5 N.C. 176 | N.C. | 1808
From Halifax District. At a subsequent term, it being moved on the part of the complainants, in consideration of the removal from this State of Benjamin Weldon (who was the administrator of Penelope Simmons), and who was also subjected by the above decree to the payment of the several sums therein mentioned, that the *139 other parties now within the reach of the process of the court should be made liable for their shares, if the property which they had received should amount to so much, it was referred to this Court for judgment thereon. Nothing appears in this case to show any consent on the part of the complainants to relinquish the claim which they have (178) against the defendants, who are chargeable in respect of the property they have as legatees. The whole fund is liable to the creditor, and if any one of the legatees pay more than his proportion, it becomes a question of contribution between him and the others; but is no answer to the creditor, while anything remains of the testator's property in his possession. It is very proper for the court to adjust these proportions for the convenience of the parties, but if one legatee remove his share out of the reach of the creditor and without his connivance, he has an undoubted right to procure satisfaction from the others. The motion of complainants must therefore be allowed.
Cited: Grigg v. Williams,