Smith v. Barham

• Decision Date: 31 December 1833
• Court: North Carolina Supreme Court
• Parties: JOHN SMITH ET AL. v. WILLIAM BARHAM ET AL.

17 N.C. 420

JOHN SMITH ET AL.

v.WILLIAM BARHAM ET AL.

SUPREME COURT OF NORTH CAROLINA

DECEMBER TERM, 1833

1. A residue which is given for life, with a remainder over, must be sold by the executor, and the interest paid to the legatee for life, and the principal to him in remainder, because this is the only mode of giving both sets of legatees the enjoyment of those chattels which are perishable.

2. Slaves are, in this State, no exception to this rule, because they are not consumed in the use, and their natural decay is supplied by their issue, which goes to those in remainder.

3. Between the heir and the executor the growing crop goes to the latter; but between the executor and the devisee the rule is different.

4. A legatee for life is bound to keep down the interest of a debt charged upon his legacy, and he may be compelled to contribute to its payment. But he is not bound to surrender the whole profits for the purpose of extinguishing it.

5. The legatee for life of a specific chattel has a right to the possession of it, and the assent of the executor to his legacy vests the title of him in remainder.

6. When a specific chattel which is consumed in the use is given for life, what interest vests in the remainderman, quere.

THE plaintiffs were some of the legatees in remainder of the residue bequeathed in the will of John Barham, deceased, and filed their bill against the executors, and the other residuary legatees, for an account and satisfaction. By an original and amended bill it was charged that the testators died in September, 1825, and directed his debts to be paid out of such parts of his estate as he did not specifically dispose of thereby, and "the residue, with all the lands he should die possessed of, he lent to his wife, Mary, during her 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 amongst his children and grandchildren, in seven equal parts, of whom the plaintiffs were some and the defendants the others. The defendants Nicholas and William were appointed the executors, and proved the will. The bills then further charged that the testator had about twenty slaves, which formed part of the residue, and also a large crop growing and provisions on hand, a valuable stock of horses and cattle, and hogs, farming utensils, and household furniture, all of which except the slaves, it was the duty of the executors to have sold to raise a fund to pay the debts; but that instead of doing so, they either sold or suffered to be sold under an execution several of the slaves, one of which, Dave, the defendant William purchased, and left the other articles of inferior value, and most of them perishable in their nature, in the possession of the widow, who hasconsumed them or they have been otherwise converted by her or by the executors. The bill also charged that the defendant William hired out some of the slaves or made profit otherwise from them during the life of the widow, which should have been applied in discharge of the debts, instead of suffering any of the negroes to be sold for that purpose, and, therefore, that he ought to account for the value of the slaves sold, for the hire received by him, and also deliver up Dave as a part of the residue. The bills also charged that the defendant John Barham owed the testator a large debt, which the executor failed to collect, although William purchased from John his share of the negroes, and the other residue, and paid him for them with profits of the estate then in his hands, and that the executors were chargeable with that debt.

The defendant Nicholas answered and admitted that he proved the will, but stated that he resided in Virginia and had never intermeddled with the estate or received any part of it.

The answer of the defendant William admitted the will as stated, and insisted that for the purpose of raising a fund to pay the debts, a discretion is given to the executors to sell any parts of the effects composing the residue, and do justice to all the parties. That accordingly he sold nearly all the stock, farming utensils, furniture and provisions, except only such things as were indispensably necessary for the support of the widow (a very aged woman and mother of these parties), and that a sufficiency for that purpose, including the grain crop growing at the testator's death, was left unsold, and that he did not sell the crop of cotton of that year. That the widow died in September, 1830, and that thereupon the negroes remaining unsold were divided among the remaindermen, and the plaintiffs received their shares, and that this defendant then sold all the other articles which had been left unconsumed by the widow, and applied the proceeds to the discharge of a balance of the testator's debts then unpaid. He admitted that some of the negroes were sold under execution, and averred that it was unavoidable, as suits were pending against the testator, and he was unable to raise cash todischarge the judgments; and that he purchased Dave, at a full price, and borrowed the money to pay for him, but he submitted to have the purchase declared void, at the election of the plaintiffs. He further admitted that he hired out some of the negroes, but said the widow was entitled to the hire, and that he was ready to account with her representative. With respect to the debt of John Barham, the answer stated that the defendant found among the papers of the testator some evidences that he had paid money for his son John, several years before his death, and that he, the defendant, being unable to get any information upon the subject, or whether his testator had been satisfied, sued out attachments against John (who resided out of the State) and

levied them on a slave, Abel, specifically bequeathed by the testator to him, and also on his share of the residue upon which judgments were had, and a sale made, and that he, the defendant William, became the purchaser. That one reason for attaching this interest was that other creditors of John would have done so, and if the debt to the testator was really due, as it appeared to be, it would then be lost; that he made the purchase for the benefit of the estate, and was willing that it should be so considered, if it was to stand at all, or to take it himself, as the plaintiffs might elect. But that he has recently discovered that the debts were probably not due, and that the whole proceeding was founded in a mistake, upon the apprehension of which, at the time of the purchase, it was understood that if it should so turn out, the purchase should enure to the benefit of his absent brother, John; that John has since declared that nothing was due, claimed the property, and instituted proceedings to reverse the judgments, and that the persons interested in the estate, except one of the plaintiffs, Smith, had agreed to surrender the claim. He submitted to hold this part of the estate for the benefit of either of the parties in whom the right might be deemed to be.

The answer of John Barham set forth the particulars of that part of the case relative to the claim against him more at large, and alleged that he did not owe his father anything, and that the proceedings were irregular and null, and claimed his share of the property. He alsoclaimed that all the hire and profits of the negroes and other property which had accrued during the life of the mother, and also the proceeds of the crop growing at the testator's death, belonged to the tenant for life, and was to be accounted for by the defendant William to her representative.

A reference was made to the master, and he reported against the executors a balance of $1,154.29, exclusive of interest. To produce this result the master charged the defendants with the hire of certain of the slaves during the life of the widow, and also with the sales of the cotton and corn crops growing at the death of the testator, and further with the value of the hogs, sheep and wheat, and one cask of brandy, not sold, but consumed by the widow. The master made no report upon the subject of John Barham's debt, and his claim to the property sold for it, and gave as a reason that there were proceedings at law between him and the executors to vacate the judgments and to ascertain the debt, if any. The master also charged the defendant William with the price of Dave, as upon a sale to him.

To the report both parties excepted, but the exceptions of the defendant raised the only questions of importance.

RUFFIN, C. J., after stating the pleadings and report as above: The crops growing on the land at the time of the testator's death go to the executor as against the heir; but as between the executor and the devisee, the latter is entitled to them. The devisee takes the land by the intention of the testator, with everything on it, for as the devise carries the land against the heir, so it does the crop against the executor. The rule is so strong that if the devise be for life with remainder over, andthe first taker die before severance of the crop growing at the death of the testator, it goes over with the land to the remainderman, in preference to the personal representative of the first taker.

Here the testator died early in September, 1825. He then left in the granary a...