40 N.C. 407 | N.C. | 1848
William P. Little made his will on 2 March, 1827, and therein made the following disposition: "In the first place, I give to my wife, Ann, all the negroes which came by her and all their past as well as future increase. *284 Secondly, I lend to my wife during her natural life all the residue of my estate, real and personal. Thirdly, at the death of my wife I give to all my children who may be then living an equal part of the residue of my estate, both real and personal; and in case any of (408) them should die previously, leaving issue, I wish said issue to have the portion which their parent would have drawn if living, due regard being had to such as may have received any advances either from me or their mother at any time previous to her death out of my estate. I appoint my wife, Ann, and my sons, Thomas P. Little and George Little, in all of whom I have the most unlimited confidence, my executrix and executors; and they are hereby vested with full power to sell any part of my estate, either real or personal, whenever they may think proper to do so, without any order or decree of any court. Lastly, it is my will and desire that if any of my children die without issue or under age, in either case their portion to go to my surviving children, and to the issue of such as may have died leaving issue in the same proportion their parent would draw if living."
The testator died in the spring of 1829, and in August following the will was proved and Mrs. Little and Thomas P. Little qualified as executors. The testator left seven children, of whom one was Minerva, who intermarried with Hamilton C. Graham and had issue three children, and then both she and her husband died in the lifetime of Mrs. Little, leaving their said children surviving, who are infants and are the plaintiffs in this suit. In 1845 Mrs. Little died, having made her will and appointed her son Thomas P. the executor, and he proved the will.
The bill was filed in September, 1847, against Thomas P. Little, George Little, and the other children of the testator, William P. Little, and states that the testator left a large personal and real estate, and that the latter consisted of land in this State and Tennessee and elsewhere; and that the executors sold large quantities of valuable land and appropriated the proceeds to their own use or misapplied them in the payment of debts of the testator, as they say, instead of his discharging the debts out of the personal estate, as they should have done. (409) The prayer is for a discovery of the personal and real estates, and especially of such parts of the latter as were sold, and an account of the proceeds and also of the residue of the personalty, and that the plaintiffs may be declared to be entitled, as representing their mother, to one-seventh part of the residue of the personalty after the payment of the debts and the charges of administration, and the like share of the prices of the land sold and the profits thereof, and that the same be decreed to be paid to them, and also that partition be made of the land remaining unsold, so that one-seventh part thereof in value should be allotted to the plaintiffs. *285
The answers of the executors state that the testator was largely indebted when he died, and also when he made his will, and have annexed to them an account of debts and charges paid to an amount exceeding $25,000; that there were about sixty or seventy slaves, and that a considerable number of them were sold for the purpose of raising money to be applied to the discharge of the debts, and that it would have required all of them, or nearly all of them, including those bequeathed specially and absolutely to Mrs. Little, to satisfy all the debts, and that, under those circumstances, it was thought most proper to sell such parts of the land as were unproductive and thus save some of the slaves (which were productive and increasing), by applying such parts of the proceeds of the land as were requisite for that purpose to the discharge of the debts. The answers state that the testator left 21,700 acres of land, consisting of various tracts, of which a schedule is annexed, and that, thereof, particular parts mentioned in a schedule had at different times been sold for the aggregate amount of $23,890.54; and they insist that the same was under the will subject to the payment of the testator's debts in exoneration of the specific legacy to Mrs. Little, or at all events that it was so subject in the discretion of the executors. The answers also state certain advancements made to the children respectively. (410) The plaintiffs are entitled to partition of the unsold land specifically, or that it should be sold by the executors or under the direction of the court for that purpose, as may be for the interest of the parties. There must also be the usual order for an inquiry as to the debts and administration of the personal estate, and a further inquiry as to the land sold by the executors and its produce, and how the same has been disposed of or invested, and the interest thereon or profits made since the death of Mrs. Little, the tenant for life. Those are orders so much of course as to call for no observations in themselves. But the parties, entertaining different views respecting the duty or power of the executors to apply the proceeds of the real estate to the debts, have asked a declaration of the opinion of the Court on that point as a guide to the master.
It is highly probable that the rule of law requires a decision of the question made that is opposed to the intention of the testator — not that expressed, but that entertained by him. From the amount of the debts which now appear, it is natural to suppose the testator must have expected it would be necessary to sell a considerable portion of the estate, of some kind; and from the value of the slaves compared with the debts, *286
the necessities of his wife and family, and the direction for the sale of any parts of his estate at the discretion of the executors, one conjectures with some confidence that the testator would prefer, and probably thought he had provided, that the executors should or might sell land for the payment of his debts — especially as the only absolute (411) immediate gift was to Mrs. Little, to whom the whole estate was given for life, and who was mother of all the children, and, as he supposed, would care equally for them. But one can only make conjectures upon those subjects, founded on what most men would be supposed to have intended under such circumstances, for there is nothing in the will to say that the testator had such intention. He does not mention that he owed a single dollar, much less direct the payment of debts out of any particular fund. Consequently the debts must be paid by the personal and real estate, in the order prescribed by law, that is, by the personal estate as the primary fund, and by the realty for the deficiency. It is true, the land is devised in mass, with the residue of the personalty. But that does not alter the rule of law; for every devise is specific; and the case is the same as if the testator had, in one clause, devised all his land to his wife for life and then to his children, and in a subsequent clause bequeathed the residue of his personalty, in which case the residue would be applicable to the debts in the first place, and then specific legacies, and, lastly, the land would make up the deficiency. It was stated in Robards v. Wortham,
PER CURIAM. Declared accordingly.
Cited: Graham v. Little,
Dist.: Blount v. Pritchard,
(413)