(after stating the case). The first inquiry arising upon the exceptions is as to the regularity of the action of the Court in admitting the claim to the fund made in the interplea.
Proceeding supplementary to execution is but a prolongation of a pending action, and. as full redress, both in law and equity, may now be obtained by a resort to this statutory remedy, it is but a substitute for the former creditor’s bill, and partakes of its essential nature as a new and independent, though subsidiary suit, as held in Rand v. Rand, 78 N. C., 12; Hinsdale v. Sinclair, 83 N. C., 338. Hence the right to sue out the process rests upon the same general conditions and limitations as the creditor’s bill in the former practice, and it is in accord with the policy of the new system to settle all controversies about the right to property in litigation, where the nature of the action will .admit, to allow a new claimant to come in and interplead. The Code, §189.
2. The executor having stated his account with said Francis and Henry as a joint account and as equally interested in the fund, when in fact they were not, it was entirely competent for the referee to adjust it properly between them, a matter in no way injurious to the executor, for the amount-remains unchanged, thus showing that none of it belonged to the judgment debtor, and that the said Francis was entitled to it all.*
*5623. Tlie next exception is to the finding that the deed conveyed no interest in the fund subject to the plaintiff’s process.
The exception, in our view, is well taken, and there is error in overruling it. When the assignment was made the land remained as it was when the testator died. The terms of the devise and the description of what was intended to be transferred in the deed from the one to the other of the parties to it have been already set oxit and need not be repeated. The estate in remainder during the wife’s life descended to the heirs-at-law, of whom the said Prank and Henry were two, and these latter had only a fractional share, unless there is some other clause in the will by which it is devised, and their interest was only in the proceeds of sale when the property was sold. Ferebee v. Proctor, 2 D. & B., 439; McLeran v. McKethan, 7 Ired. Eq., 70; Beam v. Jennings, 89 N. C., 451.
Now, the conveyance of the property in this condition is of “ all the right, title and interest of the assignor devised by the testator,” in and to the undivided property of whatever nature, situated in blocks designated by numbers in the plan of the city.
In the absence of other dispositive words in the will to interrupt the descent, the fractional shares so descending to all the testator’s children are not embraced in the deed, which is confined to such interest as these brothers derive under the will, and not to such as come to them as heirs-at-Jaw. The legal estate does not pass, and consequently -nothing can hut what is given in the will. The instrument is unmeaning unless the construction put upon it embraces -the moneys to which the assignors would become entitled -when the conversion is made by the executor.
Again, this interest is in the undivided property, of whatever nature, in the specified lots, that is, in what may be derived from the sale of the lots. In our opinion, such is -the manifest intent of the parties, and it is sufficiently de*563fined in the terms employed to give it full effect. Lowdermilk v. Bostick, at this term.
There is error, and the judgment must be reversed, to the end that the cause may proceed in the Court below.
THE DEFENDANT’S APPEAL.
The facts are stated in the opinion.
After disposing of the plaintiff’s appeal it was declared that the judgment debtor had no interest in and was entitled to no part of the moneys paid into the clerk’s office by the executor, as devised under the testator’s will, and further, that there was error in the ruling of the Court that words descriptive of the subject matter of the conveyance from Francis A. L. to the said Henry'C., of date December 9th, 1870, do not embrace any interest given him in the proceeds of the lots sold. The present appeal brings before us certain other antecedent deeds passing between the parties, and raises an inquiry as to the title of the said Francis A. L. to the fund to be derived from the sale, when made, and his right to dispose of it at the time when he executed the deed.
The descriptive words used in these deeds and in an instrument made on January 30th, 1871, in the form of a deed, but. without a seal to make it such in law, relating to the same subject, are essentially alike, sufficient, in our opinion, to embrace the pecuniary legacies to be raised by the sale of the lots.
The two deeds reciprocally passing between the said legatees bear the same date, April 14th, 1870, without evidence as to priority of execution, are upon the consideration of the natural love and affection borne by the respective donors *564towards Henrietta, wife of said Francis, and a small sum to give effect to the conveyance paid by the donees. The object of both deeds is to provide for the feme covert, and accordingly her husband conveys his interest under the will upon a trust declared to be for her use and benefit during life, with power in her to direct a change of investment when deemed proper. At the same time the said Henry C. conveys, for the like consideration of his natural love and affection for the said IPenrietta and her son, (his nephew), Henry Cassidey, his interest in the same property, designating it in similar terms, and omitting some of that mentioned in his brother’s deed, which, if not a repetition of that already mentioned, has no material bearing upon the present controversy.
To the description of the property in general terms as lots, found in both deeds, is subjoined in this the further words: “ being the property devised by James Cassidey, deceased, to Francis A. L. and Henry Cassidey in his will,” thus distinctly pointing to the lots as the source from which the legacies are to be drawn, and designating the interest intended to be transferred. The trusts declared are, that the said Francis A. L. shall permit the said Henry C. to possess and employ (enjoy clearly intended) during his life, and thereafter for the use and benefit of Henry, son of the trustee, and said Plenrietta, his wife.
Following these in time comes the deed of December 9th, 1870, upon which we have commented in the other appeal, which is in form an absolute sale and conveyance for the sum of six hundred dollars.
The last of the series is what is denominated an indenture, but which, for want of seals to the signatures, is not such, and in it the donor, for his natural love and affection for the wife of his brother, Francis A. L., and the small consideration coming from the latter, assumes to convey the *565property to said Fran oil A. L. upon like trusts as those declared in the last preceding deed.
We are now prepared to consider the defendant’s exceptions :
1. We sustain the first exception, that the money interest given in the will are not within the terms of the two first deeds, and for reasons not necessary to be repeated.
2. The exception is well taken to so much of the ruling as relates to the descriptive words found in the unsealed instrument. It is true, a pure gift can be made effectual, as against the donor, either by an actual or a symbolical delivery of the personal article given, and this was imposible, for the land had not been sold; or by a deed which operates proprio vigore, in law or equity, as the subject matter may admit. The present writing does not show a mere gratuity or indulged impulse of .benevolence, but contains in form a contract for money paid. As such a recital sufficiently shows a contract to pass the title to real estate under the Statute of Uses, no sufficient reason occurs to us why it may not be available.to carry into effect the intent of the parties to it. If it be a contract it passes not the fund as a legacy, but the right of the legatees to demand it when it comes into esse. Downey v. Smith, 2 Dev. Eq., 535; Ponton v. Griffin, 72 N. C., 362; Milhiser v. Erdman, at this term.
3. We are of opinion that the said Henry C. is not entitled to a personal property exemption. The referee finds that he has been absent from the State for seven or eight years, and is employed upon a steamboat plying on the waters of Florida, and that he expects in the future to return to Wilmington.
Our Constitution and statute .do not extend to such a case. The person must be a resident, actual and not constructive, to be entitled to the exemption. This is made clear by the section securing the homestead to insolvent debtors, when *566“owned and occupied by any resident of this State.” Const. Art. 10, sections 1 and 2.
The benevolent provision is for our own citizens — those who have a residence among us — and must be construed as not embracing cases of mere domicil, where the rights incident to domicil may be retained until a domicil is obtained elsewhere.
There is error in the rulings pointed out, which, as was said in the appeal, requires the judgment to be reversed and a new trial had. It is so ordered.