V. Hxmter, 2 Duv. (Ky.) 494 (1866); Butterfield v. Byron, 153 Mass. 517, 27 N. E. 667 (1891); Joyce v. Adams, 8 N. Y. 291 (1853); Williams v. Allen, 10 Hxmip. (Tenn.) 337 (1849); Logan v. Le Mesurier, 6 Moo. P. C. 116 (1847); Krell v. Henry, 18 T. L. Rep. 823 (1902); Lmnsden v. Barton, 19 T. L. Rep. 53 (1902) (semble). Com- pare Alfred Marks Realty Co. v. Hotel Hermitage, 156 N. Y. Supp. 179 (1915). 130 Kelly V. Solari, 9 M. & W. 54 (1841); Appleton Bank v. McGilvray, 4 Gray (Mass.) 518 (1855). See infra, page 340. "1 2 PoMEROY, Equitable Jurisdiction, § 856. 132 Newman v. Barton, 2 Vem. 205 (1690); Orr v. Kaines, 2 Ves. Sr. 194 (1750-51); Coppin V. Coppin, 2 P. Wms. 291, 296 (1725). See Davis v. Newman, 2 Rob. (Va.) 664 (1844). But compare Gallego v. Atty. Gen., 3 Leigh (Va.) 450, 488 (1832); Northrop v. Graves, 19 Conn. 548 (1849); Culbreath v. Culbreath, 7 Ga. 64 (1849). ^ 92 Pa. 202, 206 (1879).