The parties are the devisees and legatees of Jesse Powell, deceased. Two of the defendants are also executors. The bill is filed to obtain a *Page 48 construction of the will; and the plaintiffs pray for an account and to have their shares allotted. Rosa Powell, one of the testator's children, died under age, and would not now be of age if living. There (51) were nine children, including Rosa. The widow, Mrs. Mildred Powell, is entitled to a child's share of the personalty. Two of the children are fully advanced; so that the partition will make eight shares, excluding the two children who have been advanced, and including Rosa.
The following is a copy of the will of Jesse Powell:
"I, Jesse Powell, of the county of Wake and State of North Carolina, do make and publish as my last will and testament as follows, viz.:
"1st. It is my will and desire that my executors, hereafter named, dispose of such of my property at public or private sale, real or personal, as they may think best for the interest of my estate, for the purpose of raising money sufficient to pay my debts.
"2d. I give unto my son John D. Powell two negro men, by name Alfred and Moses, valued at $800 each; a woman, by name Rachel, and her two children, by name Ellen and Sidney, valued at $1,200, and their increase from the time I put them in his possession, to him and his heirs forever. Also other property to the amount of $507. All of which will fully appear by reference to my guardian book. All of which said property hereby given has by him been received and in his possession.
"3. I give unto my daughter Rebecca A. Hilliard one negro man, by name Henry, valued at $800; one girl, by name Ellen, valued at $600; a woman, by name Cloe, and her three children, by name Lipsia, Ailsey, and Jane, valued at $1,459, and their increase from the time of their delivery to my said daughter Rebecca. Also other property to the amount of $255. All of which will fully appear by reference to my guardian book, which will show the amount. All of which said property hereby given has been put in her possession, I give to her, and her heirs forever.
"4th. After the payment of my debts as aforesaid, whatever of my estate may remain, either real or personal, except the property (52) already advanced to my son John and daughter Rebecca, I wish kept together and managed by my executors, as they may think best for the maintenance of my wife and unmarried children. I also wish my wife and children who are under age or unmarried should live together and be supported out of the property, and at the discretion of my executors, and my children to be educated out of the proceeds of the estate in hand, with an education at least equal to those that I have already educated, without an extra charge.
"5th. My wish is, when one of my children marries or arrives to lawful age, that my personal estate be divided into one share more than *Page 49 there are children, who have not received their portion of my estate, by five discreet persons to be appointed for that purpose by the county court, any three of which to act the same as if all five were present; and my wife to take her first choice of lots and then one share to be divided out and given to him or her for whom divided; the remainder to be kept together until another arrives at age or marries, and the same proceedings to be had in every case, as they respectively arrive at age or marry. I further wish my wife to have her share out of my estate at any time she may see proper to desire it.
"6th. In case my wife should think proper to marry, I desire that she be allowed one-third of my real estate, if not previously sold by my executors, during her life, and the balance of my estate of every description (the land excepted) then on hand to be divided between her and all of my children who have not been provided for. Also after her marriage, for my children to remain with her, and their respective portions of my estate also, or otherwise to be removed into the hands of a guardian, as my executors may see proper and most advisable for the interest of my children.
"7th. At the death of my wife, should any land remain unsold, I desire that my executors should expose it at public sale, giving one or two years credit, with interest from the date of sale, and the (53) proceeds arising therefrom to be equally divided between all my children, or their lawful representatives. Also, every species of property, except the negroes, which may remain belonging to my estate, not before disposed of, I desire to be sold, and an equal division of the proceeds thereof to be equally made between all of my children aforesaid, or their lawful representatives.
"8th. Now, I wish this my last will to be understood that on a final division of my estate of every denomination whatever, my children be made equal heirs, share and share alike; and as John and Rebecca have had about $60 each advanced to them, that is not before mentioned in this will, I wish each of my younger children to have $60 allowed to them extra, in the price of a horse, valued to them as in money; and if I should advance any of my children any property or money after the date of this will, I shall charge it to them in my guardian book, which I wish them to be charged with on a settlement of my estate.
"9th. I nominate and appoint my wife, Mildred A. T. Powell, executrix, and my son John D. Powell, and my friend John Ligon, executors to this my last will and testament, revoking all former wills by me made.
"In witness whereof, I the said Jesse Powell, have hereunto set my hand and seal, this 12 February, 1842. All corrections made before assigned." *Page 50
The executors have sold the land and applied the proceeds of the sale to the payment of the debts. The fund on hand consists mostly of negroes. The executor John D. Powell alleges in his answer that the debts are not yet all paid, and remain a charge upon the estate. Mrs. Powell, who is also an executrix, alleges that she is in advance out of her own funds for the maintenance and education of the younger (54) children, after applying the profits of the unsold part of the estate to those purposes, with the exception of a large amount received for the hire of negroes, which has been applied to pay the debts of the testator.
The negroes have been divided, by an order of the court below, into eight shares, and such of the children as are married or of age have had their shares allotted. The shares of the widow and the children who are unmarried and under age remain in common. No exceptions are filed to the report of the commissioners who made the division. We think it clear that the will makes the land a primary fund for the payment of debts, at the discretion of the executors, which has been properly exercised by selling the land to save the negroes. The price of the land became personalty as soon as it was sold, and being a primary fund for the payment of debts, it follows, of course, that the personal estate is not liable to make good to the real estate the amount that has been so applied, and if any part of the price of the land is undisposed of, that is now a part of the personal estate. This is the principal question.
We think the shares of Rosa ought to remain with the common fund until such time as she would, if living, have arrived at full age, when it may be called for by her personal representative and held subject to the rights of her distributees.
The fund in the hands of the executors is liable for the unsatisfied debts of the testator, and is also liable to reimburse Mrs. Mildred Powell for the amount she is in advance for the maintenance and education of the younger children, over and above the profits received by her (55) and applied to that purpose, to the extent, if necessary, of the negro hire which has been applied to the payment of debts; for the negro hire formed a part of the profits applicable to the purposes of maintenance and education, and its application to the payment of debts increases the fund now on hand.
The report of the commissioners will be confirmed, and a decree for *Page 51 the plaintiffs to receive the shares allotted to them, subject to contribution for the liabilities above stated. The costs will be paid out of the fund in the hands of the executors.
PER CURIAM. Decree accordingly.
Cited: Conly v. Kincaid, 60 N.C. 595.