William D. Davenport was shot and killed by two of his slaves, Ganza and Aaron, in the month of February, 1858. The two slaves aforesaid *Page 20 were tried and convicted of the offense and afterwards executed. Another slave, George, was also put upon his trial for the same offense, but was acquitted. In the will of the said William D. Davenport, George (5) is given to the children of William H. Davenport, Ganza to Henry Harrell, who is the executor and plaintiff in this suit, and to his wife Catharine, and Aaron to the children of Samuel W. Davenport. On the arraignment of these slaves, the family of the testator and the public were greatly incensed against them, and no counsel having been secured for them, his Honor who tried the case ordered the plaintiff Harrell to have them defended in the best manner, and to pay the amount necessary to that end out of the estate of the testator, in consequence of which considerable sums were paid out by the executor in counsel fees and other expenses. After the acquittal of George, he was delivered by the executor to the children of W. H. Davenport, and sold by them, and the money divided among them.
The widow of the said W. D. Davenport dissented from his will and claimed her dower and distributive share.
This bill is filed by Harrell as executor, praying the advice of this Court on several questions growing out of the will of the said Davenport and the circumstances subsequently occurring. He states, among other difficulties presenting themselves:
1. That Polly Davenport, the widow, insists that in having her share assigned, she is entitled to have the value of Ganza and Aaron brought in as if they had not been convicted and hung. It is agreed that the apparent value of each of these slaves was $1,200 at the testator's death. She also insists that she is to have her share from the estate without any diminution for the expenses. These demands are opposed by the other legatees.
2. The legatees to whom Ganza and Aaron were bequeathed insist that their value shall be made good to them out of the estate.
3. The legatees of the slaves George, Ganza, and Aaron insist that the expenses of defending them shall be paid out of the estate, while it is insisted on the other side that each of the persons to whom these slaves were bequeathed shall bear the burdens incident to their protection.
4. By clause 13 of his will, the testator gives the residue of his (6) estate, after many legacies, as follows: "My wife, Polly Davenport, and my children, Chloe Davenport, Catharine Harrell, and Alfred Davenport, each to take one share; to the children of Samuel W. Davenport, one share between them; to Mary Amanda Spruill and Mary Ann Ward, to share equally with each of the children of W. H. Davenport." It was insisted by the first named of these legatees, Mary Amanda Spruill and Mary Ann Ward, that by the words and meaning of this bequest they are to take a third each of the share herein given, *Page 21 and that the children of W. H. Davenport, of whom there are five, take a third among them.
5. The fifth inquiry is stated in the preceding.
6. By the said will, the sum of $800 is given to Mary Ann Ward when she arrives at the age of 21. She is now about 16 years old, and contends for interest on the sum bequeathed from the testator's death, which claim is resisted by the others.
7. As soon as the said Harrell qualified as executor he hired out for the remainder of the year all the negroes of the estate except the three in jail, and at the end of the year he delivered them to the legatees to whom they were specifically bequeathed. The executor inquires how, in arriving at the amount of the distributive share of the widow, these slaves are to be valued, and as of what time?
8. The owners of the last mentioned slaves claim their accruing hires as incident to the property itself, which is resisted by the claimants of the residue.
On the foregoing points, the executor says that he is threatened with litigation, and calls upon the several parties to litigate these matters in the court of equity, and he prays that he may be protected from these adversary claimants by a decree. He submits to all proper accounts, etc.
The legatees who are brought in as defendants by this bill answer and insist upon the several views attributed to them in the plaintiff's bill.
The cause was set for hearing upon the bill, answers, and exhibits, and transmitted to this Court. (7) The executors of William D. Davenport, having met with difficulties in the settlement of the estate of their testator arising from the conflicting claims of the legatees named in his will among themselves, and also between them and the widow, who dissented from it, have filed this bill for the purpose of obtaining the advice of the Court upon certain questions which are therein stated. In the argument here, the counsel have conceded that only two or three of these inquiries admit of much doubt, and our attention, therefore, will be directed mainly to them.
1. The widow having dissented from the will, claims that in ascertaining the share of the personal estate to which she is entitled, she has the right to have the slaves Ganza and Aaron, who were prosecuted, convicted, and hung for murdering her husband, valued as if they had not committed any felony by which their lives were forfeited. This claim is ungracious and unfounded. Those slaves were, in fact, of no value — just as if they had had the smallpox or any other mortal *Page 22 disease at the death of the testator, and had died thereof soon after. This proposition is so plain that it does not admit of further elucidation by argument.
She also claims to have her share exempt from any costs attending the prosecution and defense of those slaves, and also of the slave George, who was acquitted. We will dispose of this question in connection with the third, in which the legatees of these slaves, respectively, claim to have the costs above stated paid out of the general assets of the estate, while the widow and the other legatees contend that the costs of the prosecution and defense of each of these slaves ought to fall on the legatee to whom he is given by the will. As to the slaves Ganza and Aaron, they were never accepted by the persons to whom they (8) were respectively bequeathed — they formed a part of the estate of the testator, and it was the duty of the executor to take care of them and have them properly defended, and, we think, the necessary costs and expenses of such defense must be borne by the general assets of the estate. The case of George was different; he was received by the legatees to whom he was bequeathed, and sold by them. They took him cumonere, and of course must pay the costs of his defense.
The bequests of the slaves Ganza and Aaron were specific, and of course the loss of them by hanging must fall on the persons to whom they were respectively given, just as if the slaves had died a natural death.
3. The third question has been already answered in our opinion upon the latter part of the first.
4 and 5. The fourth and fifth questions may be considered together. The language of the thirteenth clause is too explicit to admit of any doubt that the division between the legatees, Mary Amanda Spruill, Mary Ann Ward, and the children of William H. Davenport, is to be per capita. The will says expressly that Mary Amanda Spruill and Mary Ann Ward are "to share equally with each of the children of William H. Davenport." How sharing equally with each can be construed to mean with all we cannot conceive. The consequence is that Mary Ann. Spruill and Mary A. Ward and W. H. Davenport's children divide one share equally between them.
6. The legatee Mary Ann Ward claims interest on her legacy of $800 from the death of the testator, and her counsel argues strenuously that she is entitled to it. We think otherwise. The general rule is that when the time for the payment of a general legacy is fixed by the testator, it will not carry interest before that time. 2 Roper Leg., 190, chap. 20, sec. 3. There is an admitted exception in the case of such a legacy to a child, or to one to whom the testator stands in loco parentis, who is otherwise unprovided for. 2 Roper Leg., 192, chap. 20, sec. 4. This *Page 23 exception is not made in favor of a grandchild of the testator (9) unless he stands in loco parentis to the legatee. See 2 Rop. Leg., 202, chap. 20, sec. 5, and the cases there cited. There is nothing in the present will or in the facts stated in the pleadings to show that the testator undertook to provide for the legatee as if she were his own child. It is mentioned as a fact that her mother was dead, but nothing is said of her father, or whether he had made any provision for her. The testator does not call the legacy a portion, as was done in Acherly v. Vernon, 1 Peere Williams, 783, nor use any other expression to show that he had placed himself in the stead of the father of the legatee. The general rule, therefore, must prevail, and no interest can accrue on the legacy until it shall become due.
7 and 8. The legatees of the slaves, respectively, are entitled to their hires from the death of the testator. These legacies being specific, the legatees take them, upon the assent of the executor, with the profits which they have produced, just as they would be entitled to the interest on bonds given specifically. See Beasley v. Knox, ante, 1. In ascertaining the shares to which the widow is entitled, these slaves must be valued as of the time of the settlement of the estate. Hunter v. Husted, 45 N.C. 97.
The parties may have a decree upon the principles herein stated. The costs must be paid out of the general assets of the estate.
PER CURIAM. Decree accordingly.
Cited: Swann v. Swann, post, 300; Scales v. Scales, 59 N.C. 166;Ballantyne v. Turner, id., 228; Chambers v. Reid, id., 305; Culp v. Lee,109 N.C. 677.
(10)