Page:Harvard Law Review Volume 32.djvu/371

PROBLEMS IN PROBATE AND ADMINISTRATION 335 ciary seems entirely defensible both at law or in equity, despite his alternative right to hold the personal representative for a devas- tavit}'^'^ The legatee 'holds without consideration what is equitably due the creditor; he is unjustly enriched at the latter's expense. This right, too, shoiild be the only way of enforcing the interest of the creditor. To allow the personal representative to recover for the person best entitled and a second action by the latter against the representative is circuitous. The executor's or adminis- trator's right should exist only when he has been obHged to make the creditor whole, and is, therefore, the real party in interest. And when he is the real party in interest the representative should secure a refund, unless, indeed, he has paid with conscious disregard of a claim due and payable or reasonably sure to become payable. No equitable or quasi-contractual principle allows recovery where such a flagrant violation of duty occurs. So far as his interest is concerned he has made in effect a pure gift, though of course this cannot prejudice the creditor's direct right against the overpaid beneficiary. Yet if the plaintiff has been merely negligent, he should recover both in equity and at law. The defendant has something for which he has paid nothing, and which after the plaintiff has been mulcted by the creditor for devastavit equitably belongs to the representative. If the creditor's right is imknown to the personal representative at the time of payment, the situation is analogous to those cases where money paid under a mistake of a present existing fact may be recovered. ^^^ If payment is made when the existence of a contingent claim is known, but is thought too doubtful of maturity to be regarded, the creditor should never- theless recover. It is as inequitable for the beneficiary to keep the money when he has received it under an erroneous impression as to the future, as where a mutual mistake as to the present has in- duced the payment.^^^ The liabiHty at law is in the common ^^ See the analogous case of cestui que trust's remedy against donee of trust res. Perry, Trusts, 6 ed., §§ 217, 225, 346, 828; Ames, Lectures on Legal History, 255; 27 Col. L. Rev. 283. ">* Keener, Quasi Contracts, c. 2. ^' Compare cases where one party has been allowed to recover money paid under a contract in return for a promise which the other party has wholly failed to perform. Towers v. Barrett, i T. R. 133 (1786); Squire v. Tod, i Camp. 293 (1808); Nash v. Towne, 5 Wall. (U. S.) 689 (1866); Janulewycz v. Quagliano, 88 Conn. 60, 89 Atl. 897 (1914); Trenkle v. Reeves, 25 111. 214 (i860); Lodi ;;. Goyette, 219 Mass. 72, 106 N. E. 1012 (1914); Vallentyne v. Immigration, 95 Minn. 195, 103 N. W. 1028 (1905);