
    W. T. Carter vs. Joseph Robbins, Ex’r.
    Paying the debts of a deceased with one’s own money, does not make one executor de son tort.
    
    BEFORE O’NEALE, J., AT CHESTER, FALL TERM, 1854.
    The report of bis Honor, tbe presiding Judge, is as follows:
    
      “ This was a sum. pro. on a note under seal of Thos. Robins, deceased, the alleged testator of the defendant. The note was proved in the ordinary way. The defence was, that the defendant.yas not executor. The plaintiff averred that the defendant was executor de son tort. This averment was attempted to' be sustained in two ways: 1st., by the possession of a negro the property of the deceased. It appeared by the deed of the defendant to his son, the deceased, that the limitation over after his death was to himself, on the contingency of his dying without issue. I thought the limitation good, and held therefore, that the defendant was not chargeable in that respect. But in the second place, the plaintiff proved that the defendant paid to Hyatt a debt of the deceased. When it was first presented he said he had not then funds, but he would pay it, if he had to pay it out of his own funds. He subsequently settled it by giving his own note for it, with other debts which he owed to Hyatt. This particular note (three years past,) when presented by Robertson to the defendant, he said he would pay. Subsequently, to Hyatt, by whom it was again presented, he refused payment, saying he had no funds, and he believed the debt not to be just.
    “ I thought the payment of a debt the ordinary evidence of executorship, and when followed by evidence of a promise to pay the debt, the two together made out enough to satisfy me that defendant was an executor de son tort. I therefore decreed for the plaintiff.”
    The plaintiff appealed, and now moved this court to reverse the decree on the grounds :
    1. Because there was no proof that any assets of Thomas Robins, deceased, came into the possession of the defendant.
    2. Because the payment of a debt of five dollars, stating that it was paid out of his own money, and a promise to pay the debt in suit, were no evidence of such an intermeddling with the assets of the deceased, as to constitute the defendant an executor de son tort.
    
    
      McAliUy, for the motion.
    Herndon, contra.
   The opinion of the Court was delivered by

WaRDLaw, J.

It is plain that there can be no intermeddling with assets where there are no assets; and that paying the debts of a deceased with one’s own money, does not make one executor de son tort. Although the defendant in this case may have had funds of his deceased son, and from them may have paid' one debt, and promised to pay another, we see no' evidence of this, and therefore direct a new trial.

Motion granted.

O’Neall, WhitNer, GloveR and MüNRO, JJ., concurred.

Motion granted.  