McDearman v. Martin

Harrison, J. As the claim of Mrs. Martin under the ante-nuptial contract is for a child’s part, or a distributive share of the personal property, she stands on the footing, and with the same rights and remedies in respect thereto as a distributee of the estate. She is not a creditor of the estate, nor entitled by the contract to any portion of it unless the personal assets are more than sufficient to pay the debts. Tbe case, we presume, would have been different, if her agreement had been, instead of a child’s part, to receive a specific sum of money. An executor or administrator is not authorized to pay legacies or distributive shares until two years after the date o'f his letters, unless ordered to do so by the probate court; and such an order cannot be made until it appear, upon a settlement, that there are sufficient assets to pay all demands against the estate ; and then the legatee or distributee must give bond with security to refund his proportion of any debt which may afterwards be established against the estate. Gantt’s Digest, secs. 157, 158, 165. It follows that no cause of action was shown in the complaint, and that the demurrer to it should have been sustained. The judgment is reversed.