LXXI. INDEMNITY by such of the RESIDUARY LEGA- TO EXECUTORS TEES under a Will as are ABSOLUTELY entitled, FOR REMIT TING AND GIVING TIME FOR PAYMENT OF DEBTS. THIS INDENTURE, made &c., BETWEEN —, [resi- Parties. duary legatees absolutely entitled], of the first part; [residuary legatees, trustees for persons incapable of assenting], of the second part; and A. B., of &c., C. D., of &c., and E. F., of &c., [the executors, who were also residuary legatees], of the third part. [Recital of the will—of Recital of will; the death of the testator and of the probate of his will.] AND of two debts WHEREAS part of the property of the said [testator] consists outstanding; of two bonds, one for £, and the other for £, from G. H. AND WHEREAS it has been represented to the said of the adA. B., C. D., and E. F., that the said G. H. is unable to pay any part of the said sums of £- and £- -; and that an attempt to compel payment of the said sums of the testator, he is (a) If an executor release or remit a debt due to chargeable for a devastavit to the amount of the debt. ecutors, Pt. 4, Bk. 2, Ch. 2, sect. 2, tit. Devastavit. So, if he accept a composition for a debt, he is liable for the part he remits; or if he give time for payment of a debt, he is liable for the whole amount from his so giving time, whether all or any part of it is ultimately recovered or not. Id. See too, supra, p. 15, n. (s). If, however, the release or compromise appear to have been for the benefit of the estate, the executor will not be guilty of a devastavit; Blue v. Marshall, 3 P. Wms. 381; but the question, what is for the benefit of the estate, is so difficult to be determined, that no prudent executor will release or compromise a debt, unless upon an authority from all his cestui que trusts, or a sufficient indemnity. It is, however, the practice in modern wills to give the executors full powers to release, compromise, and give time for the payment of debts. See supra, pp. 14, 15. vantage to be derived for the estate by re Executors guilty of a devastavit for releasing or compounding a debt due to the testator. FOR REMIT TING AND FOR PAYMENT OF DEBTS. the debts, and deferring to sue for the other; of the agree ment by the legatees to authorize such remission, aud to indemnify the executors by the present deed; TO EXECUTORS £- —and £, or either of them, or any part thereof, would not at present be attended with any advantage, and GIVING TIME Would destroy the chance of ultimately recovering any part of the same sums; and that in the peculiar circumstances in mitting one of which the said G. H. is placed, it is not probable that, while he continues under the liability to pay the whole of the said sums of £ — and £- —, he will be able to pay either of them; but if he be released from the said sum of £—, it is probable that he will be able to pay the said sum of £, inasmuch as an opening in business is now presented to the said G. H., if his liability under the said bond for £ be discharged, while he is excluded from availing himself of such opening if he remains liable to both the said sums: AND WHEREAS under these circumstances the said several persons, parties to these presents, are satisfied so far as they have the means of judging, that it will be for the benefit of the estate of the said [testator] to cancel the said bond of the said G. H. for £, and to defer to sue upon the said bond for £- and the said several persons, parties to these presents of the first part, have agreed to authorize the said A. B., C. D., and E. F., so far as they the said several persons, parties to these presents of the first part, are respectively entitled to cancel the said bond for £-, and to defer to sue upon the said bond for £- -, and have also agreed to indemnify the said A. B., C. D., and E. F., in manner hereinafter mentioned against the claims of such of the legatees under the said will of the said [testator] as have not authorized the said A. B., C. D., and E. F. to cancel the said bond for £ or to defer to sue on the said bond for £; and the said several persons, parties to these presents of the second part, not being competent to consent, have agreed to execute these presents for the purpose of testifying that they respectively believe that the cancelling of the said bond for £--, and the deferring to sue on the said bond for £--, will be for the advantage of the estate of the said [testator]: AND WHEREAS it has been agreed that these presents shall contain the provisions and clauses hereinafter contained. NOW THIS -to contain the provisions inserted. FOR REMITTING AND GIVING TIME FOR PAYMENT OF DEBTS. Witnesseth covenant by the residuary legatees absolutely entitled to indemnify the executors for debt, and deremitting one ferring to sue for the other. INDENTURE WITNESSETH, that, in pursuance of TO EXECUTORS the said agreements and in consideration of the premises, each of them the said several persons parties hereto of the first part, so far as relates to his and her own acts and deeds, and the acts and deeds of his and her heirs, executors, and administrators, doth for himself and herself, his and her heirs, executors, and administrators, covenant with the said A. B., C. D., and E. F., their executors and administrators, by these presents, that they the said several persons parties to these presents of the first part respectively, and their respective heirs, executors, and administrators, or some or one of the same persons, their or some or one of their heirs, executors, or administrators, shall and will from time to time, and at all times hereafter, well and sufficiently save, defend, keep harmless, and indemnified the said A. B., C. D., and E. F., and each of them, their and each of their heirs, executors, and administrators, and their and each of their estates and effects, of, from, and against all actions, suits, losses, damages, costs, expenses, accounts, reckonings, claims, and demands whatsoever, for, upon account, or in respect of the said A. B., C. D., and E. F., or any of them, cancelling the said bond for £ or deferring to sue upon the said bond for £, or for, upon account, or in respect of any act, deed, matter, or thing in anywise relating to the premises. PROVIDED ALWAYS, and it is hereby agreed and declared between and by the parties to these presents, that no one of the said several persons, parties to these presents of the first part, shall be subject under the covenant herein before contained to the payment of any sum or sums of money exceeding altogether in amount the sum or sums of money he or she shall have actually received under the said will of the said [testator]; AND EACH of them the said several persons parties to these presents of the first part, so far as relates to his and her own acts and deeds, and the acts and deeds of his and her heirs, executors, and administrators, doth hereby for himself and herself, and his and her heirs, executors, and administors, covenant with the others and each of the others of them, the said several persons parties to these presents of Limitation of liability to the each legatee's amount of his own share of the testator's estate. Mutual cove nants of the le galees to contribute ratably to the indemnity. FOR REMIT TING AND FOR PAYMENT OF DEBTS. TO EXECUTORS the first part, their, his, and her executors and administrators, that each of them the said several persons parties to GIVING TIME these presents of the first part, his and her heirs, executors, and administrators, shall and will contribute his and her rateable share, which, according to the amount of his and her share under the said will of the said [testator], he and she respectively ought to contribute towards the indemnity of the said executors in pursuance of the covenant firstly hereinbefore contained; and in case any of them the said several persons parties hereto of the first part, their, his, or her heirs, executors, or administrators, shall pay more than they, he, or she ought to pay towards the indemnity of the said executors according to the amount of their, his, or her shares or share under the said will, shall and will pay to them, him, or her so paying more than their, his, or her rateable shares or share the excess which they, he, or she shall have paid towards the said indemnity over and above their, his, or her rateable shares or share, so that the several persons parties hereto of the first part, who shall execute these presents, may ultimately all contribute rateably to the said indemnity. AND EACH OF THEM THE SAID A. B., C. D., and E. F., doth hereby for himself, his heirs, executors, and administrators, covenant with each of the several persons parties hereto of the first part, his and her executors, administrators, and assigns, that each of them the said A. B., C. D., and E. F., shall and will bear his rateable share according to the amount of his respective share under the said will, of the loss arising from the cancelling of the said bond of £——, and of any loss which may arise by reason of deferring to sue upon the said bond for £: PROVIDED ALWAYS, and it is hereby agreed and declared between and by the parties to these presents, that the covenants hereinbefore contained shall bind such of the several persons named as parties to these presents, and entering into the same covenants respectively as shall execute these presents, notwithstanding that any one or more of the other persons named as parties to these presents shall not execute these presents. AND EACH OF THEM THE SAID several persons, parties hereto of the second part, doth hereby testify that Covenants by the executors to bear the loss ratably in proportion to the amount of their shares. Proviso that persons executing the deed shall be bound notwithstand ing others may not execute. Qualified assent of the le gatees who are FOR REMIT TING AND GIVING TIME FOR PAYMENT OF DEBTS. trustees for persons not competent to join. so far respectively as he has the means of judging, he be- TO EXECUTORS lieves that the cancelling the said bond for £— and the abstaining for the present from suing upon the said bond for £—, is the most advantageous course for the estate of the said [testator], but nothing herein contained shall be construed to be an authority from the said several persons parties hereto of the second part to the said A. B., C. D., and E. F., to cancel the said bond for £- or to abstain from suing upon the said bond for £, or to prevent them the said several persons parties hereto of the second part, or any of them, upon further information or upon further advice from disputing the propriety of cancelling the said bond for £, or of abstaining from suing upon the said bond for £- : Provided ALWAYS and it is hereby Provision as to agreed and declared between and by the said several per- expenses ratthe payment of sons parties to these presents of the first and third parts ably. respectively, that the expenses of negotiating, preparing, and executing these presents, and also the expense (so far as the same shall not be paid by the said G. H.) of a bond to be executed by the said G. H. to the said A. B., C. D., and E. F., for further indemnifying them against all actions, suits, claims and demands on account of cancelling the said bond for £, or abstaining from suing on the said bond for £, shall be paid and contributed ratably out of the shares in the estate of the said [testator], of the said several persons parties hereto of the first and third parts respectively who shall execute these presents. IN WITNESS &c. |