Perry v. Terrel, 21 N.C. 441, 1 Dev. & Bat. Eq. 441 (1836)

Dec. 1836 · Supreme Court of North Carolina

21 N.C. 441, 1 Dev. & Bat. Eq. 441

GUSTON PERRY, Ex’r of JAMES MAXWELL, v. TOLLIER TERREL, Ex’r of MARY MAXWELL.

A devisee for life is entitled to the crop growing at his death; as is a legatee for life to the increase of cattle, and the interest of money.

Jambs Maxwell made his will, and therein appointed his wife executrix, and gave to her his whole estate, real and personal, during her life, with a discretionary authority to sell such parts of the personal estate as she might choose, with remainder at her death, as to one-third, to such of her relations as she might appoint; and as to the other two-thirds, to certain other persons mentioned in the will. Mrs. Maxwell, upon the death of her husband, in 1831, proved the will, and took the estate into her possession. The testator left debts due to him at his death, and the executrix also sold a part of the estate, namely, a negro, some merchandize, and part of the cattle, and other perishable things: and all those moneys she kept out at interest. Some of the slaves, likewise parts of the horses, cattle, and other stock, she did not sell, but retained them for her use, on her husband’s plantation, where she still resided; and while she held them, they increased. At her death, on the 5th November, 1834, she left a crop on the land made that year, and then ungathered.

The bill was filed by the representative of the husband against the representative of the wife, and stated, that' upon the death of Mrs. Maxwell, the defendant came to a settlement with the plaintiff, and accounted with him for the money due to the husband as principal or interest at the time of his death, and also for the prices of such parts of the estate as she had sold; and also had delivered to the plaintiff the negroes and all their increase, and the original stocks of horses, cattle, sheep and hogs, or such parts as were then alive; but that the defendant refused to account for the interest that had accrued upon any of the moneys during the life of Mrs. Maxwell, and to deliver to him any of the increase of the stocks during the same period ; and also to surrender to him the crops that were made, but not gathered, at the death of Mrs. Maxwell: and the bill sought relief specially in respect of such interest, increase, and crops, and nothing else. To the bill the defendant put in a general demurrer, which was allowed by his Honor Judge Settle, in the Superior Court of Franklin, on the last Spring Circuit, and the bill dismissed: from which the plaintiff appealed.

W. H. Haywood, for the plaintiff.

Badger, contra.

Ruffin, Chief Justice.

From the very special framing of the bill, it is obvious, that the parties did not propose entering into a general account of the estate, but intended to confine the controversy to the three points, on which particular relief is prayed: we need not therefore say anything upon the general duty of an executor to sell all personal things, except slaves, given as a residue for life and then over, nor inquire whether this will discharged Mrs. Maxwell as executrix from that duty, by the discretion given to her for her convenience as a legatee. We understand from the bill, that for all the specific articles originally composing the residue of the estate, the parties have satisfactorily accounted.

Upon the questions distinctly submitted by the bill, there can be no doubt. A tenant for life is unquestionably entitled to the emblements on the land devised, at the period of her death; and as certainly to the increase of animals during her time. Where money is bequeathed for life, the very thing given is the interest; and that only. The remainderman can no more claim the interest accrued in the time of the. particular legatee, than the latter can claim a part of the principal.

December, 1836.

The decree is therefore affirmed with costs; to be paid by the plaintiff, in both courts.

Per Curiam. Decree affirmed.