Oakey v. Rabb's Executors

1 Free. Ch. 546

• Court: Mississippi Chancery Courts
• Decided: July 1, 1844
• Status: Published

Opinion

The Chancellor.

This case is submitted on bill and answers. The bill requires the defendants to answer what estate of Rabb they received, and what has become of the same. This interrogatory renders that part of the answer which states that the assets which came to their hands have been exhausted in the payment of the debts of their testator evidence against the complainants, and as there is no evidence to disprove it, it must be taken as true. And as the question of whether they have or have not assets constitutes the only ground upon which they could be made liable to complainants, there would seem to be no ground left upon which the complainant can ask a decree. The answer omits, it is true, to answer many of the allegations of the bill. The only effect of this is, to throw the burden of proof upon the complainant, as to those facts not admitted or denied. The complainant might have taken exceptions to the answer. That the payments made to private creditors, in exclusion of partnership creditors, was right, seems to be settled by the authorities. In administering the assets of an estate, private property is to be first applied to the payment of private debts, and where it constitutes the only fund out of which payment can be had, partnership debts are to be postponed to private debts. See Ridgely v. Carey, 4 Har. & McHen. 167.

The bill must be dismissed at the complainants’ costs.