#### Bellerjeau and wife *against*the Executors of Kotts.

ON DEMURRER.

Suit for

no as- (a)

tion of the

executors.

THE plaintiff’s declaration was in the usual form in *case>*f°r a legacy of 600 dollars. The defendants separated *'a Plea(Hng- -S* *Stockton,*one of them, pleaded, that he had fully administered all the assets which had come ^an<^s &c-> an<^ judgment *guando acciderint*&c. was taken against him. The other defendant, *W. Robinson,*pleaded, 1. The general issue. 2. That there were not sufficient assets in the hands of the executors to pay all the debts and all the legacies. 3. That there were not sufficient assets to pay the legacy claimed in the plaintiff’s declaration. 4. That the testator had directed, by his will, that his account against *Bellerjeau*should *“*come out of his wife’s sharethat this account consisted of rent, &c. amounting to two thousand dollars ; and that it ought to be taken out of the legacies bequeathed to her, of which the legacy demanded is one. The plaintiff joined issue on the first plea. To the second plea he replied: that there were sufficient assets to pay the legacy demanded. To the third plea, that the testater had given certain other specific legacies by his will, and that the executors had paid these legacies to the legatees, without deduction, abatement, or apportionment. To the fourth plea, after protesting that there were no such accounts as were stated in the declaration, he replied ; that after the payment of the specific legacies, the surplus or residue of the estate was to be divided between the plaintiff, *Margaret Bellerjeau,*and *Sarah Robinson,*and that this ac*count ought to be taken out of her share of this surplus. To these replications, except the first, the defendant demurred.

*Ewing*argued in support of the demurrer. *Wall*contra.

(a)

*Haines vs. Price, Spen. 482,*and cases there cited. *Southard vs. Potts, Zab. 278.*

Several positions were discussed, and the court ruled.

1. That under the statute, *Pat.*37, sec. 1 and 2, upon *411the filing of the plea, that there were not sufficient assets to pay the debts and legacies ; the plaintiff ought not have filed a replication, but to have applied to the court for the appointment of auditors to examine the accounts of the executors, to report, &c.

2. That the replications were wrong, inasmuch as they referred to the jury, what, under the law, could not be tried by them.

3. That the construction of the will required, that the account of the testator, against the plaintiff, should first be taken out of the specific legacy, and not out of the surplus share of the estate. There might be no surplus after the payment of the debts and specific legacies, *(a)*

4. That one executor, keeping a separate account, may well discharge himself from all claims, by shewing that he has made lawful payments, to the full amount of the assets which have come to his hands. *(b)*

Judgment in favour of demurrant.

(a)

*Snyder vs. Warbasse, 3 Stock. 464. Van Riper vs. Van Riper, 1 Gr. Ch. 1. Leigh vs. Savidge, 1 McC. 126. Petrie vs. Voorhees, 3 C. E. Gr. 285. Wood vs. Tallman, Coxe 153. Wilson vs. Fisher, 1 Hal. Ch. 498.*See *Davison vs. Davison, 2 Har. 169.*

(b)

*Goble vs. Andruss, 1 Gr. Ch. 66. Fennimore vs. Fennimore, 2 Gr. Ch. 292. Wilson vs. Fisher, 1 Hal. Ch. 493. Merselis vs. Mead, 3 Hal. Ch. 557. Laroe vs. Douglass, 2 Beas. 308. Schenck vs. SChenck, 1 C. E. Gr. 175. Fisher vs. Skillman, 3 C. E. Gr. 229. Price vs. Price, 8 C. E. Gr. 428. Wood vs. Tallman, Coxe 156. Dutch Church vs. Smock, Sax. 148.*