16 N.C. 87 | N.C. | 1827
"When I am dead, I wish my brother W. H. B. to have my man Will, to do as he pleases with him, during his natural life. After that, I wish him to go to my brother H. G. W., to do as he pleases with forever. To the children of W. H. B. I leave little Flora and her children, to be equally divided among them. To H. W. B., Grace and her child, to do as he pleases with. To A. I. W., daughter of H. G. W., big Flora and her whole family that I own, I leave to her. To J., and J. P., $100 to each. To David J. White, a likely negro boy, between 8 and 10 years old. To Ann J. Colvin, a likely negro girl, between 4 and 5 years old. The graveyard walled in, a tombstone put over my mother and self, etc., etc. To R. W., my clothes. To A. J. W., my books. (88) To M. A. B., the furniture of my room, say bed, drawers, etc. Pay all my just debts. I would rather you would buy negroes for David J. White and Ann J. Colvin than to separate families. I wish all this done at once, so as to save their being scattered." *62
The plaintiff insisted that the legacies left them were specific, and in case of a deficiency of assets ought not to abate in proportion to the others; and that if they were not specific, that there were assets sufficient to satisfy them. The prayer of the bill was for an account and payment of the legacies.
The defendant insisted that the legacies to the plaintiffs were general; that all the property of his testatrix was specifically bequeathed, and that there were no slaves of the kind bequeathed to the plaintiffs; denied assets, and rendered an account, from which, after exhausting the assets not specifically bequeathed, a balance appeared due the estate.
The cause was heard upon bill and answer. No counsel appeared for either party in this Court. The two questions presented for decision by this record are not of very easy solution, and the labor and difficulty have been increased by the want of counsel to argue them and the absence of all reference to authorities.
The first question is the bequest to D. J. White of a likely negro boy, between 8 and 10 years old, and the bequest to A. J. Colvin of a likely girl between 4 and 5 years, be specific or general legacies; for it is too clear to require a moment's examination that the legacies of slaves to the other legatees are all specific.
The other question is whether, if they should prove to be general legacies, the specific legatees are liable to abate pro rata for the purpose of making them good, in the case which has occurred of a deficiency of assets to purchase them.
(89) On the first question the familiar definition of a specific legacy, in which all the writers concur, is that it is the bequest of a particular thing, distinguished from all other things of the same kind — as of any chattel that would vest immediately upon the assent of the executor. Hence, money may be a specific legacy, if properly described, as a sum of money deposited in a chest or bag, or in the hands of a particular person. But if a sum of money is bequeathed, to be laid out in the purchase of lands, or to be vested in particular securities, it is a mere pecuniary legacy; for the legatee cannot, in that case, sever that from the general fund, so as to establish a right to the identical sum in specie. And this he must be able to do in order to make his legacy specific. Thus, in a bequest of stock, if the testator owned it at the time, it is specific; more especially if it can be collected from the will that the testator intended to confine the bequest of the stock he had on hand at the time of his death — as if the legacy be of my stock, or part of my stock, or in my stock. Ashburner v. McGuire, 2 Brown's C. C., 112. *63 But if a testator did not own the stock when he made his will, or died, but directed it to be purchased out of his personal estate for particular persons, on the question whether these legacies were specific or pecuniary, it was held by the Court that they were pecuniary. Gibbons v.Hall, 1 Dickens, 324. If in the case before us there had been negroes belonging to the estate of the ages described in the will beyond those allotted to the specific legatees, which the executor might have delivered over to the plaintiffs without separating families, they would have been, without doubt, specific, although not particular chattels specifically described and distinguished from all other things of the same kind; but comprehended within the second class of specific (90) legacies, described by Lord Hardwicke as something of a particular species which the executor may satisfy by delivering something of the same kind, as a horse, a ring, etc. Purse v. Snaplin, 1 Atk., 415.
These authorities, and the reasoning extracted from them, lead me to the conclusion that the legacies to the plaintiffs are general and pecuniary; and here begins the real difficulty of this case, for it is a claim on the part of pecuniary legatees to make specific legatees abate, upon a deficiency to pay the first-mentioned legacies; whereas the commonly received opinion is that the advantage specific legatees have over pecuniary ones is that they are not compellable to abate upon a deficiency of assets to pay general legacies. This is the general rule. 2 Vesey, 56. And upon first reading the case, it appeared to me that the law was decidedly against the plaintiffs. But upon a more attentive consideration of the will, and the situation of the estate, and upon an anxious search of the authorities, I think the plaintiffs are entitled to what they ask.
It was the manifest intention of the testatrix that all the legatees should have their legacies, if the estate was sufficient. They were all equally objects of her bounty; and if the specified legatees receive their respective shares in full, that intent, and that bounty, will be frustrated. And what seems a conclusive proof of this is that she had bequeathed all her negroes to the specific legatees, so that from what she had then bequeathed the two slaves intended for the petitioners must have been deducted, if it could have been done without separating families; for so I understand the direction to her executors. Circumstances might be such at her death that two negroes of the description bequeathed to the petitioners might be unconnected with family ties, by the death of their parents or others; and in the occurrence of that state of things they were to be allotted to the petitioners from the negroes bequeathed. But if that should not happen, they were to be purchased from (91) the residuum of her estate. *64
It does not appear that the testatrix owned anything but what she disposed of by her will. There is no proof that she was entitled to any real estate, nor that she had any reason to believe that there would be a residuum of the personal estate after the payment of debts and legacies. On the contrary, the accounts exhibited by the executor show that he was, until a very late period, and even after the account was stated, in advance to the estate to the amount of several hundred dollars. Unexpected circumstances have replaced his advances, except to an inconsiderable amount; but he is still a creditor.
These views of the subject impress it forcibly on my mind that it is essentially just and equitable, and in furtherance of the undoubted intention of the testatrix, that the petitioners should receive their legacies, or at least a ratable proportion of them, with the other legatees. But this belief would not for a moment incline me to violate or disregard any rule of law to effect objects, however desirable. It could not be expected that much authority could be brought to bear on a case marked with such special circumstances; but I have found one which appears to be entirely and fully applicable to this case, the correctness of which has since been frequently recognized by writers of established reputation, and the illustration it affords adopted and applied to the establishment of that exception to the general rule by which alone these petitioners could have relief. "But if a man devises specific and pecuniary legacies, and afterwards says that such pecuniary legacies shall come out of all his personal estate, or words tantamount; or, if there is no other personal estate than the specific legacies, they must be intended to be subject to the pecuniary legacies; otherwise, he must mock the legatees." Sayer v. Sayer, Prec. Chan., 393.
(92) A very accurate writer on the law of legacies cites the case thus: "A case may happen in which specific legatees will be obliged to share, in favor of pecuniary legatees. Suppose, then, a person possessing a personal estate at B. and C. only, bequeath it specifically to D. and E., and then gives a legacy to F. generally; the personal estate at B. and C. will be liable to the payment of this legacy, as there never was any other fund out of which E.'s legacy could have been satisfied." 1 Roper on Legacies, 418. The same case is cited by Mallow in his Treatise on Equity, edited by Fonblanque, 2 vol., 377, and by Toller on Executors, 266, and is nowhere, that I have discovered, doubted or denied.
There never was in the case before us any other fund out of which the general legacies could be satisfied except the specific bequests; and, therefore, I think it applies strictly to this case. My opinion is in favor of the petitioners; and an account should be taken of the respective value of the specific and general legacies, and an account of the assets. *65
PER CURIAM. Let the master ascertain the value of the specific legacies, and of those to the plaintiffs, and let him make an account of the assets not bequeathed.
Cited: White v. Green,
Overruled, as to 2d headnote, White v. Beattie, post, 324.
(93)