Wynns v. Burden, 58 N.C. 377, 5 Jones Eq. 377 (1860)

June 1860 · Supreme Court of North Carolina

58 N.C. 377, 5 Jones Eq. 377

WILLIAM D. WYNNS, Executor, against ABRAM BURDEN AND OTHERS.

Property undisposed of by will, must be applied in payment of debts, before legacies charged with the payment of debts can. be-subjeoted.

Cause removed from the Court of Equity of Bertie county.

The bill is filed by the plaintiff, as executor of George Wynns, praying the direction of the Court as to his duty arising, under certain clauses of his testator’s, will, which, among other devises and bequests, contains the following: “I give and bequeath unto my son, William D. Wynns, all the land I bought of Spivey’s heirs, lying on Cashie Swamp; all I bought of Joseph Pugh’s heirs, lying on Cashie Swamp; all the lands I bought of Barbara "Ward, adjoining the land I bought of Joseph Pugh’s heirs and others; also my Outlaw Mill, and all her waters and timbers, and all my negroes, both old and young, which I have not lent or given away that I hold in possession, to him and his heirs and assigns forever, after my just debts are paid. I also leave to be sold, to pay my debts, all the lands I have not lent or given away; also every thing else which belongs to me at my death, of any description, that I have not given away.” There were other specific bequests in the will. The testator left two notes undisposed of in his will, amounting, together, to four thousand dollars; also other property to the amount of eight hundred dollars, making in all, the sum of forty-eight hundred dollars undisposed of. The liabilities of his estate amounted to about thirty-eight hundred dollars.

The defendants, in this suit, who are the next of kin, contend that these debts, owing by the estate, shall be paid out of the negroes bequeathed to the plaintiff, or at any rate, that they shall contribute rateably with the notes and other property undisposed of by the will. The plaintiff contends that the undisposed of property be first applied in the payment of debts.

Cause set for hearing on bill, answer and exhibits, and sent to this Court.

No counsel for the plaintiff.

Wmston, Jr., for the defendants.

Pv,AR.soN, C. J.

It is a general rule that any fund, which is not disposed of by a testator, shall be applied to the payment of debts before property, which is given by the will, can be subjected ; in other words, a legatee is preferred to those claiming an undisposed of residue, for he is an object of the testator’s bounty, whereas, they take by act of law, simply because, as it is not given away, and there are no debts to which it can be applied, such residue would otherwise be without an owner, or remain in the hands of the executor.

In onr case the words, “ after my just'debts are paid,” which are added to the gift of land and slaves to William D. Wynns, had the legal effect of subjecting the property given to him, to the payment of debts, in exoneration of the property which is given away by the other clauses of the will, but not in exoneration of the property which is not given away. On the contrary, the appropriation of all the land and every thing ■else, of any “ description, that I have not lent nor given away,” to the payment of debts, makes that the primary fund, to the exoneration of the property given to William I). Wynns, in persuance of the principle above stated, no other disposition being made of this residuary fund.

Should there be a surplus of this fund after payment of debts, it is settled that the distribution among the next of kin, will be made without reference to advancements.

Per CuriaM, Decree accordingly.