#### Ransom Sanders *v.*William Sanders *et al.*

An administrator who has, without neglect, been compelled to pay debts of his intestate to an amount exceeding the personal estate, will be reimbursed out of the real assets.

But if the payment be voluntary, whether he will be aided. *Qu ?*

The case made out by the bill was, that the plaintiff was appointed administrator of *John Sanders,*by the County Court of Johnston; that he found among the papers of his intestate, evidences of debt to the amount of *$*8400, against *Reuben Sanders,*who was perfectly solvent; that this sum was subject to a legal set-off on the part of the debtor, which reduced it to the sum of *$5317,*which was assets in the hands of the plaintiff, and for which he was charged in suits brought by the creditors of the intestate; that *Reuben Sanders,*the intestate, and one *White,*had been co-partners in trade; that the *former*had been charged *before*the death of the intestate, with the settlement of the co-partnership ; that *White*had become insolvent, and *11. S.*had found that the co-partnership dealinghad eventuated in a loss, which from the insolvency of *White,*was to be borne by him and the intestate; that ho had obtained a decree in the court of Equity for the County of Johnston, whereby the amount of the balance due at law by him to the intestate, was reduced to $1447: and that in consequence of this equitable set-off of *JR. S.*against the debt above mentioned, not being a defence at law to the plaintiff against *263the creditors of bis intestate,, be had been . subjected to the payment of debts to an amount exceeding the assets 1 , . , _ rri, i í» . , ’ . Jt which had come to las hands. I he defendants were the lieirs of *John Sanders,*the intestate, and the bill prayed, that the real asset which had descended to. them from their ancestor, might be sold, and from the proceeds thereof the plaintiff might be indemnified for the amount he had paid over and above his receipts.' ;

Copies of a judgment at law in favor of the plaintiff against *R. S.*and of a decree establishing /the equitable set off of the latter wgre filed.

*Gaston*and *Severenx*for the .plaintiff,

cited *Williams*v. *Williams (ante p.*69.)

*W. H. Haywood*for the defendant. ■’

Henderson, Ciiief-Justice.

’fo do not mean to decide the question whether an administratop'or executor, who goes beyond liis assets in payment'of debts, without showing a special reason for doing so, -can; claim to be reimbursed out of the real estate. • .Here, the administrator has made out a very clear and strong case, why he was compelled to pay debts beyond the amount of his testator’s personal estate; and lias given a very satisfactory reason, why he, in his inventory, charged himself with the full amount of the apparent debt due his intestate from *Reuben*Sanders, and how it was after-wards diminished by throwing on .this;.estate, a claim which *Reuben Sanders*had on the co-partnership, by the insolvency of *White,*one of the partners. We think that the plaintiff did not act improperly in charging himself with the full amount of that debt in his. inventory, and that it was his duty to allow the decree 'obtained by *Reuben Sanders*against him, an account of *While’s*insolvency, as a set-off against it. If by tliese means, he was charged and did pay to creditors.beyond his assets, he has a fair claim in this court to a reimbursement.— Next as to the proof. The decree irt the shit- of *Reuben*Sanders, against the co-partnership, fixes, as to the defendants, both the amount of his claim, aiul .the liability of the administrator to the sum decreed against him for *264the insolvency of *While,*for, that would haye been its effect in a suit at the instance of *Reuben Sanders*to subject the real estate to its payment, and such must bo its effect in favor of those who are substituted to his rights. The conclusive effect of that suit arises from the *peculiar relation subsisting in our law,*between the personal representative and the heir. I call it *peculiar,*for I believe it no where else exists. Here they are not strangers as they are in England, but there is a *quasi*privity betweenthem, as the former defends as well for the heir, as for the other creditors, the legates, and next of kin. The judgment against him, in the absence of fraud, is conclusive upon all, except as to the plea of fully admin-istcrcd. The law allows the heir to contest that, when brought m to show cause, not why th© creditor should recover his debt, but why he shall not have his judgment, obtained against the executor or administrator, levied out of the real estate. It is upon this privity that an executor or administrator, who'll as disbursed beyond his assets, stands in a different situation from a mere officious intermeddler, who obviously pays money for another, and then claims reimbursement. What may be the effect of such a state of facts, this case does not require us to decide. The debt being thus conclusively fixed on the heir, there being no fraud, no collusion, it remains to prove the expenditure of assets, and as to that, an account must betaken.

■ciudedTy a ju%ment against the to every thing but the amount of as-the latter.

Per Curiam.' — Direct an account.