78 N.C. 377 | N.C. | 1878
After a bequest of $500 to a grandson, to be paid (379) out of his personal estate, the testator proceeds thus:
"Item 9. I give and bequeath and direct to be divided as follows (subject to the payment of debts and incidental expenses of administration), to wit: To my granddaughter, William Eliza Johnston, one-half *254 of the undivided fourth part, and the residue I direct to be divided into three equal parts, one of which I bequeath to my daughter, Mary Howie, one of my daughters, Martha Fuqua, and the remaining third to the children of my deceased son, Zebulon Johnston.
"Item 10. The estate I have herein devised and bequeathed to my daughters, Mary Howie and Martha Fuqua, I give to them and each of them, during the term of their natural life, and at the death of each to descend to the children of each, share and share alike, my said daughters during life to use the profits arising or accruing from their estate respectively and to inure to their sole and separate and exclusive use and benefit, and at the death of each to descend as aforesaid."
The estate disposed of by the 9th item of the will consisted of horses, mules, cattle, farming tools, crops on hand and household furniture, of the value of $3,000, and of cash on hand, notes and bonds, of the value of $15,000.
The question presented is whether Mary Howie (now Ritch) and Martha Fuqua, the legatees for life, are entitled to the possession of the personal estate so limited to them for life and then to their children. As no appeal was taken from the decision of the court below in regard to the real estate, that part of the case is out of the way.
We think Smith v. Barham,
Smith v. Barham is approved in the subsequent case of Jones v. Simmons,
This case was followed by Tayloe v. Bond,
Succeeding Tayloe v. Bond came Williams v. Cotten,
5th. "All the residue of my estate I give in the following manner, viz.: To my son, Frederick R. Cotten, one share; to my granddaughter, Eliza H. Thompson, one share," etc.
6th. "Should Eliza H. Thompson die without issue, that is, a child or children, then and in that case I give all the property (382) *256 bequeathed to her above, of every description, to my son, Frederick R. Cotten, one share," etc.
The property consisted chiefly of money. It was held to be the duty of the executors to assent to the legacies and deliver the articles and money to the life tenants. But this was put upon two grounds clearly distinguishing this case from Smith v. Barham and Jones v. Simmons. First, because to appeared to be the intention of the testatrix that the legatees for life should have the use of certain articles of a specified nature — as, for instance, to some of the legatees for life negroes and other articles were given specifically; and to others pecuniary legacies only were given; but the limitations over were applied by the testatrix to each of the legatees, and to both species of legacies. It was therefore the duty of the executors to assent to the legacies of the slaves and other specified chattels; and it was held that the same rule must be applied to the money legacies. Second, because the property was given to the legates absolutely, with an executory bequest over, upon a specified contingency, to wit, the failure of children, which made the reason for delivering it to the first taker much stronger, his interest being greater and that of the ulterior limitee more remote and uncertain. But in this case the rule is reiterated by the Court, "that if a mixed and indiscriminate fund of goods and other things is given as a residue to one for life and then over, it is the duty of the executor to sell and pay the interest to the first taker for life, keeping the principal for the remaindermen."
The counsel for the plaintiffs has referred us to two other and later cases in support of the claim of the life tenants, to wit, Chambers v.Bumpass,
It was held that the legatee for life was entitled to the possession of the property; but the decision is put upon the ground that it was the intention of the testator that the first taker should enjoy the use of his house, furniture, farming utensils, specifically, and not that she should have the interest on what they would sell for, and upon the further ground that the life tenant was not a residuary legate, but a universal legatee, which distinguished this case from Smith v. Barham and that class of decisions.
In the last case cited, Hodge v. Hodge,
The purpose of the testator here to benefit the remaindermen would be in a great measure defeated if the legatees for life were entitled to the possession of the property. A large portion of it is perishable. A gift of things quoe ipso usu consumuntur, if construed as a specific legacy carrying the possession to the life tenant, would amount in fact to an absolute gift, for so much thereof as may be consumed in the using is gone forever without compensation to the remaindermen. To prevent this injustice, and to carry into effect the will of the testator, it has become the general rule of the English courts of equity, and the same rule prevails in this State, that where personal property is bequeathed for life, with remainder over, and the bequest is not specific in terms, and there is nothing in the will to show an intention or preference that the life tenant shall enjoy the specific property left, and in the form in which it is left, it must be converted into money as a fund to be held and applied for the benefit of all by paying the interest to the legatee for life and the principal to the remainderman. 1 Williams Exrs., 1259; 2 Williams Exrs., 1058; Howe v. Lord Dartmouth, 7 ves., 137;Morgan v. Morgan, 14 Beav., 72; Randall v. Russell, 3 Meriv., (385) *258 194; Redf. on Wills, Part II, ch. 13, sec. 49. The judgment of the court below will be affirmed as far as it goes; but it does not extend far enough. The plaintiffs are entitled to an account of the residue of the estate so bequeathed, in order that the amount of the fund, the interest of which they are entitled to for life, may be definitely ascertained. His Honor held that the plaintiffs were entitled to the possession and profits of the real estate; but we are not prepared to say with him, that the plaintiffs are entitled only to a life estate instead of a fee simple in the lands. But that question does not now arise and is not decided by us. With the modifications specified, the judgment is affirmed and the case remanded to be further proceeded in accordance with this opinion. Costs to be paid out of the principal of the fund.
PER CURIAM. Modified and affirmed.
Cited: Peacock v. Harris,
(386)