That part of the crop in question devised by Mary to her daughter Sarah Eliza, never vested in James so as to make it is property. He acted only as an Executor of Archibald M’Allister, and it does not appear that any act of his extended to taking possession of one half of said crop as his own, and without such interference we must presume he acted as Executor. 2 Blac. 433.
Berry v. Executors of M'Allister, 1 N.C. 100, 1 Cam. & Nor. 100 (1800)
June 1800
·
North Carolina Court of Conference
1 N.C. 100, 1 Cam. & Nor. 100
William G. Berry and Sarah Eliza his wife, vs. the Executors of Mary M’Allister.
This was a petition exhibited in Wilmington Superior Court, for a distributive share of the es-tate Of Mary M’Allister, and the following facts were agreed upon by the Parties and their Counsel:
1. That Archibald M’Allister being seised of a plantation in Brunswick county, called Belleville, and possessed of sundry negroes who had been usually employed upon it, devised the plantation and negroes to his wife Mary M’Allister for life, remainder to his brothers and sisters, of whom James M’Allister was one, and died in the year 1793.
2. That after the death of Archibald, Mary, who was tenant for life, and James, who was one of the remainder men, lived upon Belleville plan*101tation, and made one family; but James had the superintendance and management of the plantation and negroes, and in the Spring of 1794, planted the crop of rice in question.
3. That about the month of May, 1794, whilst the crop was growing, Mary died, leaving a daughter the petitioner Sarah Eliza, and a son, to whom file devised the residue of her estate equally, which residue included her share of said crop, and appointed James M’Allister and Benjamin Mills, a-mongst others, her Executors.
4. That upon the death of Mary, James proved her will, and alone qualified as Executor, continued to superintend the crop in the same manner as he had done in the life-time of Mary, and when it was grown, reaped and stacked it.
5. That in the month of January, 1795, after the crop was reaped and housed, James married the petitioner Sarah Eliza, the daughter of Mary, to whom Mary had devised one half of the residue of her estate as aforesaid.
6. That about the month of April or May, 1795, James M’Allister made a contract with one William Prestman, of South-Carolina, for the sale and delivery of a large quantity of rice far exceeding the whole crop aforesaid, but no mention was made in said contract of the crop in question, nor was the crop ever delivered, nor during the life of James M’Allister, threshed out, but remained at his death on Belleville plantation, in the same state and condition which it was in at the time it was reaped and stacked as aforesaid.
*102 7. That James M’Allister died about the month of September, 1795, leaving his wife Sarah Eliza, who is since married to the petitioner William G. Berry, and upon the death of James, Benjamin Mills, one of the Executors named in Mary’s will, qualified, took possession of the crop which remained upon Belleville as aforesaid, caused it to be threshed out, and, fold at public vendue as the property of Mary, and took bonds payable to him-self as her Executor.
Now the question submitted for the opinion of the Court, is, whether that half of the crop which was devised as aforesaid by Mary M’Allister to her daughter Sarah Eliza, was, by the aforesaid acts of James M’Allister, vested in him, so as to go to his Administrator, or whether it survived to his widow ?