In Re Estate of Bost

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, *443 which 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.