#### In re Estate of ALICE J. BOST, Deceased.

(Filed 7 April, 1937.)

1. Executors aud Administrators § 30b — Under facts of this case executors held not personally liable for gravestone purchased without order of court.

The will provided that not less than $4,500 be spent on testatrix’ burial and gravestone, etc. The executors, at a time when it appeared the estate was solvent, spent more than $100 for a gravestone and other burial expenses without an order of court, C. S., 108. *Held:*Upon later insolvency of the estate, creditors may not hold the executors personally liable as for a breach of trust for the expenditure of funds of the estate for this purpose in good faith.

*4412. Same — Creditors filing claims more than twelve months after puhlica-eation of notice may assert their demands only against undistributed assets.

Creditors filing their claims more than twelve months after the publication of the first notice by the executors may assert their demands only against the undistributed assets of the estate, C. S., 101, and may not hold the executors personally liable for distributing household and kitchen furniture to the legatees shortly after the death of testatrix in accordance with specific bequests in the will, at a time when it appeared the estate was amply solvent.

3. Same: Attorney and Client § 10—

Executors paid part of a judgment against the estate to the judgment creditor without notice that his attorneys were entitled to a part of the recovery under a contingent fee agreement. *Held:*The executors cannot be held personally liable by the attorneys.

Appeal by executors as such, and individually, from *Alley, J.,*24 December, 1936. From Oabaeeus.

Exceptions to report of executors, beard under 0. S., 124, and on appeal under C. S., 125, resulting in judgment against tbe executors individually and in their representative capacity.

Tbe questions presented turn upon tbe following facts:

1. On 6 August, 1929, Alice J. Bost, of Cabarrus County, died testate, naming tbe Citizens Bank and Trust Company and Sam Súber ber lawful executors, and directing in ber will tbat at least $4,500 should be spent on ber burial, gravestone, improvement of family plot, etc., in accordance witb directions given in ber lifetime. Sbe left an estate valued at tbe time at approximately $16,000. (See *Lipe v. Trust Go.,*207 N. C., 794, 178 S. E., 665.)

2. Tbe executors duly qualified 9 August, 1929, filed will for probate, and immediately entered upon tbe administration of said estate.

3. In Item 8 of tbe will, tbe testatrix leaves ber bousebold and kitchen furniture, worth about $200, to Mrs. Artie Súber and ber children. This was turned over to tbe legatees soon after tbe death of tbe testatrix.

4. Tbe executors rented a bouse belonging to tbe testatrix to Mrs. C. H. Lipe for $22.50 per month, ber husband agreeing to secure payment of said rent by any interest which be bad in tbe estate. C. H. Lipe is a nephew of tbe testatrix and was given a legacy of $3,000 under ber will. No cash rent has been, collected since 1 June, 1930, and tbe renting was done without order of court. *Hardy v. Turnage,*204 N. C., 538, 168 S. E., 823.

5. On 5 August, 1932, O. H. Lipe brought suit against tbe estate for services rendered tbe testatrix during ber lifetime and recovered judgment in tbe sum of $3,875, agreeing witb bis counsel, however, tbat they should have 40 per cent of whatever amount was collected on said judg*442ment. *Lipe v. Trust Go., supra.*Tbe first notice tbe executors bad of Pipe’s claim was wben be filed suit; and tbe first notice they bad of bis agreement witb counsel was received 2 August, 1935.

6. Tbe executors bave realized only $10,211.62 from properties belonging to tbe estate, and tbe estate now appears to be insolvent.

7. In tbe final report of tbe executors, tbe C. H. Lipe judgment is credited witb payment of $1,240 on 30 July, 1935, “by bouse rent.”

In tbe court below, tbe executors were beld personally liable:

First, for $1,298, excessive monument and grave expenses made without order of court;

Second, $200 value of bousebold and kitchen furniture;

Third, 40 per cent of credit on Lipe judgment, plus certain expenses advanced by counsel.

Tbe executors, individually and in their representative capacity, appeal, assigning errors.

*Z. A. Morris, H. S. Williams, and John Hugh Williams for appellants.*

*Crowell & Crowell and Hartsell <& Hartsell for appellees.*

Stacy, C. J.

This is another case in which executors who are required to act in tbe searchlight of prevision bave been judged in tbe noonday of hindsight. Tbe latter is usually tbe brighter light, affording a clearer vision. “Hindsight is usually better than foresight.” *Ingle v. Cassady,*208 N. C., 497, 181 S. E., 562.

First, in respect of tbe burial expenses, purchase of gravestone, improvement of family plot, etc., it should be remembered that these were made in obedience to testamentary instructions and at a time wben tbe estate appeared to be solvent. *Hicks v. Purvis,*208 N. C., 657, 182 S. E., 151; *Fancher v. Fancher,*156 Cal., 13, 23 L. R. A. (N. S.), 944, 19 Ann. Cas., 1157. Hence, tbe provisions of' O. S., 108, requiring an order of court to spend more than $100 for a gravestone is not necessarily controlling. 24 C. J., 92, *et seq.*It is not suggested that .the executors acted in bad faith — only that tbey omitted to secure an order of court before proceeding as directed by tbe will. *Hardy v. Turnage, supra.*Tbe record, we apprehend, is insufficient to bold them as for a breach of trust. *Stroud v. Stroud,*206 N. C., 668, 175 S. E., 131; *Thigpen v. Trust Co.,*203 N. C., 291, 165 S. E., 720; *Deberry v. Ivey,*55 N. C., 370.

Secondly, as to tbe bousebold and kitchen furniture, specifically bequeathed by tbe will *(Heyer v. Bulluck,*210 N. C., 321, 186 S. E., 356) and turned over to tbe legatees soon after tbe death of tbe testator: It is true that a testator, or testatrix, has nothing to give away until bis debts are paid. Equity, which deligbtetb in equality, as well as tbe law, *443which commands the right, requires that one shall be just before he is generous, for generosity ceases to be a virtue when indulged in at the expense of creditors. *Trust Co. v. Lentz,*196 N. C., 398, 145 S. E., 776. It is, also, the rule that executors are not chargeable with the value of specific bequests, turned over in good faith in the due administration of the estate prior to notice of claims of creditors, for under C. S., 101, a claimant who has not presented his claim within twelve months from the first publication of the general notice to creditors, is allowed to assert his demand only as against undistributed assets of the estate and without cost against the executor. *Morrisey v. Hill,*142 N. C., 355, 55 S. E., 193; *Rigsbee v. Brogden,*209 N. C., 510, 184 S. E., 24; *Mallard v. Patterson,*108 N. C., 255, 13 S. E., 93. The respondents, who fall in this latter class, are in no position to complain at the disposition made of the household and kitchen furniture. Of course, if their claims had been filed prior to the expiration of the time mentioned in the statute, C. S., 101, a different situation would have arisen. *Woodward v. Fisher,*19 Miss., 303; 24 C. J., 713. But we have no occasion presently to consider such a case. It is not now before us.

Thirdly, in regard to 40 per cent of the credit made on the Pipe judgment : This adjustment of the house rent, it will be observed, was made by the executors prior to notice of any interest which counsel held in said judgment. The judgment was in Pipe’s name, and it is not perceived upon what principle the executors could be held liable for dealing with him as the owner thereof. *Ricaud v. Alderman,*132 N. C., 62, 43 S. E., 543. Nothing was said in *Casket Co. v. Wheeler,*182 N. C., 459, 109 S. E., 378, which militates against this position.

The liability of C. H. Pipe for the 40 per cent in question, which, perhaps, would be conceded, is not presented by the record.

The exceptions will be remanded for rulings accordant herewith.

Error and remanded.