55 N.C. 377 | N.C. | 1856
The bill is filed by an executor to procure from the Court a construction of the will of Taney Holman.
We shall take up the items of the will in the order in which they were so lucidly arranged by the counsel of the plaintiff
The 6th and 7th items of the will are so connected by the facts, that it is necessary to consider them together. We do not entirely concur in the view taken by the plaintiff’s counsel as to these items. The authorities cited by him, to wit, Adams’ Eq. 172; Yates v. Cole and others, 1 Jones’ Eq. 110,
Mrs. Carter does not take a life-estate in Nancy, the offspring of Mary. She was born after the making of the will, and before the death of the testator. Tire word increase, is not coupled with fatvwe, she, therefore, did not pass to Mrs. Carter with her mother and the other children, but is included in the 13th item, and is to be sold. Cole v. Cole, 1 Ire. Rep. 460; Joiner v. Joiner, 2 Jones’ Eq. 68. Nor did she pass to the children of Mrs. Carter under the terms “ bodily heirs.” The rule in Shelly’s case has no application. Allen v. Pass, 4 Dev. and Bat. 77.
The 10th clause directs certain slaves, whose names are mentioned, “to be hired out in that neighborhood, until the youngest child of the testator’s daughter Elizabeth Eussell, arrives at age; and the hires in the mean time, as received by the executor, to be forwarded to the clerk’s office of Lauder-dale county, Alabama, and by the county court of said county, to be distributed equally between all the children of the said Elizabeth Eussell, &c.” Mrs. Eussell and her children, we presume, lived in Lauderdale county, Alabama, and the distribution is to be made there. There are in Alabama no county courts, but they have, what is called a probate court, discharging some of the functions of our Courts of Pleas and Quarter Sessions; they have the appointment of guardians to infants, and a general superintendence over their estates. To this Court tiren, it is the duty of the executor to remit the hires of these negroes, and in so doing, he may pay the hires to a duly appointed agent of the court of probate, or' may employ an agent of his own for that purpose.
The 13th item embraces the proceeds of the sale of the personal property, already made, to wit, $805, the proceeds of the sale of Harriot and her child Cina, the proceeds of the sale of Nancy and all the choses in possession not otherwise disposed of. This clause does not embrace tiro bonds, notes and open accounts, and money on hand at the time of the testator’s death, for the reason that the testator directs a sale of
The children of Elizabeth Russell, Sarah Carter and Cath-arine King, tsk&per stvrpes and not per capita, / that is, the children of each of the sisters take the place of their parent. Davidson v. Dallas, 14 Ves. Rep. 576, 2 Fearne 92; Hill v. Spruill, 4 Ire. Eq. 244.
Finally, the executor may distribute among the children as soon as he pleases, and need not wait for the deaths of their mothers. They have no interest in the matter.
The executor has asked our direction as to his assent to the legacies. An unqualified assent by an executor to a bequest for life, vests the title in remainder. Where, however, there are outstanding debts or trusts to be performed by the executor, he has a right to give a special, and not a general, assent, and ought, in the latter case, to insist that an inventory of the property be filed by the life-tenant, and also take a bond, with sureties, for the forth-coming of the property when the life-estate falls in. Iredell’s Ex’r. 257; Saunders v. Gatlin, 1 Dev. and Bat. Eq. 86; Cheshire v. Cheshire, 2 Dev. and Bat. Rep. 254.
Per Curiam. Declare accordingly.