JACOB POWELL et Ux. et al. v. ABSALOM MYERS et al. Exr's of JOSEPH PICKETT, 1 Dev. & Bat. Eq. 502

Gaston, Judge. The subject matter of this controversy, is an account between the plaintiffs as legatees of John Wright deceased, and the defendants, executors of Joseph Pickett deceased, who was the administrator with the will annexed of the said John Wright, of the administration by the said Pickett, of the assets of his testator. An account was taken by the commissioner, who reported a balance against the testator of the defendants.

The balance so reported, arose entirely from the commissioner having rejected as a credit the amount of four judgments rendered against the intestate by nil dicit on suits instituted against him by alleged creditors of his testator, and which judgments were paid off to the creditors. The defendants excepted to so much of the commissioner’s report, as rejected this credit. The Court sustained the exception, and declared the defendants entitled to the credit claimed^ and it therefore appearing that nothing was due to the plaintiffs, dismissed the petition.

It appears to us, that there is no error in the decree below. The only grounds taken for disallowing these judgments are technical irregularities in the proceedings, upon which they were founded. It is not objected, that the debts were not bona fide due; or that the administrator permitted judgments to be rendered for more than was due; or that he did not honestly pay off all that was recovered.

Unless some such objections were made and sustained, objections showing, that, in conscience, the administrator was liable to his cestui que trusts for assets misapplied, they cannot have a decree against his representatives. The first duty of the administrator, was to pay off the debts due from his testator ; and all that he has honestly paid off, must be allowed him by those whose claim is posterior to that of the creditors.

It was competent for the plaintiffs, to impeach the judgments for fraud, and as they were rendered by confessions slighter evidence might be sufficient to show fraud, than if they had been rendered after contestation. But they must be presumed to be honest, until they are impeached; and objections for informality merely, are decisive indications that substantial objections could not have been successfully urged. The decree is affirmed with costs. Per Curiam. Decree below affirmed.