Jones v. Simmons

• Decision Date: 30 June 1851
• Citation: 7 Ired.Eq. 178,42 N.C. 178
• Parties: JAMES JONES AND OTHERS v. ALFRED W. SIMMONS, EX'OR.
• Court: North Carolina Supreme Court

7 Ired.Eq. 178

42 N.C. 178

JAMES JONES AND OTHERS

v.ALFRED W. SIMMONS, EX'OR.

Supreme Court of North Carolina.

June Term, 1851.

A residue of goods, which are given for life, with a remainder over, ought to be sold by the executor, and the interest on the amount of sales should be paid to the legatee for life, the principal being kept by the executor for the remainder men.

When the property is delivered over to the tenant for life and by him wasted or consumed, the remainder men are entitled in Equity to recover its value either from the executor of the original testator or from the executor of the tenant for life.

The case of Smitk v. Barham, 2 Dev. Eq. 420, eited and approved.

Cause transmitted to the Supreme Court from the Court of Equity of Halifax County, by consent, at the Fall Term 1850.

B. F. Moore, for the plaintiff .

Bragg and Simmons, for the defendant .

PEARSON, J.

Martha Corlew, by her will, gave to the defendant's testatrix, subject to the payment of “debts, an estate for life in a tract of land,” and “all her other property, be it of what kind or nature soever, not herein after disposed of, and at her death to be equally divided” between the children of Celia Jones.

The executor delivered the property, consisting of furniture, farming utensils, stock, &c., to the defendant's testatrix, by whom it was consumed, disposed of, or worn out.

The plaintiffs are the children of Celia Jones, and insist, that they are entitled to recover the value of the property at the time of its delivery to the defendant's testatrix, with interest from her death.

The defendants insist, that they are only entitled to such articles as remained on hand at the death of his testatrix.

A residue, which is given for life, with a remainder over, ought to be sold by the executor, and the interest on the amount of sales should be paid to the legatee for life, the principal being kept by the executor for the remainder men. This is settled; Smith v Barham, 2 Dev. Eq. 420. The subject is there fully discussed, and it is not necessary to elaborate it again.

In this case, the executor, instead of converting the property into money, and holding the principal for the plaintiffs, delivered the property to the first taker, by whom it was consumed. The plaintiffs have a clear equity against the executor for compensation on account of this breach of his duty; and he is entitled, in a settlement with the representative of the first taker, to be credited with the...