#### Robert Marsh, Ex'r. *of*Miles Scarboro, *v.*Nancy Scarboro, *et al.*

*An*executor who pays legacies voluntarily, without taking a refunding bond, has no equity against the legatees to compel them to refund, unless the debts for which the assets are deficient, are such as the executor had no notice of, when he paid tho legacies, or unless some casualty has destroyed or impaired the value of the assets retained to pay them.

The plaintiff alleged that soon after he proved the will of his testator, he understood and believed that the debts due from the estate were few and of small amount, and that the assets not bequeathed in specific legacies, were amply sufficient for their discharge — that under this impression he delivered over to the legatees their respective legacies, without taking any refunding bonds from them — that he afterwards proceeded in administering the residue of the estate, and that debts to an amount larger than the assets in his hands, had been presented, and in paying them he had been compelled to advance his own funds. For the amount thus advanced, he prayed to be reimbursed by the defendants, who were tho specific legatees.

The defendants denied that the plaintiff had exhausted the assets in his hands, objected that he had not pursued the directions ef the acts of the General Assembly, iu relation to executors and administrators, insisted that he should be held to strict proof of the allegations of his bill, and claimed the benefit of every legal objection to his recovery.

The plaintiff filed with his bill a copy of the inventory aud account of sales of the estate of his testator, which he had returned to the County Court, and also a schedule of the debts paid by him in the course of adrniu-*552ministration. No testimony was taken by either party, and the cause was heard upon the bill, answers, and exhibits.

*Nash*for the plaintiff.

Wi *H. Haywood*& *Waddell*for the defendants.

Gaston, Judge.

The plaintiff has not made out a case which, according to the rules of this court, entitles him to relief. When an executor has voluntarily paid legacies, he is not in general permitted to institute proceedings against the legatees to refund. As it is his folly to make suck payments before the amount of the estate can be ascertained, or his negligence in not acquainting himself with its amount, when that information may be obtained, neither of these grounds will entitle him to the interference of this court, and for that purpose, subject the legatees to- the inconvenience of an account of the- administration of the assets. There are certainly, however, excepted cases,, in which the executor can demand this relief. If debts be afterwards made to appear, of which debts there was no notice when the legacies were paid.; or if any casualty which could not have been reasonably anticipated, has,, without fault or negligence in the executor, destroyed what was kept for the payment of the debts — these matters arising subsequently to his settlement with the legatees, may give him an equity to call on them to refund what he needs for the satisfaction of creditors. But then the matters constituting this equity must be distinctly set forth in his bill, for obvious reasons. One is, to shew the right of the plaintiff to have what he asks of the court; and another is to enable the defendants to put in issue the matters upon which that right depends. The bill in that case is wholly insufficient. It sets forth *no accident*which has destroyed the estate, or impaired the value of the assets, and it does not charge *what*debts, if any, have been demanded since the payment of the legacies, of which the executor then had no notice. Had the bill, however been sufficient, no relief could be given, unless its material allegations were either admitted or proved. *553Here the statement in the hi 11, vague *as*it *is, that the*amount of debts exceeded the assets retained by the ex-ccutor, is wholly *denied;*the presumption of the law is against it; and there is *no*evidence of any sort to support the allegation, or to contradict the presumption.

The bill must be dismissed, and at the costs of the plaintiff. As it is possible, however, that the plaintiff may have rights which can be shown on a proper bill, this dismission is directed to be made without prejudice.

Per Curiam. — Bin Dismissed.