PROBLEMS IN PROBATE AND ADMINISTRATION 333 to compel him to refund." This case has been followed in two Eng- lish decisions where the personal representative has paid the legatee with no notice of the debt, or, where, though aware of a possible liability, reasonably felt it to be so uncertain as not to warrant with- holding from the legatee his due.^^^ In these three cases the repre- sentative had not secured a decree protecting him in distribution, and had been obliged to pay the creditor out of his own pocket. Alexander v. Fisher ^^^ squarely follows the last two English cases, and the principle of the Enghsh law is recognized in Stokes v. Goody- koontz ^^^ and Lewis v. Overhy}^^ In Buchanan v. Pue^^^ the executor who was not blameworthy secured a refund even before he had paid creditors."^ If the payment is made under a mistake of law, it would seem that generally recovery would not be allowed.^^* A few jurisdictions, which, with more reason, make no distinction between mistake of fact and mistake of law compel the beneficiary to disgorge.^^^ In the United States the personal representative must have acted prudently in distributing the property or he will not be allowed to recover.^^" 112 Jervis v. Wolferstan, L. R. 18 Eq. 18 (1874); Whittaker v. Kershaw, 45 Ch. D. 320 (1890). 1" 18 Ala. 374 (1850). "* 126 Ind. S3S, 26 N. E. 391 (1890). "6 31 Gratt. (Va.) 601, 622 (1879). "» 6 GiU. (Md.) 112 (1847). "^ In the cases in which the representative has sued successfully it has generally appeared that he had already paid the creditor who had been overlooked. The lan- guage of several of the opinions assumes, however, that he could recover by way of exoneration as well as by way of reimbursement. See also Wolf v. Beaird, 123 lU. 585, IS N. E. 161 (1888); Morris v. Porter, 87 Me. 510, 53 Atl. 15 (1895); Walker v. Hill, 17 Mass. 380 (1821). "8 Phillips V. McConica, 59 Ohio St. i, 51 N. E. 445 (1898); Scott v. Ford, 52 Oreg. 288, 97 Pac. 99 (1908); Shriver v. Garrison, 30 W. Va. 456, 4 S. E. 660 (1887); Rogers V. Ingham, 3 Ch. D. 351 (1876). "» See Northrop v. Graves, 19 Conn. 548 (1849); Culbreath v. Culbreath, 7 Ga. 64 (1849). Compare Prince de Beam v. Winans, in Md. 434, 74 Atl. 626 (1909); Livesey v. Livesey, 3 Russ. 287 (1827); Dibbs v. Goren, 11 Beav. 483 (1849). 120 See Clifton v. Clifton, 54 Fla. 535, 45 So. 458 (1907); Clark v. Truslow, 161 App. Div. 675, 146 N. Y. Supp. 750 (1914); Donnell v. Cooke, 63 N. C. 227 (1869); Clark i;. WiUiams, 70 N. C. 679 (1874); McEndree v. Morgan, 31 W. Va. 521, 531, 8 S. E. 285 (1888). See Harris v. White, 2 South (N. J.) 422 (1819); Edgar i». Shields, i Grant (Pa.) 361 (1856). But compare Atwood v. Lester, 20 R. I. 660, 40 Atl. 866 (1898); Wetmore v. Porter, 92 N. Y. 76 (1883). And in the case of a trust, the trustee guilty of a conscious breach of trust, may without joining the cestui que trust bring a bill in equity against the transferee to set aside the transfer and recover the res. Franco
