The opinion of the court was delivered by

The plaintiff has appealed from a judgment sustaining exceptions to the report of the referee and dismissing the complaint. The question turns on the construction and effect of a decree of the Ordinary, made June 22d, 1860, upon a settlement of the estate of Elijah Turner, to which L. A. Turner and John Turner, his executors, and all other persons in interest, were parties. The decree is as follows: “ It appears from the foregoing statements that some of the legatees have received largely over their shares; it is necessary, therefore, that they pay to the executors the amounts so overpaid, with interest, from October 22d, 1859; when this is done, it is ordered that the executors pay to those who have not received their full shares the amounts found to be due them in the foregoing statement, with interest, from October 22d, 1859.” The Circuit judge, overruling the referee, held that this obligation of the executors to pay was, under this obligation, altogether conditional upon their receiving back the amounts thus overpaid and decreed to be restored. It appears that L. A. Turner, one of the executors bound by this decree, died shortly after it was pronounced, and that such repayments as had been made under the decree by way of restoring the amounts overpaid, were actually paid to the surviving executor, and hence the court concluded that the defendant, the executor of this deceased executor, was not liable under the terms of the decree.

The question is, whether the decree created an absolute or a conditional obligation on the part of the executors. It is clear that postponing the time of payment until a future event that was certain to occur, did not prevent the obligation from being absolute. According to the form of this decree, the time of payment was fixed when the over-payments should be refunded. We are not at liberty, however, to overlook the nature of the *599•obligation imposed by this decree in putting a construction on its language. It established the proposition that there had been a devastavit affecting both of the executors, thus laying a ground for personal liability, and its object was to afford a remedy for this devastavit. It is entirely inconsistent with this object to hold that the executors are only liable on this condition as to the extent of the repayment of the money. Such a construction must be avoided if it can be done consistently with the terms of the decree. In order to sustain the conclusion of the Circuit Court it would be necessary to hold that neither of the executors was liable for any sum until the whole of the over-payment was refunded, notwithstanding part thereof might have been already refunded and in the hands of the executors; and, also, that only -the executor who received this fund could be called upon to distribute it. If we are to look to the form of the decree alone, and pay no regard to its purpose, then it may be that the contingency on which the executors are to pay is a single event? namely, the last payment on the full amount to be returned. In that case the liability could not arise until the last dollar wits paid, and no provision was made for distributing such sums as may have already been collected by the executors under the •decree. Such a construction is manifestly absurd. It was clearly intended that if the executors should not collect the whole amount required to be refunded that they should at the least distribute so much as they had in fact collected. This shows that the decree must be read in reference to its obvious purpose, and as the parties are in a court of equity in a case based upon this decree it can well be done. .Looking with that purpose, it is clear that as there had been a devastavit it must have been intended that the whole amount should be paid absolutely at same time by the executors. This conclusion is consistent with the argument of the decree that the executors should pay. the whole sum overpaid, and not only such sum as they receive by way of refunding the amount over-paid, and, also, that they should pay interest on the whole sum over-paid from a day prior to the decree, although allowed to reimburse themselves pro tanto out of interest paid on the sums refunded. The conclusion must then be that it was intended to allow a reasonable time for the executors to call in the over-payments, and when such reasonable time had elapsed *600that they should make the payments adjudged absolutely against them by the decree. No question is made as to the sufficiency of the time that has elapsed to satisfy such construction, and,, therefore, the executors must be regarded as personally indebted at the date of the decree in the amount adjudged due for such over-payment, although payable at a future day. This view would render the estate of the deceased executors liable for the-amount adjudged by said decree.

It follows that the judgment of the Circuit Court must be-reversed, and the report of the referee confirmed, and the cause remanded to the Circuit Court for a judgment in accordance-with the report of the referee.

Decree reversed.