9 N.C. 122 | N.C. | 1822
I cannot but view this as a bill brought upon a mere legal title. When the executors assented to the legacy of the mother, they thereby assented to the bequest of the issue, and they lost all control over the property as executors. The claim lost its *77 legatory character, and even viewing this as a residuary interest, which I think it very much resembles as far as respects the present question, the result will be the same; for I cannot think that the old law upon the subject is at all altered by the acts of our Assembly, requiring legatees to give refunding bonds. Those who argue in favor of the alteration contend that a legatee for life or other particular interest can compel an executor to assent to his legacy upon giving bond for the value of the particular interest only. I would admit that if the law were so it would follow. But it appears to me that the executor is not bound to assent to a legacy unless he gets bond for the value of the whole interest — that all the claimants, both immediate and ulterior, represent but one full owner. Nor do I think it reasonable that the law should divest the executor of the possession, and after the determination of the particular estate throw on him the burden of regaining it for the purpose of giving it over to those who have a residuary interest in it.
PER CURIAM. Bill dismissed.
Cited: Burnett v. Roberts,
