The bill is to obtain a construction of the will of Anna Boyce. After the cause between these parties was heard in August, 1849, 41 N.C. 130, a question arose between the executor and the residuary legatees and next of kin, out of what funds the debts of the testatrix and the charges of the administration are payable. The will in the (45) sixth clause gives a certain fund to the slaves of the testator, and then in the eighth clause proceeds thus: "I will that all the balance of my property, not herein disposed of, be sold by my executors, and after my debts paid, the proceeds of the sale to be divided into three divisions. One third to go to the use of the Associated Reformed Church at Sardis; one third to be equally divided among my brothers and sisters' children: the remaining third of the proceeds of sale, to be held by my executor for my negroes," c. When the case was formerly before the Court, it was held, that the slaves and the funds given to them in the sixth and residuary clauses did not pass by the will; and the executor, considering that they constituted the proper fund for the payment of debts and charges, as being a surplus not disposed of, was proceeding to administer the estate on that principal, when he was forbidden by the next of kin, who insisted that the same was payable out of the residue given in the eight clause; and thereon the executor now prays directions.
The Court is of opinion, that the undisposed of surplus is liable in the first instance of the debts and expenses. It is the general rule, that, without any particular charge on it, and independent of any intention of a testator, the law throws the burden on property, as to which there is an intestacy, unless there be an exception of it, or a charge of the debts, etc., to be fixed by plain words or implication, on other property exclusively. White v. Green, 36 N.C. 45. There is no direct exemption of this surplus; and the only question is, whether there is such a charge on the residue given in the will, as fixes that with the burden exclusively and exonerates the surplus. (46) A mere change of debts on a particular part of the estate will not exonerate a fund, on which there is a prior liability; for the charge may as well be taken, as making that fund auxiliary, as intending to place it in front. There must be something to change the order, in which, the law says, the different parts are applicable, when the testator does not direct otherwise. Robards v. Wortham, 17 N.C. 173. A direction to sell the residue, and then, that the money thence arising should be disposed of as follows, viz: All my just debts be paid; and
then to A and B $50 each, and all the balance to C was held in Fraser v.Alexander, 17 N.C. 348, to be a precise division and appropriation of that fund to those purposes, and that, as C was only to have the balance of the "money thence arising," he could only get what remained of that fund, after the other purposes had been answered out of it. But there is no such precise direction in this case, nor anything more than simply a recognition of the charge of the debts, imposed by law on the residue of her estate, which she knows and says must be paid before the donees of the residue can have it. There is no declaration, that the debts are to be paid, at all events, out of the residue thus given, but a charge merely, which expresses no more than the law would, had the will contained not a word on the subject. Upon such a case, besides the authorities already cited, Dicken v.Cotten, 22 N.C. 272, is directly in point, that the other parts of the estate, thus charged, are not liable, but upon a deficiency of an undisposed surplus. A declaration must be made accordingly; and the executor will pay the costs of this suit also out of the fund, which will be allowed in his accounts.
PER CURIAM. Declared accordingly.
Cited: Swann v. Swann, 58 N.C. 299; Miller v. London, 60 N.C. 630.
(47)