Wilson v. Lloyd ex rel. Osg/Dissent Johnson

Mr Justice JOHNSON dissenting.

As I understand the decision just delivered, it affirms a principle to which I certainly cannot yield my assent.

As the will charges the real estate as well with the maintenance and education of the children as the payment of debts, and there does not appear to have been at any time in the administrator's hands a sum sufficient to pay off his whole debt; I am satisfied that it is not a case of extinguishment: and that the payments made to the maintenance and education of the children, and the satisfaction of debts of an inferior order, are not to be imputed to the administrator as payments upon his own bond. They were voluntary payments, it is true, but they were made in pursuance of the will. But as to all other sums arising out of the personalty, and which were not applied to either of those purposes, but in fact sunk and wasted in the administrator's hands, I am clearly of the opinion that they are to be imputed to him as payments on his own bond; and that pro tanto, he could not be permitted to apply the proceeds of the real estate to the satisfaction of his debt; it was in fact a repayment on a debt which he knew to be satisfied.

And as to the amount paid, respectively, to the maintenance and education of the children, having an interest in the proceeds of the realty; I have no idea that they can be permitted to come upon the sureties of the administrator, for the amount so paid on their account. Indeed, upon the whole, it appears to me to be one of those cases of common misfortune in which the court ought to leave the parties as it finds them. If the personal assets were in fact in existence, it would be a different case; and there might be an equity in the heirs now to come upon the assets for indemnity; supposing that they might originally have compelled the administrator to apply the personalty in relief of the real estate. But when the assets are in fact wasted, I cannot conceive that a court of equity would ever compel the sureties to pay up the administration bond for the relief of the heirs. Their liability is legally confined to the demands of creditors and distributees alone: and I can see no equity in subjecting them directly or indirectly to the general equity of the heirs, in stretching that liability beyond its strict legal limits.