Everitt v. Lane, 37 N.C. 548, 2 Ired. Eq. 548 (1843)

June 1843 · Supreme Court of North Carolina

37 N.C. 548, 2 Ired. Eq. 548

JOHN EVERITT, EXECUTOR, &c. vs. WILLIAM K. LANE & AL.

Where a testator gave to different legatees certain negroes by name, and then gave to another legatee 44 all the balance of my negroes which I am possessed ofHeld that this last was a specific legacy of slaves, as much so as if each slave had been named, and that the other legacies must abate rateably with this for the payment of debts, in case of a deficiency of general assets. \

'A bequest to A. of 44 five head of horses, one yoke of oxen, three pens of hogs, five cows-and calves, and five sets of farming tools,” is rendered specific by the addition to each class of the designation 44 her choice.55 *

So a bequest of 44one carriage’5 and 44 one sot of blacksmith’s tools55 is specific, when it is shewn that the testator had but one carriage and one set of blacksmith’s tools. When upon the face of the will it appears, that the testator meant to dispose of something in kind, in the application of the bequest to its subject matter, it may be shewn that he had but one of that kind.

A legacy to the testator’s widow of 44 one year’s provisions” is nota specific but a general legacy.

This cause having 'been set for hearing at the Spring Term 1843of Wayne Court of Equity, was at that Term transmitted, by consent of parties, to the Supreme Court, upon the bill, answers and report of the master.

The bill was filed by the plaintiff, as executor of Charles Hopton, and the legatees in the said will mentioned were made parties defendant. The bill states, that, in March 1838, Charles Hopton departed this life, having first published his last will and testament in writing duly attested, to convey real and personal estate. Tho only material parts of this will are the following: “1st. I give and bequeath unto my brother Wm. K. Lane, one hundred and fifty acres of land adjoining his own land, so as not to take any of my cleared land. Also one negro boy by the name of .lacob, to him and his heirs and assigns forever. 2ndly. I give and bequeath to Barbara Ann Everilt, one negro girl by the name of Lenar, to her and her heirs and assigns forever.— 3dly. I give and bequeath unto Lavinia Everitt one negro girl by the name of Lavinia, to her and'her heirs and assigns forever. 5thly, My will and desire is, that three of my negroes be sold, to-wit, Bill, Burwell and Edmund. 6tfdy. I give and bequeath unto my beloved wife the following property, viz: all the balance of my lands and negroes which I am possessed of, and all my household and kitchen furniture — one year’s provisions — five head of horses, her choice; one carriage — one yoke of oxen, her choice — three pens of hogs, her choice. — five cows and calves, her choice — five sets of farming fools, her choice — one set of blacksmith’s tools, to her and her heirs and assigns forever.”' The bill goes on to state, that the will was duly proved, and the plaintiff qualified alone as executor thereof — ánddook into his possession all the personal estate of the testator. The bill then represents, that the provision made directly in the said will for the payment of the testator’s debts, was the sale of only three slaves, to-wit, Bill, Burwell and Edmund, which the plaintiff had sold, and the proceeds of their sale amounted to $1505-75 — that in the legacy left to his wife in the 6th item of the testator’s will were the following slaves, to-wit, Salisbury, &c. (naming them to the amount of 21,) and thir increase, now amounting to five — that there were outstanding debts to a large amount due and owing by his testator, for the'payment of which the provision made in the will was utterly inadequate — that by an accounttaksn under the direction of the County Court of Wayne it appeared, that there was a balance due to the plaintiff as executor, of $10,061 38, which sum was now due him, and should be paid out of the estate of the testator, and he prays he may be substituted to the rights of the creditors,in all respects, until he be reimbursed for the same. The bill further states, that the plaintiff is not advised how this sum should be raised out of the personal estate — that William K. Lane, Barbara Ann Everitt and Lavinia Everitt, claim that their legacies are specific, and allege that the legacy in the ■6th item of the will to the widow, is a residuary legacy; and that therefore their legacies should not abate for the payment of the said sum, until the said residuary legacy should be exhausted. And on the other hand, Philip Hooks (who hath intermarried with the widow of the said Hopkins,) and his wife contend, that the legacy left the said widow is also specific, and should only abate in equal proportions with the other specific legacies left in the said will. The bill concludes with a prayer, that the plaintiff may be advised- as to the proper construction of the said will, and as to the rights of the said legatees respectively, and as to the duty of the plaintiff in the premises, that by a decree of the court he may be advised as to the true nature- and legal operation of said bequests — that the plaintiff may be substituted to the rights of the creditors, whom he has paid, until he be reimbursed, and that an account of his executorship may be taken under the direction of the court.

The defendants answered severally, and admitted all the allegations ot the plaintiff’s bill, except that they knew nothing of his disbursements, or the state of his accounts as executor, and joined in his prayer that an account might be taken-under the direction, of the court. They severally, too, set up the conflicting claims set- forth in the plaintiff’s bill.

A reference was made in the court below to the Clerk and Master, who reported that there was a balance due to the plaintiff as executor, of ten thousand one hundred and ninety dollars, thirty eight cents, on the 1st of April, 1843. This report was confirmed by the Court.

Hasted for the plaintiff.

J. H. Bryan and Mordecai for. the defendant's.

Gaston, J".

The question submitted for our decision in this case is, whether, there being a deficiency of assets to pay the-debts of the testator, the legacies bequeathed to the defendants, William K. Lane, Barbara Anne Everitt, and Lavinia Everitt, shall abate rateably with the legacy bequeathed to the defendant Elizabeth Hooks, formerly the wife of the testator, or whether the burthen of meeting this deficiency shall be thrown exclusively on the latter. As it is indisputable that the legacies to the first named defendants are specific, the solution of this question depends upon the enquiry whether the legacy to’ the testator’s' wife be specific also.

A legacy is specific, where it is a bequest of a specific part** of the testator’s effects, so distinguished from' the rest thereof, that, upon the assent of the executor, the property in the thing bequeathed vests in the legatee — an individual legacy, which cannot be satisfied but by the delivery of the identical subject. On examination of the bequests in favor of the defendant Elizabeth, it Will be found, that all the things therein mentioned are enumerated as parts of the festafor’s property : “ I give and bequeath to my beloved wife the following property, viz: all the balance of my negroes, &c.” and, with the exception of what may be comprehended under the description of “one year’s provisions,” they are as distinctly specified as the things’which are named in the bequests to the other defendants. 1 The gift of “ the balance’ of my negroes which I am possessed of,” is a gift of each of the testator’s negroes not previously named. The bequest of~ “ five head of horses, one’ yoke of oxen, three pens of hogs, five cows and calves and five sets of farming tools,” is rendered specific by the addition to each class of things of the^ designation “her choice.’’ ' See 2d Williams on Exrs. 739.’ Richards v Richards, 9 Price 219. The “ one carriage” and the “ one set of blacksmith’s tool’s” intended1 by the testator, are put beyond doubt by the admitted fact that he had but one carriage and one set of blacksmith’s tools. When upon the face of the wifi it appears that the'testator meant tc dispose of something in kind, in the application of the bequest to its subject matter, it may be shewn that he had’ but one of that kind to be disposed of. Junes v Johnson:, 4 Ves. 5(58. But that part of the legacy to his widow which is embraced within the terms “ one year’s provisions,” cannot we thi'nk be deemed specific. If it refers to a corpus, it designates no particular part of that corpus, but gives so muck thereof as may be adequate for her subsistence for one year. It is true, that in cases of intestacy, and in cases of testa-cy, where the widow records her dissent from the will of her husband, the law assigns to the widow a year’s provision out of her husband’s estate in preference even to the demands of creditors. Rev. St. ch. 121, sec. 18, 19, 20, 21, * 22. And it can scarcely be questioned, but that this part of her legacy was given by the testator by way of analogy to the year’s provision, so assigned by law. But here she takes the “ one year’s provisions” as of his bountjr, therefore as a legacy, and of consequence subject to the payment of his debts. And being a legacy, it must be determined to be a specific or general legacy by the same rules, which govern in discriminating between legacies in other cases. There should be a reference to ascertain the values of the respective bequests of personal property made by the testator, and it must be declared that the defendant Elizabeth is bound in the first place to satisfy the demá-nd of the plaintiff to the extent of the value of the year’s provision she may have received, and that the residue of the plaintiff’s demand is to be satisfied out of the other parts of the legacy to the said defend*ant, and the legacies to the defendants William, Barbara and Lavinia, pro rata.

Per CuRiJiKf. Decree accordingly.