| N.C. | Jun 5, 1838
JOHN WILLIAMS, testator of the defendants, was guardian of his grandchild, the feme plaintiff. He neglected to secure a debt due her by another of his grandchildren, who had died, and the object of the bill was to charge his estate with its amount. The defendants in their *61 answer admitted the case made by the bill, but set up as a (67) defense the fact that their testator (the guardian) had by his will given to the ward, after the death of his wife, a negro and a bed and furniture, and also one-fifth of the clear residue of his estate, which he declared to be in satisfaction of the debt due her, and the defendants relied upon these facts as a bar to the plaintiffs. Subject to this defense, a reference had been made in the court below, and the sum of $200.61 was reported to be due the plaintiffs. No exception was filed to this report. The court cannot decree that the legacies bequeathed to the plaintiff Elizabeth were given in satisfaction of the debt due to her by the testator. The first bequest to her is of a negro girl, a bed and furniture, but not to take effect in possession until after the death of the testator's wife. The other is of a share of the proceeds of certain negroes directed to be sold, and of the general residuary estate, expressly subject to the payment of the testator's debts and to a life estate of his widow. A legacy is not presumed to have been intended in satisfaction of a debt due by the testator to a creditor legatee, where there is no deficiency of assets to pay both debts and legacies, if there be a difference in the nature of the debt and legacy, or a difference in the times when they are respectively payable, or where the one is certain and absolute and the other contingent and uncertain. The answer, indeed, avers, and offers to prove by testimony dehors the will, that the legacies were given in discharge and because of the debt. We are not prepared to say that testimony for that purpose can be received, but we are not under the necessity of deciding the question, as no such testimony is to be found in the proofs.
Upon the pleadings and proofs there is no other matter presented for our determination. An account has been had by consent of the parties, and no exception has been taken thereto. The report, therefore, is to be confirmed, and the plaintiffs to have a decree for the amount thereof.
PER CURIAM. Affirmed. *62 (68)