| N.C. | Jan 5, 1877
It is unnecessary to decide what estate in the land was passed to the defendant, by the deed of W. W. Blankenship. He certainly should be content with his title, if he claims to have the fee simple. The notes for the land were executed by the defendant to Blankenship, and upon his death, they devolved upon his personal representative.
They can be collected by suit only in the name of the administrator.
The plaintiffs who are the wife and children of the intestate, have no interest in the notes or their proceeds, legal or equitable, until the debts and liabilities of the estate are discharged and there shall remain a surplus for distribution. How that will be, there is no allegation or proof. Why the notes were not sued on by an administrator of the estate it is hard to conceive. The defendant is not entitled to a homestead as against the debt for the purchase of the land; on the contrary the land is liable to sale under execution for the debt, at least all the estate which the defendant acquired by the deed. Whether the estate is a fee simple or a life estate, we not decide. Whatever it is, it is a legal estate unaffected by any trust for the benefit of the plaintiffs under which they can enforce a sale by a decree of this Court, according to the prayer of the complaint. The demurrer must therefore be sustained upon both grounds.
There is no error.
PER CURIAM. Judgment affirmed. *379