45 N.C. 5 | N.C. | 1852
Lewis Bond died in June, 1851, leaving a will, in which he bequeathed as follows:*
1. "I give, devise and bequeath to my wife, Mary E. Bond, her heirs and assigns forever, all the estate and property of every kind, real, personal and mixed, which I have acquired or may acquire by my marriage with her, and which shall belong to, or be a part of my estate at the time of my death. My estate is not however to be held liable for any income, rents, profits, or interest, arising or accruing from the estate or property above mentioned, between the time of my marriage with my said wife, Mary E. Bond, and the time of my death. I also give to my said wife, Mary E. Bond, her heirs and assigns forever, all and every part of the furniture, purchased on our marriage, known as our `new furniture,' except one carpet. There being two new carpets, she is to take but one of them, and is to have her choice. No part of the foregoing estate or property is to contribute any thing to the payment of my debts, or the charge of supporting my sister, Mary Ashburn, hereinafter provided for. My other property, or in other words, my property derived otherwise than by my said marriage with my wife, Mary E. Bond, is, I think, sufficient to pay said debts and answer said charge, and must first be taken.
2. "I give and bequeath to Dr. John T. Rascoe, his heirs and assigns for ever, my negro boy named Logan.
3. "All the rest, residue and remainder of my estate and property of every kind, whether real, personal or mixed, whether in possession or action, I give, devise and bequeath to my *16 executors, in special trust and confidence, that they will comply with my wishes, as stated in the following clause of this my last will and testament.
4. "I wish all my just debts paid, to which end my executors are directed to sell, either publicly or privately, that part of the land which I purchased at the sale of George Outlaw's land by the Court of Equity, which lies north and east of the old road. I suppose the quantity to be sold will be between three and four hundred acres. My executors may also either sell enough of the personal property so conveyed to them, in the third clause of this will, to finish and complete the (7) payment of the debts unpaid, after the application of the money raised from the sale of said land; or they may keep the whole of the property conveyed to them in the third clause together, except the said land directed to be sold, until the rents and profits of the same shall discharge my said remaining debts. In this matter, my executors have entire discretion.
5. "Whatever plan they may adopt to pay my debts, my sister, Mary Ashburn, is to receive from them a comfortable support, from the said property so given in the third clause, from and after the day of my death, during her natural life. To which end, my said sister, Mary Ashburn, is to have an estate for her life in the tract of land on which I live, on the Indian-woods road, with the use, for her natural life, of a sufficiency of household and kitchen furniture, of my stock of hogs, cattle, sheep and horses, and of my negroes, to support her. These articles are to be for her life only. Should my sister Mary, however, prefer it, she is to have the value, to be judged of by my executors, of her life estate in said land, which said amount is to be a charge upon said land in the hand of a trustee hereinafter provided for, who shall hold said land as hereinafter directed. Should my sister Mary also prefer it, she is to receive from my executors, instead of the articles of property of a personal kind herein given her for life, their equivalent; or, in other words, that which my executors shall deem equal to the use of said articles for life, which amount they are to raise out of my personal property, so given them in the foregoing third clause.
6. "After paying my debts and providing for my sister, as above, all the remaining property and estate of every kind mentioned in the third clause of my will, whether real, personal or mixed, is to be held by them for the benefit of the following persons, subject to more particular directions in the 9th, the 10th, the 11th and the 12th clauses of this will, viz.: my wife, *17 Mary E. Bond; my son, William P. Bond; my son, John T. Bond; my daughter, Lucinda Wheeler, by means of a trustee hereinafter to be provided for; my daughter, Esther Sutton; my son, Lewis Bond, and my son, James Bond. But the benefit of this sixth clause of my will is not to be had and enjoyed by any one of the above named seven legatees, until he or she shall account for the advancements which he or she has received from me; my object, design and wish being, that those of the above seven legatees who have been advanced, are to receive nothing until those of them who have not been advanced, shall receive enough to make them equal to those advanced respectively. And I hereby declare that I have advanced to my son, William P. Bond, property to the amount of eight thousand dollars; to my son, John (8) T. Bond, to the amount of six thousand dollars; to my daughter, Esther Sutton, property to the amount of three thousand dollars, and to my daughter, Lucinda Wheeler, property to the amount of twenty-seven hundred dollars; and that to my wife, Mary E. Bond, to my son, Lewis Bond, and my son, James Bond, I have made no advancements at all. I also direct my executors to adopt the foregoing amounts of money, as the advancements to each of the said four legatees. I also direct my executors, that no interest is to be charged against the said four legatees, on the amounts of their said advancements, until the division in the seventh clause hereafter. The said four legatees are respectively to account for their said advancements, before they receive any part of my estate, whether real or personal. Should any one or more of the said four legatees refuse to account, the others are to have the whole benefit of this clause of my will, in manner and form hereinafter provided for.
7. "My executors are invested with a discretion to make the ultimate division contemplated by the sixth clause of my will, either at the death of my sister, Mary Ashburn, or at any time before that, or to have the share of any one laid off, at any time, upon his or her contributing rateably to the payment of debts, and the charge of supporting my sister, Mary Ashburn.
8. "I wish my executors to ascertain, by having the same estimated, as soon after my death as they can conveniently, the value of my estate of every kind, after taking out the property given my wife, Mary E. Bond, in the first clause of my will, the negro boy, given to Dr. John T. Rascoe, the debts which I owe and the probable charge of supporting my sister, Mary Ashburn, for life. I wish them to value the real and personal estate separately from each other. *18
9. "The benefit in land which my sons, Lewis Bond and James Bond, are to receive under the said sixth clause of my will, I hereby designate more particularly, as follows: — they are to have, as tenants in common, my Turner tract of land of about three hundred and fourteen acres, on the east side of the public road leading to Roanoke; the Carter tract of land, containing three hundred acres; the Roquist swamp land, purchased of Thomas Gilliam, containing about two hundred acres; and the remainder of the Leggel tract, which remainder is about one hundred and fifty acres, after taking off the portion hereinafter given to my daughter, Esther Sutton. The foregoing lands are to be valued. From that valuation the sum of fifteen hundred dollars is to be deducted, as I shall owe my sons, Lewis Bond and James Bond, each the sum of seven hundred and fifty dollars at my death, and they are to (9) be considered as having received lands of the value of these lands, less the sum of fifteen hundred dollars. If either of my sons, James or Lewis, should die unmarried, and before the age of twenty-one years, I give the share of the one dying, in the said four tracts of land, to all my children, equally to be divided, and their heirs and assigns forever, and this without regard to any advancements. And if both my sons, Lewis and James, should die under twenty-one and unmarried, then I give the whole of the said lands to all my children, their heirs and assigns forever, as above. Upon the arrival of either of my sons, Lewis and James, to the age of twenty-one, or their marriage, his share of the said lands to be his absolutely, to him, his heirs and assigns forever.
10. "I give to my daughter, Esther Sutton, her heirs and assigns forever, about two hundred acres of land, consisting of the Rhodes tract, of about one hundred and sixty acres, and that part of the Leggel tract lying on the west side of the public road leading to Roanoke river. This is to be the portion of land to which, under the said sixth clause of my will, Esther is to be entitled.
11. "I give and devise to my executors, in special trust, that they themselves will hold or appoint a trustee, whom they shall select, to hold for the sole and separate use of my daughter, Lucinda Wheeler, during her natural life, my tract of land on which I reside on the Indian woods road, subject to the life estate or charge for the benefit of my sister, Mary Ashburn, created in the fifth clause of my will. And I hereby direct, that my said executors or their trustees shall hold the said tract of land, together with every other article of property, real or personal, in possession or remainder, vested or *19 contingent, heretofore given in this will, or hereafter to be given in the same, for the benefit of my daughter, Lucinda, for her sole and separate use during her natural life, not subject to the control, debts or contracts, or other acts of her husband, S. J. Wheeler; and after her death, for the sole and separate use and benefit of her children, if any living at her death; and if none, then in trust for her husband, S. J. Wheeler. They or the said trustee, are to permit my said daughter, Lucinda, to have the annual income of every species of property given her heretofore or hereafter in this will, for the support of herself and family for life; but the said income is not to be subject to the control, acts or contracts, or debts of her husband, S. J. Wheeler. The said tract of land, is the share of real estate to which my said daughter is entitled, under the said sixth clause of my will."
12. "I give, bequeath and devise, to my wife, Mary E. Bond, during her natural life, a certain tract of land called the `Simon Turner' place, containing one hundred sixty-six and two-third acres, and also one seventh part of the negroes and other personal estate mentioned in the sixth (10) clause of this will, in case all the advancements should be accounted for, or one-sixth part, in case any one should not account for his or her advancements, or one fifth part, in case any two should not account; and so on for the whole four. The real and personal estate given in this clause to my wife, Mary E. Bond, is all that I design for her out of the property given to my executors in the said third and sixth clauses. The property, real and personal, in this twelfth clause, given to her, is given to her for her life, and at her death, to go to such child or children as she has had by me, who may be then living, to them, their heirs and assigns forever; and if there be no living child of our marriage at her death, or the issue of such, then the property given in this clause to be equally divided between all my children, the share of my daughter, Lucinda, being disposed of as directed in the eleventh clause of this will.
13. "As the shares of the land given to Esther, Lewis, James, and for the benefit of Lucinda, are probably unequal, the excess in value of each share, over the least valuable one, is to be accounted for in the division of the negroes and personal property, mentioned in the sixth clause so that of land and negroes both, these four of my children shall receive an equal amount, that is to say, after the advancements to Esther and Lucinda are accounted for by them. In case William P. Bond, or John T. Bond, or both, should bring their advancements into account, they are to receive from the said negroes *20 and personal property mentioned in the sixth clause of my will, a sum which, added to their advancements, shall make them equal to my other children. So that, after taking off the share of my wife, Mary E. Bond, according to the twelfth clause of my will, and which twelfth clause I intend as controlling the sixth, so far as my wife is concerned, and after modifying the said sixth clause, not in the value of property given to each of the other legatees, but by assigning different parcels of land to different ones, the said sixth clause is here repeated, subject to said control and modifications.
14. "The valuation directed to be made by my executors, in the eighth clause of my will, is for the benefit of my advanced children, that they may be informed of their true interest. In said valuation, my executors are directed to estimate the devise and bequest in the thirteenth clause of my will, given to my wife, as well as all other property of every kind, alluded to in the sixth clause of my will.
15. "The personal property and negroes, for the benefit of Lucinda Wheeler, in the thirteenth clause of my will mentioned, are to be held on the same trusts in every respect by my executors, or their trustee, as are stated in the (11) eleventh clause of my will.
16. "I do not wish my executors to be held responsible, unless for gross neglect, of which I am sure they will not be guilty. I wish them to repay themselves for all advancements which they may make to my estate. And I hereby request them to act as guardians to my sons, Lewis and James, until they arrive to the age of twenty-one years, or marry."
The bill is filed by the executors against the legatees and devisees under the will, and sets forth, that the defendants Henry Bond and Daniel Bond are children of Mary E. Bond, the widow, by the testator; that the defendants, Lucinda Wheeler, Esther Cooper, William P. Bond, John T. Bond, Lewis Bond, and James Bond, are children of the testator by a former marriage; that the defendant, John T. Rascoe, is the child of Mary E. by a prior marriage; and that the defendant, Mary Ashburn, is an aged sister of the testator, who, for many years, lived with him.
That Lucinda, long before the making of the will, intermarried with the defendant Samuel J. Wheeler; that Esther was also intermarried with the defendant, Joseph Cooper, before the testator's death that Henry was born before the execution of the will, and Daniel was born after that event, but before the death of testator, and both are infants; and that Lewis and *21 James have arrived at the age of twenty-one years, since the making of the will.
The bill further states, that the testator left, besides the estate which was his wife's at their marriage, a large estate, real and personal; and further, that the executors have not yet executed their power of appointing a trustee for Mrs. Lucinda Wheeler, according to the directions of the will.
The object of the executors in filing the bill, is to obtain the advice, direction and opinion of the Court in construing the said will: — First, The testator having, after making his will, sold a slave, Maria, which was of the property of his wife before their marriage, and having taken a bond for the price, which was unpaid at his death — whether this bond passed by the first clause of the will to the widow? Secondly: The testator having sold other slaves, acquired by the marriage, and converted them into money — whether the executors are liable to account therefor to Mrs. Bond? Thirdly: The testator having hired out a number of the slaves acquired (12) by his said marriage, in January, 1851, for that year, and the hires not being due and payable until 1852, and having in his service others of the slaves so acquired, which worked on the farm after his death, and to the end of the year — whether the widow has any claim, and what, to the hires, and for the services of those retained on the farm? Fourthly: At the time of testator's marriage with defendant Mary, he owned a furnished house in the country, and she one in the town of Windsor — both of which were occupied and kept up after the marriage: the testator, on the marriage, having purchased a parcel of new furniture, and between that time and the date of his will, bought another lot, and still again another after the making of the will — what furniture was Mrs. Bond entitled to? Fifthly: There having been found, among the testator's papers, a bond made to him by Dr. John T. Rascoe, the balance due on which was quite as much as the slave Logan, bequeathed to Rascoe, was worth — whether Dr. Rascoe was not bound to pay the balance due on the bond? Sixthly: Mary Ashburn holds testator's bond for $2,000, with interest, and the support for her life given by the will, being a charge, less than the amount of the bond — whether she is entitled to both the payment of the bond and support for life? Seventhly: The plaintiffs having delivered over, subject to the decision of the points presented by the bill, to the widow the estate in the first clause of the will bequeathed to her; also the slave Logan to Dr. Rascoe; and the estate, real and personal, to Mrs. Ashburn; this property not being necessary to be retained for the *22 payment of debts — whether any injustice is done thereby to other persons taking under the will? Eighthly: The executors having delivered over to Mrs. Ashburn, her share of the estate for life, which was deemed abundantly sufficient for her support, but which might by accident, death of negroes, dearth of crops, c., prove otherwise — whether the executors have a right to claim of this devisee a release of all further claim to support for life? or has she a right to call on them from time to time, as her necessities may require? and in what way are they to meet the exigencies as they arise? Ninthly: The executors, to pay the debts, having sold the land and personal estate, (except the slaves,) as by the will directed; and having (13) rented out the other lands, not those devised in the first clause, and hired out the slaves, which, when realized, will be sufficient to pay all the debts — whether any injustice was done to the unadvanced legatees by this arrangement, under the sixth clause of the will? whether the division of the estate should be at the earliest practicable period? whether the executors were under any obligation to divide sooner than at the end of the year, when the debts could be paid? and whether they could keep the estate in hand for a longer period for the purpose of paying the debts? Tenthly: In making the valuation directed by the eighth clause — whether the executors can do this themselves? or can they designate others to make it? or should they have it done by order of Court? Eleventhly: The testator having received the purchase money for the fee simple in a tract of land belonging to the heirs of his former wife, of which he was tenant by the curtesy, and being indebted therefor to his sons, Lewis and James, in the sum of $1,500, their joint shares — whether Lewis and James are entitled to interest on the debt from the death of testator? If not, from what time? Twelfthly: Whether, (1) under the 12th clause of the will, Mrs. Bond is entitled to any more than the specific land devised to her and one seventh of the negroes? or is she entitled to one seventh of the whole? (2) whether her share of both real and personal estate is liable to the payment of the debts and the support of Mrs. Ashburn? and (3) whether the crop growing, at the testator's death, on the land devised to the children in the 6th clause, goes to Mrs. Bond or to the executors? Thirteenthly: Daniel Bond having been born after the making of the will — whether he is provided for, or is he to have a child's part laid off to him under the Act of Assembly? Fourteenthly: On the land given to Mrs. Ashburn for life, remainder to trustees for Mrs. Wheeler, was a cotton gin, consisting of a box not fastened to the house, which contains the *23 saws; and in the dwelling house on the same land were several valuable carpets, fastened to the floor with iron tacks — whether the gin and carpets go to the trustees of Mrs. Wheeler, at Mrs. Ashburn's death? Fifteenthly: (1) whether the executors are at liberty to take from Mrs. Ashburn an inventory of the estate delivered to her, whereby their responsibility for the safe keeping and ultimate forthcoming of the property will end, and be thrown on those in remainder? or is it (14) their duty to see that the life estate is kept and ultimately delivered to them? (2) their like rights and duties as to Mrs. Bond? (3) the executors intending, after their settlement of the estate, not longer to act as trustees for Mrs. Wheeler — how can they, with safety to themselves, convey to the new trustee contemplated by the will? Are they to require him to give bond and security for the forthcoming of the estate? And in case the trustee and sureties should become insolvent, would the executors become liable? and can they rid themselves of responsibility, by having a trustee appointed by a Court of Equity?
The facts stated in the bill were admitted by the answers, and the cause being set for hearing on the bill and answers, was by consent, transmitted to this Court.
The questions of construction, although furnishing proper grounds for the application, are not very difficult of solution; and the case would have been disposed of at last term, but for the several matters in reference to which, the opinion and advice of the Court, (as distinguished from its direction) is asked. The subject was thus made complicated, and anadvisari was taken, for the purpose of ascertaining the full scope and object of the bill, and of defining the jurisdiction of a Court of Equity, in regard to such matters.
Besides asking for a construction of the several parts of the will, which is necessary for the present action of the Court, a construction is asked for on various other parts, in reference to the past conduct of the executors, and to their future rights, *24 and the future rights of the legatees — the bill proceeding (15) on the assumption, that an executor has a right to ask for the opinion and advice of the Court, as to any matter, past, present or future, provided it has, does, or may grow out of the construction of the will, upon the general idea, that a Court of Equity has a sweeping jurisdiction in reference to the construction of wills.
This idea is an erroneous one. The jurisdiction, in matters of construction, is limited to such as are necessary for the present action of the Court, and upon which it may enter a decree, or direction in the nature of a decree. The Court cannot, for instance, entertain a bill for the construction of a devise. Devisees claim by purchase under the devise, as a conveyance. Their rights are purely legal, and must be adjudicated by the Courts of law. A Court of Equity can only take jurisdiction when trusts are involved, or when devises and legacies are so blended, and dependent on each other, as to make it necessary to construe the whole, in order to ascertain the legacies in which case, the Court having a jurisdiction in regard to the legacies, takes jurisdiction over all other matters necessary for its exercise.
The power of a Court of Equity to decree the payment of legacies is a well settled and ancient jurisdiction, assumed on the ground that the Ecclesiastical Court cannot take the accounts usually involved, or enforce its decrees. The power to entertain bills of interpleader is also a well settled and ancient jurisdiction, assumed in cases of conflicting trusts, on the ground that, as the Court has the exclusive control of trustees, it is right to allow them, where there are conflicting claims, to bring in the fund, have the claims adjusted, and the fund disposed of under its decree, so as to save the trustee from responsibility and future litigation; and assumed, in cases of conflicting legal claims, for the protection of any person, of whom several claim the thing, debt, or duty, (provided he has incurred no independent liability to either, and has no interest), on the broad ground of protecting a mere stake-holder, and because this principle, although always recognized at common law, is excluded from practical application in the Courts of law, by their technical forms of pleading.
From these two powers is clearly derived jurisdiction to entertain a bill, at the instance of executors, for the purpose of construing wills, fixing the legacies, and having them paid (16) under the direction of the Court. This jurisdistion [jurisdiction] has been long exercised, and, in fact, is nothing *25 more than an extension of the doctrine of interpleader to the case of executors and legatees, under the power of the Court to decree payment of legacies — treating the executor as a trustee or stake-holder of a fund over which the Court has control. The jurisdiction is extended even further, and in cases of difficult and complicated accounts, a Court of Equity will have the accounts taken, the debts ascertained, and the assets, legal as well as equitable, paid over to the creditors under its direction — in these cases, the ingredient of account, (a very extensive head of equity jurisdiction), being also involved.
We can see no ground, upon which to base a jurisdiction, to allow executors to ask the opinion of the Court as to the future rights of a legatee; — for instance, "Who will be entitled, when a life estate expires?" — "When property is given to one for life, with a limitation over, does the first taker have the entire interest by the rule in Shelly's case?" — or, "What would be the consequence of a supposed state of facts that may hereafter arise?" True, these are matters of construction, but the questions cannot now be presented, so as to be settled by a decree. A declaration of opinion would be merely in the abstract, until existing rights come in conflict, so as to give the Court a subject to act on.
Again: we can see no ground for the jurisdiction to give an opinion to executors as to whether their past conduct was right, if they chose to act. It is then too late to ask the opinion of the Court, because the Court can then make no decree in the premises. Such a jurisdiction is directly excluded by the doctrine of interpleader. It is well settled, if the stakeholder pays over the fund to one of the parties, he comes too late; for he is not then able to put the fund in the power of the Court, so that it can be disposed of under its directions.
Again: we can see no ground for the jurisdiction to give advice to an executor in regard to his future conduct or his future rights. He must get such advice from a lawyer; but he can only get the advice (more properly, the direction) of the Court, when its present action is invoked in regard to something to be done under its decree.
These conclusions are almost self-evident, and are necessary consequents of the fact, that the Court can (17) only act by its decree, which must be made on an existing state of facts, so as to be the action of the Court, as distinguished from an abstract opinion. It is therefore unnecessary to pursue the discussion further, especially as no authority,dictum or intimation to the contrary was cited. It was considered proper to announce them, and to trace the limits *26 of the jurisdiction of the Court, in order to prevent the present bill from being drawn into precedent, whereby bills may become unnecessarily complicated, by the introduction of matters foreign to the jurisdiction.
1. Mrs. Bond is not entitled to the note taken by the testator as the price of the negro girl, Maria. The note is not embraced by the terms of the gift; it was not acquired by the marriage. The negro is not embraced; for, although acquired by the marriage, she was not a part of his estate atthe time of his death. It is said that, as the note was taken in the place of the negro, it ought to pass in her stead. There is no ground upon which the gift can have this effect. The words do not include the negro. But suppose she was included, the legacy was adeemed as to her by the subsequent sale, and it is the ordinary case of a testator selling an article given by his will, without any direction that the price should be substituted. The proviso, that "his estate is not to be liable for any income, rents, profits or interests arising or accruing from the property acquired by the marriage," can not have this effect. They were obviously inserted from abundance of caution, under a vague apprehension, (we suppose), of liability arising from what may have passed between the parties.
2. The same reasons apply, with additional force, to exclude Mrs. Bond's claim to the price of the negro, sold before the making of the will.
3. The same reasons apply to exclude her claim to the sums for which certain of the negroes were hired for 1851. The testator had disposed of a part of his estate in these negroes, to wit, his interest for one year; and the legacy was adeemed protanto, by this partial disposition, in the same way as if there had been a sale out and out. The widow takes them, subject to the right of the persons who had hired them. But she (18) is entitled to the value of the labor of the slaves not hired, for the residue of the year. As to them, there is no ademption, either partial or absolute, and the will takes effect from the death of the testator. There must be an account to ascertain the amount, after deducting the expense of keeping such as may have been chargeable, unless the parties agree on it.
4. Mrs. Bond is entitled to all of the furniture, except one carpet, purchased after the marriage, and before the execution of the will; but she is not entitled to any part of that which was purchased afterwards. As to that purchased soon after the marriage, no question is made. The words "all the furniture purchased on our marriage," taken by themselves, would *27
seem to mean such as were purchased about the time of the marriage, by way of outfit made necessary by that occurrence; but they may mean such as was purchased in consequence of "our marriage," and so include the second lot purchased some time afterwards, in addition, or by way of supplement, to the first lot — that turning out insufficient. The doubt, however, is removed by the additional words, "known as our new furniture."New is used in opposition to, and to distinguish it from, the old furniture, which the parties had before their marriage; and both lots of the new furniture are evidently embraced. The third lot, purchased after the execution of the will, is not included. A will takes effect at the death of the testator, and when general words are used, they are presumed to have reference to that time; because it is natural that the testator should be looking, and speak in reference, to the state of things when the will is to go into operation; e. g., a legacy "to the children of A," or of "all my horses," is presumed to have reference to the time of the testator's death. But when particular words of description are used, so as to identify a person or thing, the words necessarily have reference to the time of using them; for the fact of identification is a present act, inconsistent with the idea of a reference to a future state of things, and must refer to the time when it is made, e. g., a legacy to "John, the son of A," or of "my horse, Jackson," — if John or Jackson die, although the testator should have another son and name him John, or the testator should purchase another horse and name him Jackson, this John or Jackson would not be the person or the horse meant; for the inference that he (19) was speaking in reference to the state of things, as they might exist at the time when the gift was to take effect, is excluded by the fact of identification. Pearson v. Taylor,
5. Dr. Rascoe is bound to pay the balance due on his note. The mere fact of a legacy to a debtor has no tendency to show an intention to release the debt.
6. Mrs. Ashburn is entitled both to the legacy and the note. The mere fact of a legacy to a creditor has no tendency to show *28 an intention to make the legacy dependent upon a release of the debt.
7. The allegation that the property was delivered, subject to thedecision of the point, saves this interrogatory from the objection, that after a thing is done, it is too late to come for directions. We assume that the legatees took as mere bailees, the executors withholding their assent, and still having control of the property. The object is to present the question, Are these legacies liable to contribute to the payment of the debts? There is no room for doubt. The legacies to Mrs. Bond and Dr. Rascoe are specific, and the other property is given expressly as a residue, in trust to pay debts, c. The legacy to Mrs. Ashburn is also expressly exempted from liability to contribute to the payment of debts, by the words"after paying my debts and providing for my sister as above, all theremaining property," c.
8. The executors have delivered over to Mrs. Ashburn the land, negroes, stock, c., at her election. This property is now amply sufficient for her support; but they suggest that by possibility, from negligence or accident, it may not, at some future time, yield a support; and the Court is asked whether, in reference to such future contingency, the executors have a (20) right to require a release? Or has she a right to call on them, from time to time, hereafter, as her necessities may require? If so, how are they to meet the exigencies? The Court is not at liberty to answer, for two of the reasons above pointed out. If a release was necessary and proper, it should have been required before the property was delivered. After the thing is done, it is too late to ask for directions. Whether she may hereafter require further support, will depend on casualties, bad seasons, sickness, death of negroes, loss of stock, and so on, which may never occur. The question might have been put into a shape requiring the present decision of the Court, by making a suggestion that Mrs. Ashburn set up such a claim, and it was necessary to have it passed upon, so as to provide a fund; but there is no such suggestion — probably because she makes no such claim, and has no expectation or belief that she will ever hereafter come to want; or, if she does, that she will have a right to make a further requisition, inasmuch as she had made her election to take the property, and not its amount in money.
9. The testator, after directing the sale of a tract of land for the payment of his debts, gives the executors a wide discretion, either to sell enough of the personal property to pay the balance of his debts, or retain the property until such balance *29 can be paid out of the rents and profits. They have sold the land, and have exercised their discretion, by selling all the personal property except the negroes, and hiring them out for 1852, for an amount sufficient to pay the residue of the debts. They now suggest that the unadvanced children complain of this exercise of discretion, because it favors the others who are to pay no interest until the division, and ask — "Is the time when all the debts are or can be paid, at the end of this year, the proper time to divide? Or, were your orators under obligations to divide sooner? Or, have they power, without liability, to continue the estate in hand longer than the present year"? The first two questions came too late. The executors have exercised their discretion; the thing is done. The third question is obviously unnecessary, for there is no suggestion, even of a future event, which will require a longer postponement of the division.
10. "Can the executors make the valuation themselves? Can they designate others to do it? Can they (21) have it done under a decree of Court? If so, they prefer the latter, when the division shall be made." The valuation, directed by the testator, was to be made as soon after his death as could be done conveniently. This has not been done; and the valuation, contemplated by this question, seems to be in reference to the final division. If so, there is no objection to its being made under an order of Court; and the parties are at liberty to name fit persons as Commissioners, and to move for further directions in reference to the division.
11. The $1,500 draws interest from the death of the testator until possession is given of the land. It is a debt which fell due at his death, and of course draws interest until it is satisfied in the manner provided.
12. The point is not stated with clearness. It is this: the other legatees admit that Mrs. Bond and those in remainder are entitled to the specific tract of land, and one seventh part of the personal property, in case all of the advancements are accounted for; one sixth part, if one refuses; one fifth part, if two, and so on; but deny that the advancements are to be taken into the account for her benefit. She insists that she is entitled to the benefit of the advancements, and, as an unadvanced legatee, is entitled to a share of land and personal property both, equal to that of her co-legatees; or, if she gets no more of the real estate than the land devised to her, that she is entitled to the benefit of the advancements in the division of the personal estate and, in case all the advancements are accounted for, the *30 amount is to be added to the personal estate, and she takes one seventh part of the whole fund; in case one refuses to bring in his advancement then she takes one sixth part of the fund, and so on.
By the sixth clause, which is subject to future clauses, the residue of the estate, real and personal, is given to his executors for the benefit of his wife and six of his children; but the testator provides that "the benefit of this clause is not to be had by any one of the above seven named legatees, until he or she shall account for the advancements which he or she has received from me — my object being that those of the above seven legatees, who have been advanced, are to receive nothing, until those of them who have not been advanced shall receive (22) enough to make them equal to those advanced respectively. " He then specifies the amounts which have been advanced to four of them, and says, to his wife, to Lewis, and to James, he has made no advancements. He provides that no interest shall be charged on the advancements until the division, and then repeats, "the said four legatees are respectively to account for their said advancements, before they receive any part of my estate, whether real or personal; and should any one or more of the four refuse to account, the others are to have the whole benefit of this clause, in the manner hereinafter provided for." If this clause stood alone, there could be no doubt that Mrs. Bond was entitled to a share of the real and personal estate both, equal to that of her co-legatees; but in regard to the real estate, it is essentially modified. The land is all disposed of by specific devises. By the 9th clause, he gives certain land to Lewis and James, two of his children. By the 10th, he gives land to Esther, and by the 11th he gives land, subject to the life estate of Mrs. Ashburn, to Lucinda, who are two of the children. By the 12th, he gives a tract of land to his wife, and by the 13th he provides that, as the shares of land given to Lewis, James and Esther are unequal in value the difference shall be made up in the division of the personal estate, "So that of land and negroes both, these four of my legatees shall receive an equal amount, after the advancements to Esther and Lucinda are accounted for." The substance of this is, that out of the shares which each of these receive in the division of the negroes, those whose land is most valuable shall pay over to the others, so as to make them equal, both in regard to land and negroes. There is no such provision by which to make the wife's share equal in regard to land, and as the 6th clause is subject to be controlled by the subsequent clauses, she must be content with the tract of land devised to her. *31
The remaining question is, whether the 6th clause is modified also in regard to the personal estate. The intention to modify, announced in this clause, and the fact of having modified it, announced in the 13th clause, may be satisfied by the modifications in regard to the land. It is said this clause is modified by the 12th clause in which, after giving his wife a tract of land, he adds, "and also one-seventh part of the negroes and other personal property mentioned in the (23) 6th clause of this will, in case all the advancements should be accounted for, and one-sixth part, in case any one should refuse and not account for his or her advancement, and one-fifth part, in case any two should not account, and so on for the whole four." We are at a loss to perceive what modification this makes. If he had stopped, after giving her one-seventh part of the negroes and other personal property, the 6th clause would have been greatly modified; but as he adds,"in case all four account for their advancements, and one-sixth part, incase one refuses, and so on," his intention manifestly is, to give her the benefit of the advancements which are accounted for. How are advancements accounted for? By adding the amount to the value of the estate in hand, and dividing the whole by the number of the parties. Thus the amount of one share is found. The party advanced keeps his advancement, and takes enough of the estate to make up a share — leaving each of the others a like share. Here, for instance, if all bring their advancements into the account, the amount of the advancements will be added to the value of the negroes, and the whole be divided by seven. Mrs. Bond and the two unadvanced children will each take one-seventh part, so ascertained, and the four advanced children will take so many of the negroes as, added to their advancements, will also give to each of them one-seventh part of the whole. And thus, Mrs. Bond, in the words of the testator, will receive one-seventh part of the negroes and other personal property, in case all of the advancements are accounted for and so on. Again: if none of the advancements are accounted for, it is clear Mrs. Bond will be entitled toone-third of the personal estate. Why are the advancements required to be brought into the account? Can any reason be suggested why, whether a provision for a wife and her children shall be one-seventh or one-sixth and so on, or one-third of the estate in hand; should be made to depend upon the circumstance of the advancements being accounted for or not, unless that fact is to have some effect? The proposition on the part of the children is, if all the advancements are accounted for, Mrs. Bond takes only one-seventh part of the *32 estate in hand, not counting the advancements: if none (24) of the advancements are accounted for, she is to have one-third, an amount double that of the former! This is absurd. The advancements are to be accounted for, and yet are not to be taken into the account! The plain meaning and good sense of the thing is, if she has the benefit of the advancements to all four of the children, her share is to be one-seventh; if of the advancements to but three, her share is to be one-sixth, and so on; but if she has not the benefit of the advancements to any of them, her share is to be one-third; thus making an equality between the three of the seven legatees not advanced, and such of the others as account for their advancements — such as refuse being presumed to be content with what they have already received. So that, under the 12th clause, Mrs. Bond is entitled to the benefit of the advancements in the division of the personal estate; and taking into consideration that in the 6th clause the testator declares his object, in requiring the advancements to be accounted for, to be to put all of the seven named legatees on an equality, there is no further room for argument. (2) This subdivision being an alternative, need not be noticed. (3) The crops are given to the executors for the payment of debts, c., under the general terms of the will. A devisee claims by purchase under the will as by a conveyance, and consequently is entitled to the crop growing on the land at the death of the devisor, unless it be otherwise disposed of, expressly or by implication. In this case, there is a plain implication. The land is not given directly to Mrs. Bond, but with the other property, is given in the first place to the executors, who have a discretion to retain it until the debts are paid out of the rents; so it does not, as in ordinary cases, pass to the devisee at the death of the devisor. The discretion given to the executors to rent it out, necessarily includes a right to take the crop then growing, and apply it to the payment of debts. This is the purpose for which the land is first vested in them, and is afterwards to pass to the several devisees. Mrs. Bond not being entitled to the crop, it is unnecessary to consider the other branch of this subdivision.
13. Daniel, although born after the execution of the will, is provided for. So the case is not within the Act of Assembly. He and Henry are on the same footing, and take a remainder in the legacy given to their mother. The property (25) is given "to her for life, and at her death, to go to such child or children as she has had by me who may then be living." The words "has had by me" do not refer to the time of writing the will, but to the antecedent, "at her *33 death," as also the word "then," in the expression "who may then be living." The word "children" shows that he expected his wife might have more children than Henry, and he intended them to share the remainder with him. We presume the reason for not giving his children by Mrs. Bond as much as his other children, is on account of the gift to her of all the property acquired by their marriage.
14. Do the cotton-gin and carpets, after the death of Mrs. Ashburn, belong to the trustee of Lucinda Wheeler? This is a question, (suggested by the idea of these articles being attached to the land), which may arise at her death; but it does not arise and cannot be presented now. We are not at liberty to give an opinion upon it, for the reasons above pointed out. There is nothing now for the Court to act on. Its opinion would be merely in the abstract and not binding, if the question ever should arise, which may never be the case, as the gin and carpet may be worn out and worthless before the lady's death.
15. (1.) The executors having put this property into the possession of Mrs. Ashburn, to be used by her for life, the interest in it, subject to a free use by her, is a part of the estate to be divided among the seven legatees named in the 6th clause. After the division, the executors will have nothing more to do with it. The party to whom it is allotted, if it should hereafter become necessary, may take measures to prevent the removal or destruction of such of it, as is not of a nature to be consumed by the use. Smith v. Barnum,
(2.) When the legacy of Mrs. Bond is delivered to her, the assent to her legacy will be an assent to the remainder, and the executors will have nothing more to do with it. Smith v. Barnum, cited above.
(3.) It will be in the power of the executors to have these questions decided, by instituting proper proceedings, when they wish to have a new trustee. They do not present the question to be now acted on, but intimate an intention at some future time to rid themselves of the burthen of acting longer as trustees for Mrs. Wheeler, by substituting some other person as trustee, and ask how they can do so with safety, and so on? For the reason above stated, the Court is not at liberty to answer these interrogatories.
PER CURIAM. Decree accordingly.
Cited: Marrow v. Marrow,
