The defendants denied that the plaintiff had exhausted the assets in his hands, objected that he had not pursued the directions of the acts of the General Assembly in relation to executors and administrators, insisted that he should be held to strict proof of the allegations of his bill, and claimed the benefit of every legal objection to his recovery.
The plaintiff filed with his bill a copy of the inventory and account of sales of the estate of his testator, which he had returned to the county court, and also a schedule of the debts paid by him in the course of administration. No testimony was taken by either party, and the cause was heard upon the bill, answers, and (552) exhibits. The plaintiff has not made out a case which, according to the rules of this Court, entitles him to relief. When an executor has voluntarily paid legacies, he is not in general permitted to institute proceedings against the legatees to refund. As it is his folly to make such payments before the amount of the estate can be ascertained, or his negligence in not acquainting himself with its amount, when that information may be obtained, neither of these grounds will entitle him to the interference of this Court, and for that purpose subject the legatees to the inconvenience of an account of the administration of the assets. *Page 438 There are certainly, however, excepted cases in which the executor can demand this relief. If debts be afterwards made to appear of which debts there was no notice when the legacies were paid, or if any casualty which could not have been reasonably anticipated has, without fault or negligence in the executor, destroyed what was kept for the payment of the debts — these matters, arising subsequently to his settlement with the legatees, may give him an equity to call on them to refund what he needs for the satisfaction of creditors. But then the matters constituting this equity must be distinctly set forth in his bill, for obvious reasons. One is to show the right of the plaintiff to have what he asks of the court, and another is to enable the defendants to put in issue the matters upon which that right depends. The bill in that case is wholly insufficient. It sets forth no accident which has destroyed the estate or impaired the value of the assets, and it does not charge what debts, if any, have been demanded since the payment of the legacies, of which the executor then had no notice. Had the bill, however, been sufficient, no relief could be given unless its material allegations (553) were either admitted or proved. Here the statement in the bill, vague as it is, that the amount of debts exceeded the assets retained by the executor, is wholly denied; the presumption of the law is against it; and there is no evidence of any sort to support the allegation or to contradict the presumption.
The bill must be dismissed, and at the costs of the plaintiff. As it is possible, however, that the plaintiff may have rights which can be shown on a proper bill, this dismission is directed to be made without prejudice.
PER CURIAM. Bill dismissed.
Cited: Alexander v. Fox, 55 N.C. 108; Stack v. Williams, 56 N.C. 15;Donnell v. Cooke, 63 N.C. 229; Bumpass v. Chambers, 77 N.C. 359; Lylev. Siler, 103 N.C. 266.