Boring v. Rollins

By the Court.

Benning, J.

delivering the opinion.

[1.] We doubt whether there was any equity in this bill.

The will made it the duty of the executor to pay the debts out of the property. Debts are the first charge upon an estate. These debts amounted to $3.000, the estate to $10.-000*. The bill does not allege that these debts have been paid by the executor, or that they might have been paid by hitn, without a sale of the two negroes which the executor got leave to sell, or some other property of the estate. It is true that the bill contains charges of mismanagement against the executor; but it is equally true, that these charges, giving them their utmost latitude, cannot be made to amount to an allegation that the debts had been paid, or that they might have been paid without a sale of any of the property remaining in the hands of the executor at the time when the-bill was drawn: This being so, can there be any equity in the bill; i. e. any right on the part of the complainants to stop the sale of the two negroes ? It is most questionable whether there can.

But we agree with the Court below in thinking the equity of the bill, if it contained any, sworn off by the answer.

The answer denies all the charges of mismanagement. This, of itself, would be sufficient to destroy any equity in the bill, seeing that the bill lacks an allegation that the debts have been paid.

The answer, however, proceeds to state that the executor, with the consent of the widow, who is now the complainant, Mrs. Boring, undertook to pay the debts by the plan of applying to their payment only the income of the estate, and that he prosecuted this undertaking until sometime in the year 1855, when she took possession of the crop and prevented him from prosecuting it any further. And this statement, it is argued for the plaintiff in error, is not responsive ■ to any allegation in the bill. And, in truth, there is not any distinct allegation in the bill to which it is responsive; but the bill is, 'from its nature, necessarily a bill, a part of the object of which is to get an account of the estate, and then, to have decreed to the complainants whatever relief, it may turn out that they shall be entitled to on the taking of the amount. And to the attainment of this object of the bill, the • prayer for general relief was a sufficient prayer. But this object could not have been attained unless the executor ■ should, in his answer, have set forth a full statement of the pro- • perty of the estate, and of all the acts done by him in the management of the property. Therefore, the statement in his answer of any of his acts done in the management of the pro- • perty, would seem to be directly responsive to th%'prayer of. the bill.

And whatever is responsive to the prayer of a bill, is, I think, to be taken to be prima facie true for the respondent. It is what he has called for.

But be this as it may, we consider the equity of this bilk to have been sworn off when the allegations of mismanagement were denied.

And so, we affirm the judgment complained of.