Buie v. Pollock , 54 Miss. 9 ( 1876 )

Campbell, J.,

delivered the opinion of the court.

The right of the creditors of a decedent to reach the assets in the hands of personal representatives or other persons holding such assets affected with a trust for the payment of the debts of the decedent, is recognized to the fullest extent; but the question in this case is, whether the property sought to be reached is assets, and that depends on whether it belongs, in the view of a court of equity, to the estate of Buie, deceased.

The executors of Buie, having charged themselves with the note of the Smiths and East as so much money in their settlement, and the said estate still being indebted to them, and there being no fraud on their part in this respect, the said note was thereby administered, and ceased to be assets of said estate, and was properly prosecuted thereafter for their individual use. Neither the judgment they recovered, nor the land subjected to it and sold, was subject to the demand of the creditor of the deceased Buie. In Pollock v. Buie, 43 Miss. 140, it was decided that the decree of the Probate Court on the final account of the said executors of Buie did not bar the suit of Pollock (the appellee in this case) against them; but the validity of said settlement of the account of the executors in all respects, except as a bar to actions by creditors, was expressly affirmed. It was certainly lawful for the executors to charge themselves with the amount due by said note of the Smiths and East, and, having done so, the note became theirs. Searles v. Scott, 14 S. & M. 94; s. p. 28 Miss. 379.

Decree reversed and bill dismissed.