Croom v. Whitfield, 45 N.C. 143, 1 Busb. Eq. 143 (1853)

June 1853 · Supreme Court of North Carolina
45 N.C. 143, 1 Busb. Eq. 143


<11 give unto my youngest child, W. H. W., the sum of $3000, to be due and paid -when he arrives to twenty-one years of age, out of the proceeds of the sale of my lands”*— in a will, creates a vested demonstrative legacy, upon which no interest is due until the child arrives at twenty-one.

A provision that a portion of the sum for which a slave shall be annually hired, shall be given to him is void j and the portion so attempted to be given will fall into the residue.

This was a bill filed by the complainant, as executor of the will of William H. Whitfield, deceased, against the. legatees and devisees in said will, in order to obtain a construction of certain clauses therein contained, and which are as follow :—

“ Itém 3d. — I give unto my youngest child, William Haywood Whitfield, the sum of three thousand dollars, to be due and paid when he comes to twenty-one years of age, out of the proceeds of the sale of my lands, and one negro girl named Luizar and her increase, and three-fourths of the annual hire of my boy Caleb,' for his support and maintenance, to him and his heirs forever.”

Item 11th. — It is my will and desire that my boy Caleb be hired out privately to the best advantage, by my friend Joseph R. Croom, or his successor, during the life time of the said boy Caleb, and three-fourths of the hire of said boy Caleb be applied as directed in the third item of this will, and the other fourth be given to the boy Caleb annually.”

There was also a prayer for direction in case of a deficiency of assets, a statement of which is rendered unnecessary by the opinion of the Court upon the clauses above.

The case was set for hearing at Spring Term, 1853, of the Court of Equity for the county of Lenoir, and was then sent up to this Court by consent of parties.

J. W. and J. H. Bryan, for the plaintiff.

No counsel appeared in this Court for the defendants.

Battle, J.

There is no difficulty in either of the questions upon which our opinion is desired. The bequest to the testator’s *144youngest child, William Haywood Whitfield, of three thousand dollars, is clearly a demonstrative legacy payable out of the proceeds of the land directed to be sold. It has a preference over the other legacies not specifically charged upon the same fund. It is a vested legacy, because the land is directed by the will to be converted into personalty. But it is not due and payable until the legatee shall arrive at the age of twenty-one years. It does not therefore bear interest until that period. As the funds in the hands of the executor, which will remain after the payment of all the other legacies, will be amply sufficient with the aid of the accruing interest, to pay the legacy in question to William H. Whitfield, upon his arrival at full age, it is unnecessary to decide the questions relative to the abatement of the legacies.

In answer to the remaining questions, whether the bequest to ■the boy Caleb, of one-fourth of his annual hire, is valid, we are bound by an uniform current of decisions to say that it is not, but is a void legacy, and falls into the residuum. It is the duty of the executor, as such to hire out said boy according to the directions of the will, and apply three-fourths of such hire for the support and maintenance of the legatee, William H. Whitfield, and ■ pay over the remaining fourth to the residuary legatees.

■ There must be a decree in accordance with this opinion, and the costs paid out of the funds in the hands of the executor.

Per Curiam. Decree accordingly.