The facts were, that the intestate of the plaintiff intermarried with one James Cherry, who died leaving a last will and testament, which was duly admitted to probate, in which occurs the following clause: "I give to my wife Elizabeth seven negroes, (naming them) all my stock of horses except one, all my stock of cattle, hogs, all my farming tools, household and kitchen furniture, all my grain on hand for the support of the family, and should my wife wish to sell or dispose of any of the above property she can do so with the advice and consent of my executor, I also give to my wife one half of my land including the mansion house."
In another clause of the will, the testator bequeathed to his daughter Cynthia Ann, who afterwards intermarried with the defendant, J. A. W. Keeter, certain personalty, and directs his executor to sell any of said property for her support and education or put the money arising from said sale, at interest, as he deems best. In the event of the death of his daughter, the testator directed that the estate bequeathed (476) to his daughter should be given to certain other persons.
The defendant Cynthia Ann was the only child and heir at law of the testator James Cherry as well as of the plaintiff's intestate.
The plaintiff's intestate after the death of her husband, James Cherry, intermarried with one Terrell Hawkins; at the time of said marriage his wife had in her possession the slaves bequeathed to her by her former husband. Terrell Hawkins died thereafter intestate. His administrator took into his possession and sold as a part of the estate of his intestate the aforesaid slaves, when his widow became the purchaser of some of them. Thereafter she died intestate, and the plaintiff was duly appointed her administrator. The note given for said slaves has not yet been paid, and the estate of intestate is insufficient to pay off and discharge said note, without a sale of the real estate of his intestate.
The defendants in their answer insisted that the plaintiff's intestate, Elizabeth, took the personal property under the will of her former husband, Cherry, as trustee, for the use and benefit of herself and family: and that she only acquired a life estate in and to the real estate devised to her.
The questions of law arising under the pleadings were referred by the Clerk of the Superior Court to his Honor Judge Logan, who being of the opinion that plaintiff's intestate did not acquire such an estate in the personalty bequeathed to her by her former husband, Cherry, as would enable her to convey or dispose of the same, except with the advice, and consent of the executor of the testator, Cherry, and that an absolute property in said slaves did not pass to her second husband, *Page 369 Hawkins, and therefore she was not legally bound to pay to the administrator of the said Hawkins, the purchase money for said slaves, refused to grant the order prayed, and dismissed the petition, from which plaintiff appealed. The intestate of the petitioner was the widow of James Cherry and was entitled to certain slaves and land under the will of her husband. The petitioner ask for a construction of said will in order that he may know how to administer properly the estate of his intestate.
The testator in his will made an equal division of his land and slaves, between his widow and only child, one of the defendants. As the widow was to have the principal care and support of the family, the testator bequeathed to her the household furniture, stock, farming tools, grain and other property generally used for such purposes. This care and support of the family was to be exercised, and the property intended for this purpose was to be managed under the advice and supervision of the executor. The land and slaves given to the widow were not fettered by any trust in the executor and were not limited over upon any subsequent contingency. In the case of the child the disposition was different. Here there was an express trust for certain purposes, and the estate was limited over to third persons, if the child died before arriving at the age of twenty one years. It was necessary for the executor to have control of this estate to effectuate the trusts and limitations expressly declared in the will.
As the widow took an absolute estate in the slaves, upon her subsequent marriage, they passed by operation of law to her second husband, Hawkins. When she purchased one of these slaves from the administrator of second husband, she created a debt for which she was personally liable, and upon her death it was a debt against her estate. As her administrator has not sufficient personal assets to discharge this debt, he is entitled to an order for the sale of the lands of his intestate for this purpose. There was error in the ruling of his Honor, and this will be certified that the proper orders may be made in the premises. (478)
Per curiam.
Judgment reversed. *Page 370