The following is a copy of those parts of the will which are considered important:
"I, William Henderson, etc., being possessed of a considerable property, both real and personal, and desirous of directing a disposal of the same after my death, do the 9th day of January, 1818, make and publish this my last will:
"That is to say, the tract of land that I now live on, lying on the Catawba River, containing 300 acres, and also fisheries, it is my last will and pleasure that my executors, hereafter to be named, do, within six months after my decease, cause the aforesaid tract of land to be publicly sold to the highest bidder, after giving three months public notice, terms of sale to be one-third yearly until the amount is paid, the purchaser to give good and sufficient security, with mortgage on the premises. And my will is that the money arising from said sale shall be disposed of as follows, that is to say, the money arising from the sale of said land shall be laid out in purchasing shares in the State Bank of North Carolina, or in purchasing shares of the United States Bank, and the profits arising to go towards paying a minister of the Gospel, who shall preach at the Seceding Meeting-house called Gilead, in said county, being on the great road leading from Charlotte to Beattie's Ford (the party called the Associate Seceding party).
(310) [Here follow several legacies.]
"The rest of my negroes, viz., Betty, Jerry, Frank, Jim, Alek, five in number, with all the horses, cattle, hogs, sheep, farming utensils, household furniture, and any other thing not mentioned in this my last will, I direct my executors to sell at public sale, and the moneys arising to be laid out in the manner following: First, all my just debts to be paid, and funeral expenses to be paid. I give and bequeath Hugh Lucas *Page 169 one dollar. Also give and bequeath to John Henderson one dollar (son of William). I also give and bequeath to William H. Lucas forty dollars. Then the remainder or balance to be divided equally among the following persons: I give and bequeath to my sister Jane and family, I give and bequeath to my brother Archy's son, James Henderson, I give and bequeath to my brother James and family, each one to share and share alike." The Court took time to advise, and at this term their judgment was pronounced by The question to be decided is, Who is entitled to the proceeds of the sale of the land devised to be sold by John Henderson's will, as the object for which the testator directed the sale cannot be accomplished?
Cox in a note to Cruse v. Barley, 3 P. Wms., 22; Bridgman, in his index. (Devise, 3 pl. 151) and Thomas (in a note to his edition of 2 Co. Litt., 702), unite in saying that when real estate is devised to be sold, it is important to consider whether the testator meant to give the produce of such estate the quality of personalty to all intents, or only so far as respected the particular purposes of the will. For unless the testator has sufficiently declared his intention, not only that the realty should be converted into personalty, but further, that the produce of the real estate shall be taken as personalty, whether such purpose take effect or not, so much of the real estate or the produce thereof as is not effectually disposed of by the will at the testator's death, whether from the silence or inefficacy of the will itself, or from subsequent lapse, will result to the heir. The rule as thus laid down seems to be supported by (311) the following authorities, which are referred to for that purpose:Randal v. Bookey, 2 Vern., 425; Stonehouse v. Evelyn, 3 P. Wms., 253;Fletcher v. Ashburner, 1 Brown, ch. 502; Robinson v. Taylor, 2 Do., 589;Stansfield v. Habergham, 10 Ves., 279; Williams v. Coade, 10 Ves., 500;Gibbs v. Ougier, 12 Ves., 415; Hooper v. Goodwin, 18 Ves., 156; Chambers v.Brailsford, 18 Ves., 368; Gibbs v. Rumsey, 2 Ves., and Bea., 294; Chitty v.Parker, 2 Ves., Jr., 271.
It may therefore be taken for granted that as the devise of the lands cannot take effect under the first clause in the will, the heirs at law are entitled to the proceeds of the sale of such lands, unless some other clause in the will gives it another direction. Viewing the question under the first clause of the will, it is the common case of a disposition by will of *Page 170 money to be raised from the sale of land; which money has been raised, but the devise cannot be carried into effect, and the money remains not further disposed of, and no doubt can exist that a trust results to the heir at law. It can make no difference that the land has been sold, and that money, the proceeds of the sale, is the subject of dispute. Hill v.Cock, 1 Ves. and Beam., 174. It is, however, contended that the testator has made a disposition of it in other parts of the will, which it is next proper to examine. The only part of the will which it can be supposed has that effect is where he directs his five negroes, with all his horses, cattle, sheep, hogs, farming utensils, household furniture, and any other thing not mentioned in this my last will, to be sold at public sale, and the money arising therefrom to be applied to the payment of debts, funeral expenses, and after giving some legacies, he directs the remainder or balance to be divided as follows: "I give and bequeath to my sister Jane and family, I give and bequeath to my brother Archy's son, James Henderson, I give and bequeath to my brother James and family, each one to share and share alike."
(312) From this disposition it does not appear that the testator intended to give to the produce of the land the quality of personalty to all intents, or to convert it out and out (for in that particular he is altogether silent), but only intends to convert it so far as was necessary to answer the express purpose for which a sale was directed. I say on that subject he is silent, because it does not appear to me that the land or money in dispute is included, or was intended to be included, in the residuary clause in the will last mentioned. The words (as far as concerns this question) are, "and any other thing not mentioned in this my last will." He had directed his negroes, horses, furniture, etc., to be sold, and used these words to embrace any other articles of a like kind that he might have omitted to mention. The residuum thus created is a special residuum of the personal estate. Of course, the land or money in dispute is not included, not having been converted out and out, and therefore results to the heirs at law, as personal estate similarly situated would result to the next of kin. 10 Ves., 500; 15 Ves., 416. If it has not been converted into personalty, it would not pass in a residuary clause, intended to include a residuum of personal estate. 11 Ves., 90; see, also, Gibbs v. Rumsey, 2 Ves. and Bea., 296; 1 Ves. and Bea., 416. And it seems to be the opinion of the Master of the Rolls in Dawson v. Clark, 15 Ves., 414, that a lapsed devise would not go to a residuary devisee, although a lapsed legacy would go to a residuary legatee; nor would it, without the aid of our acts of Assembly, be subjected to simple contract debts. Gibbs v. Ougier. In Collins v. Wakeman, 2 Ves., Jr., 683, money raised from the sale of real estate was expressly declared to be personal property. Yet as it was eventually undisposed of, it was held *Page 171 to result to the heir at law. Hooper v. Goodwin. So in Sheddon v. Goorich, 8 Ves., 481, it was held that money raised from the sale of real estate, not converted out and out into personalty, will not pass by a codicil not attested so as to pass real estate.
There are cases, however, where residuary legatees have (313) prevailed against heirs at law, as in Mallabar v. Mallabar, Ca. Temp. Talbot, 79, and Duroux v. Matteux, 1 Ves., 320, and in those cases the Court was of opinion that the real estate was converted into personalty for all the purposes of the will, so as to be included in the residuary clause. So in Kennell v. Abbot, 4 Ves., 802, part of the money arising from the sale of copyhold estate was disposed of in legacies, the residue was expressly given in a general residuary clause; it was held that a void legacy, to be paid out of the same fund, passed by the residuary clause, that it was turned into personalty, and converted out and out.
Also, in Brown v. Bigg, 7 Ves., 280, where money arising from the sale of lands was directed to be laid out on security, and in a residuary clause the testator gave, after the death of his wife, the whole of his personal estate of every kind, both on public and private security, not disposed of in legacies, it was held to pass under such residuary clause.
But Bridgman (Devise Pl., 151) says that these cases do not decide the question which would have arisen if there had been no residuary disposition, or if such residuary disposition had been confined to what was personalty at the testator's death. According to that distinction, I think the heirs at law entitled in this case, for the residuary bequest was certainly confined to what was personalty at the testator's death. The land was to be sold after giving three months notice, and the proceeds of the sale to be paid in three annual installments. The other property he directs to be sold at no particular time, or upon no particular credit, and it is the unappropriated part of the proceeds of that sale which in this case constitutes the residuum. "The remainder or balance to be divided amongst the following persons" — the remainder or balance of what? The personal property before directed to be (314) sold. He certainly never contemplated selling the money arising from the sale of the land. That money constitutes no part of the residuum. That was made up of the negroes and other property directed to be sold.
The heirs at law are therefore entitled to the money for which the land was sold, as the appropriation made of it by the testator cannot take effect.
PER CURIAM. Decree accordingly.
Cited: Holton v. Jones, 133 N.C. 404. *Page 172