Delamothe v. Lanier

2 N.C. 413

• Court: Supreme Court of North Carolina
• Decided: January 15, 1816
• Status: Published

Opinion

Taylor, C. J.

delivered the Judgment of the Court:

The duty of an Executor would be attended with infinite peril, if he could not safely pay simple contract debts before he has notice of a bond; for then a bond creditor might withhold his claim, till all the assets were exhausted in the payment of simple contract debts, and compel the executor to pay de bonis propriis.

But the rule is, that an executor may pay debts of an inferior nature, before those of a superior, of which he has no notice; provided such payment is made without fraud. In debt on bond, the defendant, being an executor, pleaded a judgment had against him on a simple contract debt ultra, &c. and upon demurrer, the plea was holden good. Davis v. Monkhouse. Fitzg. 76.

But even notice of the bond in this case, could not, it is believed, have bound the assets before judgment, in exclusion of simple contract creditors; because it was not for the payment of a sum certain, but depended upon a contingency, whether the testator’s estate would ever become chargeable with it. For until the appellant failed to prosecute the appeal with effect, and neglected to perform the judgment of the appellate Court, the bond was not fofeited. It has accordingly been decided, that a contingent security, as a bond to save harmless, shall not stand in the way of a debt by simple contract. 2 Vern. 101. We are therefore of opinion, that the evidence of payment of inferior debts was properly received in this case; and that the verdict for the defendant ought to remain.