Page:Harvard Law Review Volume 32.djvu/373

337 PROBLEMS IN PROBATE AND ADMINISTRATION 337 with their amount and value. He ought to know, and is chargeable with knowledge, of the amount of claims against the estate when he makes a payment on account of a distributive share. It would be a great hard- ship upon distributees, to whom an administrator has voluntarily made payments on accoimt of their shares, if they may be called upon for re- payment after lapse of years. They may have spent it, or increased their style of living in entire good faith, and in ignorance of any over- payment." Here it is not clear whether the court rests its decision on the "voluntary" character of the payment or on change of position of the defendant. If, however, the executor paid under compulsion of suit, the English law allowed him to recover for the benefit of other legatees.^^* The legatee or distributee who sued the overpaid beneficiary neither in England nor this country had as easy a path as the claimant who was a creditor. The beneficiary must first exhaust the personal representative. If the latter had protected himself by paying under order of court or was insolvent, the beneficiary, provided the assets were originally insuSicient to pay his legacy, had indeed a right to demand relief.^^^ But if the assets, originally sufficient, had after payment to the defendant been accidentally destroyed, or wasted by the personal representative, the belated beneficiary had no remedy against the more diligent.^^® The use of the term "voluntary" is unfortunate and misleading. The personal representative is in just as unfortimate a position whether he pays without compulsion of suit or at the end of a judgment. If "voluntary" means a payment, when all the facts are before the payer and the right of the other beneficiaries than the one paid is clear, the result is well enough. There is in effect a pure gift. While the payer cannot then cut off without their con- sent the defrauded legatees or distributees, he loses his right to "* Newman v. Barton, 2 Vern. 205 (1690); Orr v. Kaines, 2 Ves. Sr. 194 (1750); Noellc. Robinson, 2 Vent. 358 (semble); Davis v. Newman, 2 Rob. (Va.) 664 (1844) (semble). 1'* Anon., I P. Wms. 495 (1718); Walcott v. Hall, i P. Wms. 495 n (semble); Lupton V. Lupton, 2 Johns. Ch. (N. Y.) 614 (181 7); Miller v. Stark, 29 S. C. 325, 7 S. E. 501 (1888); Uffner v. Lewis, 27 Ont. App. 242 (1900). "8 Walcott V. Hall, i P. Wms. 495 »; Fenwick v. Clarke, 31 L.J. Ch. 728 (1862); Peterson v. Peterson, L. R. 3 Eq. in (1866); Lupton v. Lupton, 2 Johns. Ch. (N. Y.) 614 (1817); Story, Equity Jurisprudence, § 92. But see Wallace v. Latham, 52 Miss. 291 (1876); Buffalo Trust Co. v. Leonard, 154 N. Y. 141, 47 N. E. 966 (1897).