Ledbetter v. Lofton, 5 N.C. 184, 1 Mur. 184 (1808)

July 1808 · Supreme Court of North Carolina

5 N.C. 184, 1 Mur. 184

Ledbetter vs. Lofton, Adm’r of Dunn

From Rowan

Support ^on'wWdf die writ was granted ÜS "(0 contradict Cendant ti<ws «aten is»u ’tíie ^cTead'uT on ¡1 motion ft”' c-eitio-

Certiorari was obtained by Ledbetter to repeal Let» of Administration granted to the defendant Lofton on l*ie esta}® °f Alien Dunn, deceased,; Ibis Certiorari was obtained pending a suit brought by Lofton as A dm3’ nistrator of Dunn against Ledbetter to recover sundry ne-groes in the possession of Ledbetter, in which suit several ^depositions had been taken. The Certiorari was obtained upon the affidavit of Ledbetter, who set forth that the letters * of administratidn had been granted to Lofton by the County Court of Montgomery, and after stating the facts upon the application to repeal the letters was founded, ho prayed that a writ of Certiorari might be granted, to directed to the Sheriff of Montgomery, command-him to goto the justices of the Court of Pleas and Q,iarfer Sessions for Montgomery county and to the Clerk of said court and cause them to certify the record of grant* big of letters of administration of the estate of Allen Dunn, deceased, to Lewis Lofton, td the Judges of the Superior Court of Law for the District of Salisbury. Upon tlie return of this writ of Certiorari into the Superior Court of Lsw for Salisbury District, Lofton filed his affidavit con* tradiedng many of the facts contained in the affidavit of Ledbetter and moved that the Certiorari be dismissed.&emdash;» Upon which the counsel for Ledbetter moved for leave to offer to the court affidavits to support the affidavit of Led- better upon which the Certiorari had been granted, and al- so to contradict the affidavit of Lofton. A motion was likewise made to read to the court certain depositions ta- ken in the suit aforesaid. And the following questions were ordered to be sent to this court for decision. First, Whether

First Whetheraffidavits filed at or after the return of the Certiorari can be read to support the affidavit npojS which the Certiorari was granted i granted i

fieient to pass not only the land, but all the interest the testator had. Debts and legacies stand upon the same footing in charging real estate — 2 U. Wins. 190, note 2— 3 Yes. jun. 551. In the case of Trott and others v. Vernon, 2 Yern. 708, the testator devised, “ that all his debts, legacies, and funeral expenses should be paid and satisfied in the first place,” and then disposed of his real and personal estate. The court held that the land was charged. So, where the testator devised his land to his brother, who was his heir at law, and gave certain legacies, and appointed his brother executor, desiring him to see his will performed , the real estate was charged with, the legacies — 2 Yern. 228. So where the testator devised all his lands to A. and the heirs of his body, remainder over ; and in another part of this will devised to A. all his personal estate, and made him executor, willing him to pay his debts ; this was held to be a charge upon the lands as well as upon the personal estate — 1 Yes. 411— Free. Ch. 264 — 1 Ves. 500 — 2 Ves. 271, 313 — Eq. Ab. 3 98, a. — 1 Yes. 45. And in a late case, where testator devised that his debts be paid, and then devised Ids real, estate, the Court held that the real estate should be subject to the debts.

TayioR, Judge,

delivered the opinion of the Court:

The testator directs the fund out of which the wife’s maintenance shall be made, but is silent.as to the pecuniary legacies. He is also particular in requiring his debts to be paid out of his personal estate; and this furnishes some implication, that he did not also mean to render that liable to the payment of the legacies. But when he devises the remainder of his estate to his sisters, &c. the necessary construction is, that they shall be entitled to whatever is left after the payment of his debts as well as legacies. It would be unreasonable to give the will such a construction as would give the sisters their residuum, and deprive the daughter, an only one. 0f her pecuniary legacy ; more especially when it cannot be-collected from the will, that any intention of that sort wag entertained by the testator.