delivered the opinion of the conrts-No. *178thins appears in this case to shew any consent on the part of the complainants to relinquish the claim which they have-ai?a*nst the defendants, who are chargeable in respect of the property they ¡¡<v.- ;.-s legatees. 1 he whole fund is ¡la-bio 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 any thing remains of the tesfafoUs property in his possession'. it is very proper for the court to adjust these proportions for the convenience of the parties? lmr 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.
Alston v. Weldon's Representives, 5 N.C. 176, 1 Mur. 176 (1808)
Young, Alston, & Co. vs. Weldon’s Representives and Devisees
From Halifax district.
The whole estate^ of a deceafied *177'debtor being liable to thecomii-on™°™*0°e this state,or cause” the Estator in J”sn°g re"”¿c'f bv the crédito'# here, the o-theri^a-thereachof ifgaj!-g‘r^0' mount to so if one loga-more of the testator’s debts' than ^‘“*^¡013 oft®"nllt^u* tween him theriega-tee3‘
*176Tois bill was filed in the Court of Equity for Halifax .. ... ■ . - . „ rt . district, against tho representatives and devisees ot Samuel Weldon, deceased, praying that, they might be decreed to to complainants the amount of a debt which the said * Samuel owed to them at the time of his death, Tho court *177ijaving directed an account to be taken by the master, of tlie principal and interest of the debt due to complainants, and also tfie value of the several legacies bequeathed to the defendant by the said Samuel in his last will ; and master liaving made his report, the caustícame oh to be heard i , , . ... Upon the biiij answers, exhibits and masters report ; when tiie court decreed that the complainant recover from the de-fendanfs the sum of three hundred and eighty pounds with interest till paid, and that executions issue against Benja-inin Weldon, administrator of Penelope Simmons, for the sum of 1.126 is t; against William Weldoh for the sum of ¿42 4- 6 ; against Benjamin Wéldon fdr the stun of ¿43 4 6$ against Pbnelbpe Weldoh for the sum of Í.S4 8 10; and against John Carter and Martha, his wife, for the sum of ¿84 & 10, the same being their respective proper- . „ , „ _ , . .. . tions ot the said debt, due regard being had to the amount of their several legacies from the personal estáte of Said testator — And the cause was ordered to be retained for fur» Iher directions, in case any of the said defendants had become insolvent, or removed themselves and their property but of this state ; or any other cause whereby the cbm plainants coilid not have the effect of their execution against them: It was also ordered that the defendants pay. the costs in the same proportion as the debt,
* . , . 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 a-hove decree to the payment of the several sums therein tnentioned, that the other parties now within the reach of -the process of the court, should be made liable for their shares, if tlTe property which they had received should a-rnount to So much, it was referred to this court for judgment therein.