41 S.E. 800 | N.C. | 1902
In his will plaintiff's testator devises and bequeaths his property as follows: "I give, devise and bequeath unto my beloved wife, Catherine Crater, all of my real estate, personal property, (619) except the mill, and the mill may be sold and the interest of the money she may have of the mill, and all of my other property I will to my wife, Catherine Crater, as long as she lives, and after her death that all shall be sold and then go to her heirs." . . . His executor, A. A. Crater, sold the mill for $1,550 and loaned the fund, *423 listing it for taxation in his name as executor, and paid the interest accruing thereon to the said Catherine, and paid the taxes thereon out of the principal fund. Catherine is now dead, and the administrator de bonisnon cum testamento annexo of John Crater, the testator, contends in this action that the administrator of A. A. Crater (the executor) is accountable for the full amount of the fund, to wit, $1,550, while defendant contends that his intestate properly paid the interest to the legatee, and the taxes out of the fund, and that he is only accountable for the amount less taxes paid upon it; and this is the question raised by the exception of the defendant to his Honor's ruling and judgment upon the referee's report; or, in other words, should the executor have paid the taxes upon the "mill fund" out of the interest, and paid the residue of interest to Catherine, or should he have paid her all of the interest, and paid the taxes out of a part of the principal fund?
From the language used by the testator in his will, we think it clearly appears that he intended that his wife should have the interest — the entire interest — upon the fund to be realized from the sale of the mill. He gave her his real and personal property "as long as she lives," with remainder over, etc., excepting the mill, creating from it a special fund which became a subject of taxation in the hands of his executor, separate and apart from the other part of his estate, upon which he knew taxes would be assessed and would have to be paid. Had he desired her to bear the expenses incidental to the trust, including taxes, he would not have said that she may have the interest; or, if the taxes must be paid out of the interest, then she would get only (620) a part of it, which does not seem to have been intended by him.
We fail to find in our own Reports any decision which will aid us in this case, but the learned counsel for defendant has cited us to Wilson v.White,
The amount of taxes paid out of the principal should have been credited to the account of the defendant, and in ruling to the contrary there was
Error.