Floyd v. Hodge , 44 S.C.L. 157 ( 1856 )

The opinion of the Court was delivered by

O’Neall, J.

In this case I think the-verdict was perfectly right. Por according to tbe proof tbe personal estate was less than tbe debts, and of course there was nothing of it to distribute.

It is no answer to this to say, tbe real estate paid the debts, and that there is a surplus left for distribution.

In Warley vs. Warley, Bail. Eq., 397, tbe rule is very clearly settled, that in an intestacy, personal estate is the primary fund for the payment of debts.

Here therefore the widow cannot have bad a distributive share of that which did not exist. The debts consumed or ought to have consumed the personal estate.

Independent of this conclusive view the jury were told to inquire whether the demandant had elected to take her distributive share of the personal estate, and also whether any fraud bad been practiced upon her. They answered in her favor, on both these inquiries. How are we to say they decided them wrong ?

The motion is dismissed.

Wardlaw, Withers, Whither, G-lover, and Muhro, JJ., concurred.

Motion dismissed.