
    S. W. Oakey & Co. v. Rabb’s Executors.
    Where the complainant’s hill required'the defendants, who were executors, to answer what estate of their testator they had received, and what had become of the same; and the defendants answered that the assets which came to their hands had been exhausted in the payment of the debts of their testator; held, that the answer was evidence against the complainant, and as there was no testimony disproving it, the answer must be taken as true, and the bill dismissed.
    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 ones.
    This bill was filed against the executors of P. T. Rabb to compel them to pay the complainants three promissory notes, two of which were made by Carothers and Rabb, in the lifetime of Rabb,, and the other indorsed by Carothers and Rabb to the complainants. After the death of Rabb, these notes were reduced to judgment against Carothers, and the executions returned nulla bona. The bill charges that the executors of Rabb had received assets sufficient to pay all the debts of the estate, calls on the executory to discover what assets they have received and what disposition had been made of the same; and concludes with a prayer that ah account be taken of the amount due on the notes, and that defendants be decreed to pay the same.
    The answer of the executors denies that they have any assets in hand, or had any when the bill was filed, and states the estate of their testator had been sold and expended in the payment of his private debts.
    The exhibits to the bill were, first, copies of the three notes sued on at law; second, copies of the judgment executions with return of “nulla bona” at law; third, a certified copy of the inventory of Rabb’s estate, showing assets to the amount of two thousand five hundred and thirty-seven dollars.
    
      The case was submitted for final hearing on the bill and answer.
    Montgomery and Boyd, for complainants.
    Dubuison and Von Hoesen, for defendants.
   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.  