The cause was set for hearing on bill and answer, and transferred to this Court; and upon the pleadings the case is this. Neil McLeran, the elder, by his will gave his whole estate to his wife, Christian, during her life. He adds: "After her decease I wish the same disposed of as follows." Then, after several particulars devises and bequests to some others of his children, comes this clause: "I give and bequeath to my sons, Nevin, John, Neil and David, and their heirs, 440 acres of land on Buck Creek, my stock of all kinds, except such as is herein otherwise disposed of, my plantation utensils and kitchen furniture, also my two negroes, Stephen and Jim, and my blacksmithing tools and wagon: all of which I wish sold and the proceeds to be equally divided amongst my said four sons, Nevin, John, Neil, and David, after my funeral expenses and debts are paid out of the same. And further (71) I bequeath to my four sons, Nevin, John, Neil and David, $500 in money, which I now have at interest, if necessity do not compel me or my wife to dispose of said money or part thereof before our decease." The defendant is the executor, and, upon the death of the testator in 1842, he proved the will and assented to the legacies to the widow, who took the slaves and other chattels into her possession. The testator lived six years after the making of this will and called in and spent two hundred dollars of the money he had at interest; and the widow, who died in 1847, called in the residue and used it in her necessary support. The plaintiff is the testator's son John, mentioned in the will, and resided out of this State; and, during the life of his mother, one of his creditors here sued out an original attachment against him and served it on his interest in the land and two negroes, and, after judgment, had the same sold under execution thereon. One Colvin purchased the land for $70, and afterwards sold it to the defendant and he took the sheriff's deed therefor. The negroes were purchased by the defendant, but they were not present at the sale, and were, at the time, in possession of Mrs. McLeran at her residence; and afterwards one of them died in her lifetime. In 1848 the defendant sold the surviving slave for $649, the other chattels, which the widow had not consumed, for $36, and the land on Buck Creek for $1,408, on a credit of six months. The bill is brought for the plaintiff's share of one-fourth part of the proceeds of the land and other property, insisting that his interest therein was not subject to attachment and execution, and also for a share of the money at interest — submitting, however, to allow thereout the sum paid by the defendant on the executions against the plaintiff and interest thereon. There was an ademption of $200 of the money legacy by the collection and expenditure of that sum by the testator. There is an implied gift of the residue of the money to the testator's wife, if she should need it; and, as the cause is heard on the bill and answer, and the defendant states expressly that it was applied to her necessary support, the whole of that fund is exhausted, and the plaintiff can have no relief in respect thereof. But as to the residue of his demand, the Court holds, that he is entitled. Even if the negro had been liable to the execution, the sale of him was void, as he was not present. Blantonv. Morson, ante, 47. But in truth the plaintiff had in neither the negro nor the land such an estate, as could be taken on attachment or execution. For, although the language in the first part of the clause imports a gift of the land, negroes, and other property to the four sons in remainder, yet the latter part clearly shows that the things themselves are not given to them, but only the proceeds of them in money after a sale by the executor. For a sale of all is expressly directed, and, as no one else is appointed to make it, the duty devolves necessarily upon the executor — the more especially as the funeral expenses and debts are charged upon the fund arising from the sale. The assent of the executor to the life estate can have no effect even upon the slave, since the executor had a trust to perform in respect of him after the death of the tenant for life, and therefore the property remained in the executor and was not subject to attachment against the cestui que trust. Dunwooddiev. Carrington, 4 N.C. 355; Elliott v. Newby, 9 N.C. 21. So, in respect of the land, if it be admitted that the legal estate descended, or passed to the four sons as devisees, yet it was vested in the heirs (73) or the devisees, subject to the power of the executor to sell, and it was divested by the exercise of the power of the executor in making the sale; which he was not only at liberty, but obliged, to do, in execution of the trust in favor of the testator's creditors and the other sons. It results that the right of the plaintiff to a share of the proceeds of the sale made by the executor continues unimpaired, and that the defendant is bound to account and pay him what may be found due, subject to the deduction the plaintiff submits to allow. There must be the usual enquiry, and the defendant must pay the costs up to the hearing.
PER CURIAM. Decree accordingly.
Cited: Munds v. Cassidey, 98 N.C. 562; Perkins v. Presnell, 100 N.C. 224;Orrender v. Call, 101 N.C. 403. *Page 61