Boon v. Rea, 36 N.C. 71, 1 Ired. Eq. 71 (1840)

June 1840 · Supreme Court of North Carolina

36 N.C. 71, 1 Ired. Eq. 71

WILLIAM BOON, Ad’mr.cf JOSIAH LEAK et al. vs. JACOB REA, Adm’r. of HENRY LEAK et al.

Where a testator, after giving several pecuniary legacies, directed that his slaves, together with all his stock and other property of every description, should be sold, and the remainder of the monies arising therefrom, after paying the several legatees, should go to E. L.; and ip a codicil added as follows: “ I desire that all the negroes before mentioned, that are left to be sold, instead of credit, must be sold for cash down; and as soon as the money that is raised out of my estate, to be paid over to the legatees as soon as collected,” it was held, that certain bond and notes which the testator had, and of which no particular mention was made in his will, were, after the payment of his debts, to be applied in discharge of the general legacies; and that the latter were not to be paid exclusively out of the sales of the negroes, stock, &c.; the remainder of which was given to, E. L.

Henry Leak, by his will, after giving several specific legacies in slaves, &c., and several pecuniary legacies, bequeathed as follows;

“ Ninthly. It is my will and desire that all the remainder of my negroes not given away, to be sold — those not above the ages of ten years to be sold with their mothers, together with all the stock and other property of every description; and the monies arising from such sale, after paying over to the several legatees, &c., as above mentioned, I hereby give and bequeath unto Elizabeth Leak all the remainder.”

The testator afterwards added a codicil to his will; the first clause of which was as follows:

“ I desire that all the negroes before mentioned, that are left to be sold, instead of credit, must be sold for cash down; and as soon as the money that is raised out of my estate, to be paid over to the legatees as soon as collected.”

The testator had due to him, at the time of his death, several bonds, notes, and other evidences of debt; of which he made no particular mention in his will. The administrator with the will annexed, out of these bonds, notes, &e., paid the debts of the testator, and retained, for his commissions as administrator, leaving a balance of this fund of $>182 90 ots. The plaintiffs, as the next of kin of the testator, claimed this balance as property undisposed of by the will. The defendants contended that it was to be applied in paying the pecun^ar7 legacies; and that the property left to be sold by the ninth clause, was intended by the testator to go in aid of this balance to pay general legacies, and the remainder of the fund was to go to Elizabeth Leak; and that the testator did not intend to die intestate as to any of his property.

B. F. Moofe and Badger for the plaintiffs.

No counsel appeared for the defendants in this Court.

Daniel, Judge,

after stating the case as above, proceeded as follows: There is no dispute but that the debts of the testator were properly paid by the administrator, out of the bonds, &c., left by him. And we are of the opinion, that the property mentioned in the ninth clause of the will, was directed to be converted into money, for the benefit of Elizabeth Leak, after the satisfaction of the general legacies. There is nothing in the phraseology of this ninth clause, to induce us to say that the general legacies were intended to be paid exclusively out of the produce of the sales of the property mentioned in it. But it is said, for the plaintiffs, that the codicil shews that was the testator’s intention. We do not think feo. By the codicil, the testator directs the slaves before mentioned in the ninth clause, to be sold for “ cash dozen” The codicil then proceeds thus: “ and as soon as the money that is raised out of my estate, to be paid over to the legatees, as soon as collected.” The ready money to be raised by sale of the slaves, is not expressly directed immediately to be paid over to the legatees, but the money that is to be raised out of his “ estate;” and that, as soon as collected. The codicil, instead of restricting and fixing the property mentioned in the ninth clause of the will, as the only and exclusive fund for the payment of the general legacies, shews that the general legacies were to be paid out of his estate generally, viz. out of all such of his personal estate as had not been specifically given away by the will. The testator knew that his bonds, notes, &c. would not be sufficient to pay his debts, expenses of administering on his estate, and his general legacies; therefore, he charged the fund mentioned in the 9th clause, in aid to effect the payment of the legacies, and the remainder of that fund which should not be exhausted in aid, &c., was to go to Elizabeth Leak.

We are of the opinion that the bill must be dismissed.

Per Curiam. Bill dismissed.