The opinion of the Court was delivered, by

The executors of Martin Weiser, deceased, having filed their account, had in their hands a balance due to Catharine Yost, one of the daughters, amounting to $357.22. This sum they paid to the husband of Catharine, taking his release, and a covenant to refund his proportion of what might be needed to pay debts. A debt was afterwards recovered, which Martin J. Weiser, one of the executors, paid out of his own pocket. Yost was insolvent, and did not refund. The testator had devised to his daughter Lydia, certain real property for life, and in case of her death without issue, it was to revert to his sons and daughter, and be equally divided between them. Lydia did die without issue, and Martin J. Weiser having also died, the surviving executor sold the real property mentioned, and brought the proceeds into Court, where it was distributed among all the children. But the executrix of Martin J. Weiser claims the share of Mrs. Yost, by way of making his estate whole for the sum overpaid to and never refunded by Yost, who is also dead.

Here were two distinct funds, one arising out of personal property and one out of real estate; one payable by the executor immediately, and the other not demandable, except upon a contingency which might never happen. .In these circumstances, the husband demands payment of one fund, the one which he had then a right to claim, and which the executor was compellable to pay; and the executor pays it, and takes the husband’s personal covenant to pay it back in case it should afterwards turn out that he would need it for the payment of debts. All this does not amount to a payment of the wife’s share of the other fund. It is plain that neither she, nor her husband, nor the executor, meant the payment of her share of the personal property as a payment of her interest in the real estate. It was not intended to be a reduction of it into possession by the husband, nor was it an actual reduction. Why should the law presume that the parties did that which they neither did nor thought of ? What is there here to make it necessary that we should treat the transaction otherwise than according to its real import ? The husband claimed the wife’s share of the balance then in the executor’s hands, and got it; got, if you please, more than he was entitled to; but all he received was paid him on that score alone. He did not meddle *426with the interest she would have after her sister’s death, nor touch it. As the law then stood, he might, perhaps, have pledged it, to make good his refunding contract, just as he could .have pledged it for any other liability; though that is more than doubtful, for it was then a contingent interest in real property. But he did not do so.

The executor has no right to reimburse the estate of his deceased co-executor out of this fund; and the Court below was therefore right in awarding to Mrs. Yost her full share of it.

Decreh affirmed.