Page:Federal Reporter, 1st Series, Volume 10.djvu/57

VVhhUM V. PULLIAM. 4cb �But, wbatever the rule in a Tennessee court of equity, there can be no doubt in the federal courts that the will is the extecutor'a law, and its trusts are all binding on him. Lewis v. McFarland, 9 Granch, 151; Potter v. Gardner, 12 Wheat. 498; Boyce v. Grundy, 9 Pet, 275 ; Fenwick v. Chapman, Id. 461; Peter v. Beverly, 10 Pet. 532; Bank of U. S. V. Beverly, 1 How, 134; Taylor v. Benham, 5 How. 233; Lewis V. Darling, 16 How. 1; Vaughn v. Northrop, 15 Pet. 1. The argument is made that the creditors, not being bound by the order of appropriation of assets made in the will, could have subjected these notes to their debts, and that this executor has only done what by law he could have been compelled to do, and therefore has wronged no one. It may be doubted on the foregoing authorities whether the creditors could do this to the injury of the plaintif, and there are many expressions by the supreme court of the United States in these cases that would justify the holding that even creditors can be con- trolled in their rights to the personalty by forcing them to exonerate the one fund to which this plaintiff must look for her satisfaction. But creditors took no steps to obstruct the intention of the testator. They did not set up any claim of this kind, and did not force the executor to disobey the will. His duty was to execute it according to its terms. He need not pay the legacy until he knows it will not be needed to pay debts; but he has no authority to change the order of appropriation mentioned in the will. The creditors could take eare of themselves. �In Gaines v. New Orleans, 6 Wall. 642, 713, the purchasers of the testator's land sought to protect their title bj showing that creditors were entitled to it under the administration laws, but the court says "they cannot substitute themselves for the creditors of the estate and use them as ameans to get protection." The same principle applies here. This executor cannot protect himself against a breach of trust by showing that creditors had remedies against the trust which they did not set up. The law imposed on him an impartial administra- tion of his trust. �I am therefore of the opinion that the defendant J. J. Pulliam is liable to the plaintiff for a failure to sell the lands in Arkansas under the powers granted to him by the will for that purpose, in order that he might exonerate her legacy by applying the lands first to the pay- ment of the debts. �The extent of his liability will be now eonsidered. By this will the lands were converted into personalty for the payment of debts, and are to be regarded, for all the purposes of this case, as money at the ��� �