Leroy H. Mundy ads. James M. Harrison, 1 Dud. 34

Curia, per Harper, Ch. I do not understand the facts to be disputed, which are stated in the defendant’s answer; of the truth of which indeed the. transaction themselves carry intrinsic evidence. Defendant had in his hands the sum of one thousand three hundred and twenty-seven dollars and twenty-four, cents, which complainant was entitled to receive as administrator, with the will annexed, of Edward H. Harrison, deceased. Of this amount, defendant would have been entitled to receive back one-third, as one of the residuary legatees of the said Edward H.

Harrison, upon giving his bond to refund, in case of his dying without issue, in favor of devisees over, according to the will of the testator. Complainant came to an account with defendant, and received of him two-thirds of the amount in his hands, allowing him to retain the other third, to which he was entitled as residuary legatee, and gave him a receipt in full. He took no. bond in pursuance of the directions of the will. The object of the present bill is to recover of defendant the amount retained by him, or to compel him to give his bond.

If the complainant had had the money in his own hands, and paid it over to defendant, without requiring the bond, on what ground would he claim relief? It was in his power to have made it a condition of his paying the money over, that the bond should be given and not having done so, he must be held to have waived it. There is no showing of any mistake, ignorance, or fraud. By his neglect I suppose, he may have made himself liable to the devisees over. But this furnishes no ground for relief.

Even if the devisees over, could be entitled to maintain such a bill, he could claim no relief against his own act and his own neglect. But the case is just the same as if he had had the money in his hands and paid it over. As administrator with the will annexed, he might have recovered the whole amount of defendant, who could only have claimed to retain it as legatee, by complying with the condition of giving bis bond. Complainant, however, allowed him to retain it, and discharged him. It is the same thing as if be bad received the whole amount, and forthwith paid back one-third of it.

It is ordered and decreed, that with respect to this claim the Chancellor’s decree be reversed.