
    Kippen and Company v. Carr’s Executor.
    Wednesday, Jan. 5th, 1814.
    I. Executors Liability to Creditors tor Assets Paid Legatees. — An executor cannot defend himself against the suit of a creditor, by shewing that, before he had notice of the plaintiff’s demand, he paid oyer the assets to the legatees of the testator.
    See Burnley v. Lambert, 1 Wash, 313.
    In the year 1806, an action of debt was brought by George Kippen & Company in the county court of Albemarle against Garland Carr, surviving executor of Samuel Carr, deceased, on a bond executed by the testator. The defendant pleaded payment; after which, the cause being removed by certiorari to the superior court of law, he filed an additional plea of plene administravit. A jury was impanelled to try the issues joined, and found the first issue in favour of the plaintiffs, but, by consent of parties, was discharged from rendering a verdict on the other ; whereupon a case was agreed, “that the defendant’s testator departed this life in the year 1777 ; that the defendant, in the year 1788 or 1789, having had no notice of the existence of this debt, proceeded to pay over to the legatees the assets then remaining in his hands, which amounted to more than the debt.”
    On this case, judgment was given against the plaintiffs, who thereupon obtained a writ of supersedeas from a judge of this court.
    *Wickham for the plaintiffs.
    Wirt for the defendant.
    
      
      See monographic note on "Executors and Administrators” appended to Rosser v. Depriest, 5 Gratt. 6.
      The principal case is cited in McGlaughlin v. McGlaughlin, 43 W. Va. 238, 37 S. E. Rep. 378, for the proposition laid down in the headnote.
    
   The following opinion of this court was delivered by

JUDGE ROANE.

“The court is of opinion that the judgment of the Superior Court, rendered upon the case agreed between the parties in this cause, is erroneous in this, that the defence therein set up in bar of the appellant’s demand is not sufficient in law to bar or preclude the same ; — the rule being that, as a testator may be bountiful as well as just in the disposition of his estate, so his legal representatives are the proper judges of his ability in that particular ; and that their ability to pay his debts as well as legacies is acknowledged by their delivering up legacies to those entitled thereto; — and, also, because the law, foreseeing that there might be dormant debts not known to the executor or administrator at the time of his payment of the legacies, has provided a mean by which he is indemnified against the same. On this ground, the judgment is reversed with costs ; and judgment is to be entered for the appellant according to the verdict of the jury.”  