Opinion
(Fall Riding, 1801.)
An action at law will lie for a legacy, if there be an express promise by the executor or administrator to pay it, and he either has assets or promises in consideration of forbearance.
THE deceased left a legacy to the feme, for which this action on the case was brought. The administrator had been applied to, and he said he would pay it as soon as he could sell the Orton plantation.
Wright, for the plaintiff, cited Cowper, 284, 289; 1 Vent., 120; 2 Cro., 602.
Jocelyn, e contra, cited 5 T., 690; Iredell, 209.
Legacies may be recovered two ways in equity or by petition, and a suit will lie at law upon a promise by the executors to pay it. He is under a moral obligation to pay it when he has assets, and that is a consideration. If he promise in consideration of forbearance, (154) though there be no assets, that is enough. It will lie against the administrator of the administrator promising: the sum paid will be applied as if suit had been against the promising administrator.
NOTE. — As to a promise by an executor, having assets, to pay a debt of his testator, see Sleighter v. Harrington, 6 N.C. 332; Williams v. Chaffin, 13 N.C. 333.