286 CONTEE v. DAWSON.

tion of insufficiency of assets is tantamount to an assertion, that the
estate of the deceased is insolvent. It is a matter presumed to be
within the knowledge of the executor; and if he does not expressly
and distinctly assert the fact of insufficiency, he virtually admits a
sufficiency of assets, at least to satisfy the demand then made of
him. It is impossible to consider the allegation in this answer as
an assertion, that the estate of the late William Dawson is insol-
vent and insufficient to pay all his debts. The allegation, 'that the
assets now in her possession are insufficient,' is unequivocal; the
certainty of assets accruing, is distinctly referred to; and it is evi-
dent, from the general complexion of the answer, that the respon-
dent could not with a safe conscience hazard the assertion, that the
estate of her testator was insolvent. She has not, therefore,
alleged, that there was not a sufficiency of assets to satisfy the
claims made by this suit, (n)

But admitting such an averment to have been made, it has not
been sustained by proof. The insufficiency of assets turns alto-
gether upon the admission of the claim of James Dawson, as a valid
and subsisting debt. The proof is, that the witness some time
prior to the year 1816, when William Dawson came to this country,
saw that he had charged himself on his books of accounts, with a
bond given to James Dawson, his son, to secure the payment of
the sum of $16,000, after his, William Dawsonjs death; and that
the witness heard, in the family, and from his mother, the defen-
dant Eleanor Dawson, before the institution of this suit, that James
Dawson had such a claim against the now late William Dawson,
and that a small part of it had been paid; and, yet it was not until
after Eleanor Dawson, as he says, had been informed of the claim
in this case, and another claim against the estate of her testator,
that she was induced to obtain leave to reform her account with
the Orphans Court, for the purpose of introducing into it, then for
the first time, this claim of James Dawson. But failing in the at-
tempt to have this claim allowed by that court; and after she had
heard that James Dawson had left England for India, she herself
caused a suit to be instituted in his name against herself; and,
on the 2d of June, 1826, confessed a judgment for the sum of
$ 19,834 35, with interest from the 3lst of December, 1818, and

(n) Dagly v. Crump, Dick. 35; Roberts ». Roberts, Dick. 573; Pullen v. Smith,
5 Ves. 21; Freeman v. Fairlie, 8 Meriv. 29; Drewry v. Thacker, 3 Swan, 548 ;
Johnson v. Aston, 1 Cond. Chan. Rep. 38.