34 N.C. 61 | N.C. | 1851
The petitioner is the administrator de bonis non, with the will annexed, of John Wyatt; the defendant is the administrator of Lawrence Cherry, who was the executor of said Wyatt. The petition is filed for an account of the estate of said Wyatt.
An account was taken, to which the petitioner filed four exceptions. The first and fourth were sustained. The second and third were overruled, and the defendant appealed. This presents the first and fourth exceptions for our consideration.
Both of these exceptions involve the construction of the following clause of the will: "I give and bequeath to Lydia Wyatt all the balance of my property during her natural life, and at her death it is my will and desire that the said property loaned to my said wife shall be sold by my executor, with the exception of one acre of land, and the moneys arisingfrom the sale of said property to remain in the possession of my executor in trust for the benefit of my daughter Keziah Roby during her natural life, to be furnished to her at such times and at all times at the discretion of my executor." After the payment of his debts, which he directs "to be paid out of my estate," there remained in the hands of the executor $273.80, being the principal and interest of the bonds, accounts, and claims due the testator. This amount the executor paid over to Lydia Wyatt.
The question is, whether the bonds, accounts, and other choses inaction passed under the above clause, or were undisposed of and subject to distribution. The word "estate" has a broader signification that the word "property." The former includes choses in action. The latter does not. And in reference to personalty is confined to "goods," which (63) term embraces things inanimate — furniture, farming utensils, corn, etc., and chattels," which term embraces living things — slaves, horses, cattle, hogs, etc. Nothing but personal property or "goods and chattels" could at common law be seized under a fi. fa. or be the subject of larceny.
As the testator uses the word "property," choses in action are excluded, taking the word to have been used in its legal sense; and that such was his meaning is made still more manifest by the direction that all said property at the death of his wife shall be sold, and the moneys arising from the sale applied, etc.
The fourth exception, because the defendant is charged with the amount of the debts, etc., which he collected and paid over to the widow, his Honor sustained. We concur in the opinion that the defendant ought to be charged with this sum; but there is error in not allowing the *55 receipt of the widow to stand as a voucher for such part of the sum as she was entitled to under the statute of distributions, and as to which the payment to her was rightful.
The first exception, because the defendant is credited with the sum of $75 paid to Keziah Roby, his Honor sustained. In this there is error. The distributive share of Keziah Roby in the proceeds of the notes, accounts, etc., greatly exceeded this sum, and the payment of the $75 to her use was proper.
There must be a reference to reform the accounts.
PER CURIAM. Ordered accordingly.
Cited: Webb v. Bowler,
(64)
