PROBLEMS IN PROBATE AND ADMINISTRATION 339 unjust enrichment of the beneficiary is as clear in one case as in the other. The distinction is simply indefensible. Second, if the assets were originally sufl&cient to satisfy all legacies, but were subsequently wasted by act of the personal representative or other- wise, the legatee already paid may keep. The reason commonly given is that a dilatory beneficiary should not prejudice a more diligent who may have spent the bounty. If this means anything, it represents a combination of the defenses of laches and change of position. It is a sufficient answer to say that if there has been change of position by the defendant before notice in any of the cases where a refund is demanded it should be a complete defense both at law or in equity.^^^ But what of the many cases where there has been no change of position? The laches of the plaintiff should then not bar him. The defendant, if he disgorge what he has received or its equivalent, suffers no loss, for he has merely given up that which he has been holding without consideration and which would have gone to another had it not been for his windfall. Other decisions are put on the ground that the satisfied beneficiary has received no more than what was due him.^^^ But until every beneficiary is paid his share, it is only fair that each should bear proportionately the loss caused by depreciation of assets in the hands of the representative due to causes to which they are not parties. IV If an executor or administrator sues an overpaid creditor where the assets have unexpectedly proved deficient for the payment of creditors, he may recover.^^ No case has been found where an unsatisfied creditor proceeded against an overpaid creditor. But upon principles considered above the right should exist. 1*^ See infra, page 344. i*! Lupton V. Lupton, 2 Johns. Ch. (N. Y.) 614, 626 (1817); Walcott v. Hall, i P. Wms. 495, note. ^^ Mansfield v. Lynch, 59 Conn. 320, 22 Atl. 313 (1890) (semble); Wolf v. Beaird, 123 111. 585, 15 N. E. 161 (1888); East V. Ferguson, 59 Ind. 169 (1877); Tarplee v. Capp, 25 Ind. App. 56, 56 N. E. 270 (1900) (but see Beardsley v. Marsteller, 120 Ind. 319, 22 N. E. 315 (1889)); Morris t). Porter, 87 Me. 510, 33 Atl. 15 (1895); Walker V. HiU, 17 Mass. 380 (1821); Heard v. Drake, 4 Gray (Mass.) 514 (1855); WoodruJEE V. Claflin Co., 198 N. Y. 470, 91 N. E. 1103 (1910); Rogers v. Weaver, 5 Ohio, 536 (1832); Thorsen v. Hooper, 57 Oreg. 75, 109 Pac. 388 (1910). Carson v. M'Farland, 2 Rawle (Pa.) 118 (1828); Findlay v. Trigg, 83 Va. 539, 3 S. E. 401 (1887); Staples V. Staples, 85 Va..76 7 S. E. 197 (1888), contra.
