The opinion of the court was delivered by
Williams, Ch. J.The object of the orator’s bill is to obtain from the defendant, Harrington, a contribution towards the amount, which the estate of Buel has been compelled to pay to the children of Phineas Lyman, in pursuance of a decree of the court of chancery in this county, made at their January term, 1837. The orator’s intestate, Ozias Buel, the defendant, Isaac R. Harrington, together with Lyman King and Phineas Lyman, were appointed executors of the last will and testament of William C. Harrington, who died in the year 1814. They accepted the trust, and gave the required bond to the court of probate, administered upon the estate, made a settlement in the court of probate of their accounts as executors, and were credited for all the legacies mentioned in the will. Among other credits, Phineas Lyman was credited by the probate court for the sum of one thousand dollars and the interest thereon, being the *158legacy left by William C. Harrington to the children of the said Lyman. On the 18th of March, 1823, the executors, having produced satisfactory vouchers for the payment of all the debts and legacies, including the legacy to the residuary legatees, were acquitted and discharged of their trust, as executors. The children of Pirineas Lyman, after they arrived at full age, contested the payment of the legacy to them, and, for the recovery thereof, instituted a suit in chancery against all the executors of William C. Harrington, and, after a protracted litigation, succeeded in obtaining the decree against the executors, before mentioned, at the January term of this court, — as reported in 9 Vt. Reports 41. The amount of this decree the estate of Buel has been compelled to pay. It is admitted, that the other executors, Lyman and King, are insolvent.
In the case before us the proceedings in the suit in favor of the children of Lyman against the executors of Harrington are in evidence, and reference is had to that case, as reported in 9 Vt. Rep. 41. This only makes the decree, and the facts found, on which the decree was based, legitimate evidence in this case. Neither the observations of the learned judge, who pronounced the decree in behalf of the majority of the court, nor of the learned judge who dissented, can be treated as legitimate evidence at this time. It is sufficient to say, that the court found, that a legacy had been left to the children of Pirineas Lyman, who were the orators in that bill, that it had not been paid, that nothing had taken place to discharge the executors of Harrington from the payment, and that, particularly, as it respected Buel’s estate, his representatives were not protected by the commission of insolvency, which had issued for the purpose of ascertaining the debts against his estate, and the neglect to present this claim. Whatever was said about the misapplication of the funds applied equally to all the executors. They were liable for all the assets, which came into their hands. If they paid the residuary legatees without first paying the specific legacies, they would be liable for the latter. If they paid the speficic legacies, they were liable to the residuary legatees for all the remaining assets in their hands. If the funds were lost through the negligence, remissness, or insolvency, of any of the executors, inasmuch as they jointly proved the will, took out letters testamentary, and gave a joint *159bond, they.were all liable for what was thus lost, either to the specific or residuary legatees, who might fail of receiving their due proportion of the estate in consequence of such loss.
It was found in that case, and it is found in this, from the testimony taken, that Lyman, one of the co-executors, received funds of the estate, that he had sufficient to pay the legacy to his children, that he claimed to retain it on that account, that he received credit for the same in the probate court, that he neglected, or refused, to give the security required by the order of the Supreme Court, made at their December term, 1817, that he had wasted the funds of the estate to the amount of the legacy to his children, and had not paid them, and that he became utterly insolvent and so remains at this day. There is no reason, why the consequence of this should be visited alone on the estate of Buel, unless there has been some negligence, or remissness,' or improper conduct, on the part of Buel, in permitting Lyman to waste these funds, which should make him alone liable to bear the whole loss, or which would have made him liable to his co-executors, if the amount of the decree before mentioned had been "collected of them, instead of being collected from his estate.
From a careful examination of the testimony we can discover no such negligence, remissness, or impropriety, in the conduct of Buel, in' relation to this estate, as to make him alone liable for the failure of Lyman. It is claimed, that he acted solely as executor; and for this the testimony of King is relied on. Waiving the consideration, whether King is a competent witness, there is nothing in his testimony, which alters the relative situation of the executors. The contract, to which King alludes, could not prevent the other executors from managing any part of the estate, if they thought proper. Nor could Buel, by virtue of any such contract, call any funds out of the hands of the other executors, or forbid or prevent them from performing any duty, which they thought proper to take upon themselves. It appears, that both Lyman and the defendant, Harrington, had the care, custody and management of some part of the estate. This contract could only make Buel the agent of the other executors, and not liable, except he acted improperly in his agency. Over such part of the estate of William *160C. Harrington, as was in tbe hands of Lyman at the decease of Harrington, Buel could have had no control.
There was nothing unwise, or imprudent, in Buel, in delivering to Lyman, for collection, the notes and accounts belonging to the estate, when we consider, that Lyman was then in good circumstances, and his peculiar relation to the testator, — being his partner and brother in law. It was not only prudent, but highly proper, that he should be entrusted with the collection of the debts in favor of the estate. And farther, taking into consideration, that Lyman was a creditor of the estate to the amount of over two thousand dollars, we do not see, that there was any impropriety in Buel, in passing over to Lyman, whether for collection, or in payment of his claim allowed against the estate, the note against Samuel Campbell, in January, 1817, — especially when we advert to the fact, that on the settlement of Lyman’s account, after debiting him with the Campbell note, it left but an inconsiderable balance against him, without crediting him with the legacy; and when he was credited with the legacy, he was a creditor of the estate. There was no misconduct, or carelessness, in delivering to him the Campbell note, whether for collection, or otherwise, under the circumstances, then existing.
Until the order of the Supreme Court, made in December, 1817, there could have been no want of prudence, or care, in permitting Lyman to retain, out of the debts in his hands for collection, or out of the debts due to the estate, an amount sufficient to pay his debt allowed by the commissioners, his charges against the estate, and the legacy to his children, even if it had been in the power of Buel to have prevented it. After the order made by the Supreme Court, in 1817, it does not appear, that Lyman received any thing farther, belonging to the estate, and there was no power in Buel, or the other executors to compel him to give the security required by that order; and we see no reason whatever for visiting on the estate of Buel the whole loss, occasioned by the insolvency and mismanagement of his co-executor, Lyman. The order made by the court of probate, crediting Lyman for the legacy to his children, and the exertions of Buel, to exonerate the estate from all liability on account of that legacy, clear him from the imputation of having improperly entrusted Lyman with the funds belonging to the estate of William C. Harrington.
*161The conclusion, from the whole evidence, is irresistible, that the estate of Buel was made liable in consequence of his being a co-executor with Lyman, and for property wasted by Lyman without any fault, or neglect, on the part of Buel; and the result is, that his administrator is entitled to a contribution from the defendant, the only remaining solvent executor. The decree of the chancellor, to this effect, is affirmed, with additional cost; and the case will be remanded .to the court of chancery, to execute this decree.