Elliott v. Posten, 57 N.C. 433, 4 Jones Eq. 433 (1859)

Aug. 1859 · Supreme Court of North Carolina

57 N.C. 433, 4 Jones Eq. 433

THOMAS F. ELLIOTT and others, against SAMUEL POSTEN and Wife.

The increase of a female slave, bom after the mating of a will, made in 1850, and before the death of the testator, does not pass under a bequest of the mother.

A wagon was held to pass under the terms, “ all my farming utensils.” Property not disposed of by a will, always forms the primary fund for the payment of debts and funeral expenses.

Cause removed from the Court of Equity of Cleaveland county.

The plaintiffs are the brothers and sisters, nephews and nieces of James P. Doggett, and filed this bill against his widow, who is the almost universal legatee, and executrix óf the said James. She has, since the death of Doggett, intermarried with the defendant, Posten.

It is alleged that a negro child was born of a certain female slave, Mahala, given by the will to Mrs. Posten, after the making of the will, and before the death of the testator, and that a certain wagon and a buggy were left out of the will; that there is no residuary clause in said will, and, therefore, that this property goes to the next of kin, by the statute of distributions. They allege, in their bill, that this property has been sold by the defendants, and has been bought in by themselves, or for their benefit, at an undervalue, and that the same is now in their possession. The prayer is for a resale of the property mentioned, and for an account and settlement.

‘ The defendants admit the birth of the child, mentioned in the bill, before the death of the testator, and that the buggy was left out of the will. They say, however, that in the will of Mr..Doggett, is the following clause, “I give and bequeath to my wife, Anne Jane Doggett, all my household and kitchen furniture, also, all my farming utensils and ox-cart and oxen,” and that the wagon in question passed to her as part of the farming- utensils. They state, in their answer, that the defendant, Mrs. Posten, supposing she was entitled to all the property, paid the debts of her former husband’s estate out of her own means, but they insist that if this property, or any part of it, is not disposed of by the will, that it is the primary fund for the payment of debts, and that they are entitled to reimbursement out of it, for the funds advanced towards the testator’s debts. Replication, commission and proofs. The cause being set for hearing, was transmitted.

Shipp, for the plaintiff.

Lcmder and Avery,, for the defendant..

Rattle, J.

There is nothing in the will of J ames P. Doggett, which was executed in the year, 1850, to take the child of the woman, Mahala, which was born after that time, and before the death of the testator, out of the general rule, and make it pass under the will. The child is, therefore, undisposed of, and belongs to the next of kin. The same is the case with respect to the buggy; but, we think the wagon was bequeathed to the widow under the general description of all the testator’s “farming utensils.” The word “utensil,” according to Webster, is derived from the latin verb “utor,” and signifies “ an instrument; that which is used; particularly an Instrument or vessel used in a kitchen or in domestic or farming business.” A wagon “is an instrument” generally used in farming business, and in some parts of the country almost as necessary as a plough or a hoe. In 1 Eoper on legacies 211, we find it stated that the word “utensil” will embrace every thing that is “ necessary for household purposes or applicable to the trade or mystery to which the term has reference.” The argument that the extent of the term is narrowed in the will, now before us, by the insertion of the word “ oxcart,” will prove too much, as it would exclude “ oxen ” from the import of the term “stock of cattle.” The word “ox-cart and oxen,” were evidently added out of abundant caution.— The plaintiff's, as the next of kin of the testator, have a right to treat the sale and purchase of the negro child, in question, by the executrix and her husband, as a nullity, and to have it resold for the purposes of a partition among them. The defendants are entitled to a reasonable compensation for their expense and trouble in keeping and taking care of it. The defendants must account for the buggy at a fair price, according to its value at the time of the testator’s death. The debts, including the funeral expenses of the testator, are a charge upon the negro child and buggy, as personal chattels undisposed of by the will, as such property always forms the primary fund for the payment of debts, in the absence of a special provision in the will to the contrary. There may be a decree for a sale and an account, upon the principles declared in this opinion.

Per Curiam, Decree accordingly.