Ritch v. Morris

• Decision Date: 31 January 1878
• Citation: 78 N.C. 377
• Court: North Carolina Supreme Court
• Parties: JAMES T, RITCH and wife and others v. J. R. MORRIS and J. N. D. WILSON, Executors.

78 N.C. 377

JAMES T, RITCH and wife and others

v.J. R. MORRIS and J. N. D. WILSON, Executors.

Supreme Court of North Carolina.

January Term, 1878.

CONSTRUCTION of a Will, heard at Spring Term, 1875, of CABARRUS Superior Court, before Schenck, J.

Ezekiel Johnston, late of Cabarrus County, died in the month of July, 1874, leaving a last will and testament which was duly admitted to probate. The defendants were appointed executors, and after qualifying as such, they assumed the execution of the trust reposed by the will, the two items of which bearing upon the question decided by this Court, are embodied in the opinion delivered by Mr. Justice BYNUM. The plaintiffs contended that they were entitled to an account to ascertain the principal of the sum alleged to be due them, out of that portion of the testator's estate to which they were entitled as legatees for life, and to have the same paid over to them with the accrued interest; but the defendants insisted that they were not entitled to the principal of the legacies, but only to the interest and profits arising therefrom, and that the language of the will by a proper construction applied to the personal and real estate alike,--it being the intention of the testator that the plaintiffs should only have the use of the realty for life; and that only the interest accruing from the legacies should be paid to them during their lives.

His Honor held that it was the duty of the executors to sell the personal property and pay over the interest on the fund so acquired (after paying debts) to the legatees for life, annually, and the principal to the children at the death of said legatees; and as to the land devised, the Court held that Mary Howie (now Ritch) and Martha Fuqua were entitled to a life estate, and to the possession and use thereof during their lives. From which ruling the plaintiffs appealed.

Messrs. Wilson & Son, C. Dowd and P. B. Means, for plaintiffs .

Mr. W. J. Montgomery, for defendants .

BYNUM, J.

After a bequest of five hundred dollars to a grandson, to be paid out of his personal estate, the testator proceeds thus: “Item 9. I give and bequeath and direct to be divided as follows, (subject to the payment of debts and incidental expenses of administration) to wit, to my grand daughter William Eliza Johnston, one half of the undivided fourth part, and the residue I direct to be divided into three equal parts, one of which I bequeath to my daughter, Mary Howie, one to my daughter, Martha Fuqua, and the remaining third to the children of my deceased son, Zebulon Johnston.

Item 10. The estate I have herein devised and bequeathed to my daughters, Mary Howie and Martha Fuqua, I give to them and each of them, during the term of their natural life and at the death of each, to descend to the children of each, share and share alike,--my said daughters during life to use the profits arising or accruing from their estate respectively and to enure to their sole and separate and exclusive use and benefit, and at the death of each to descend as aforesaid.”

The estate disposed of by the 9th item of the will consisted of horses, mules, cattle, farming tools, crops on hand and household furniture, of the value of three thousand dollars; and of cash on hand, notes and bonds of the value of fifteen thousand dollars.

The question presented is whether Mary Howie (now Ritch) and Martha Fuqua, the legatees for life, are entitled to the possession of the personal estate so limited to them for life and then to their children. As no appeal was taken from the decision of the Court below in regard to the real estate, that part of the case is out of the way.

We think Smith v. Barham, 2 Dev. Eq. 420, is decisive of the question made here. There, the testator by his will directed his debts to be paid, and the residue with all the lands he should die possessed of, he “lent to his wife, Mary, during life,” repeating that by the term “residue,” he meant that whatever should remain after the payment of debts, should go to the wife for life, and that after her death, the residue therein lent to his wife, the land excepted, should be divided among his children and grand children. The testator had twenty slaves which formed part of the residue, and also a large growing crop, provisions on hand, a valuable stock of horses and cattle, hogs, farming utensils and household furniture. It was held that the residue given for life with remainder over, must be sold by the executor, and the interest paid to the legatee for life, and the principal to those in remainder, as this was the only mode of giving both sets of legatees, the life tenants and the remaindermen, the enjoyment of their chattels which are perishable.

Smith v. Barham, is approved in the subsequent case of Jones v. Simmons, 7 Ire. Eq. 178. There, Martha Corlew by will gave to the defendant's testatrix, subject to the payment of debts, an estate for life in land, and “all her other property, be it of what kind or nature soever, not hereinafter 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 tools, stock, &c., to the life tenant, by whom it was consumed, worn out or destroyed. It was held that the remaindermen had a clear equity against the executor for compensation on account of this breach of trust, in not selling and paying over the interest to the tenant and holding the principal for the ulterior legatees.

This case was followed by Tayloe v. Bond, Busb. Eq. 5. There, the testator, Bond, gave to his sister, Mary Ashburn, an estate for life, in the land upon which he lived, with “the use for her natural life, of a sufficiency of household and kitchen furniture, of my stock of hogs, cattle, sheep and horses, and my negroes to support her. These articles are to be for her life only.” The executors delivered the property to the life tenant, and the question was made, whether by a proper construction of the will, they could do so. It was held that they could, and that after the allotment and delivery, they had nothing more to do with it, but that the remaindermen, if it should thereafter become necessary, might take measures to prevent the removal or destruction of such of it, as was not of a nature to be consumed by the use. But this decision was put expressly upon the distinction between this case and Smith v. Barham and Jones v. Simmons, supra. “In these last cases,” say the Court, “a mixed and indiscriminate fund is given as a residue to one for life with a limitation over; and it is settled to be the duty of the executors in such cases, to sell the property and pay the interest to the first taker during life, keeping the principal for him to whom it is limited over, on the ground that this is the only mode...