The petition was filed in September, 1871, by Mary Little, as executrix of James Little, who died in 1862, against the heirs and devisees of said testator, and the heirs of a deceased infant child of Elizabeth Little, his residuary legatee, the said Elizabeth (136) and her child having successively died shortly after the death of said testator.
The material portions of the testator's will are in these words: 1. I will and bequeath unto my mother, Mary Little, one negro boy, by name James, one by the name of Perry, also four hundred dollars.
2. I will and bequeath to my sister, Elizabeth Little, to pay all my just debts, and to have all the balance of my estate and papers of every kind, after paying my just debts.
The petition stated that the personal property had been exhausted in *Page 100 the payment of debts, and that it was necessary to sell part of a tract of land belonging to the testator's estate, and embraced in devise to Elizabeth Little, to pay the unpaid debts, charges of administration, and the pecuniary legacy of $400 to the Executrix.
The answer of some of the defendants made a question as to the administration of the assets by the executrix, and the amount of debts due, and denied that the said legacy of $400 was a charge upon the real estate. It was referred to the Clerk to state an account of the administration, and he reported a balance of $298.38 as due from the estate on account of debts and charges of administration. He charged the plaintiff with a large amount of Confederate money, received mostly in 1863, and credited her with disbursements, and $400 funded in her name in 1864.
The defendants contended, that upon the facts stated in the report, the legacy of $400 was, in law, satisfied, and was, in no event, a charge on the land.
The Clerk adjudged otherwise, and ordered the sale of the land to pay the said balance due as debts and charges, and the legacy of $400. Upon appeal to the Judge from this decision he overruled so much of the judgment of the Clerk as adjudged the legacy of $400 to be a (137) charge on the land, and the plaintiff appealed to this Court. Two questions are presented in this case:
1. Was the legacy of $400 to Mary Little paid? She was an executrix and received assets to an amount greater than her legacy, but as it finally turned out, not sufficient to pay the debts and legacy. Much of the money received was Confederate, and she invested $400 of this in Confederate bonds, which were made payable to her as executrix.
We think neither of these circumstances amount to a payment. She had no right to apply any of the assets to her legacy until all the debts were paid. She was not obliged to take payment in Confederate money. And there is no proof that she elected to do so. The investment in Confederate bonds may have been because the creditors would not receive Confederate money. The mere identity of the amount invested with that of her legacy is of no importance, since the (139) bonds were expressly taken in her representative character and on no account of the estate.
2. Is the legacy a charge on the lands devised? or, to speak more accurately, *Page 101 does it go to diminish the lands devised? The will gives to Mary Little $400, and proceeds: "Secondly, I will and bequeath to my sister Elizabeth Little to pay all my just debts, and to have all the balance of my estate and property of every kind, after paying my just debts."
We think the question must be answered in the affirmative, on the authority of Robinson v. McIver, 63 N.C. 645, approved in Johnson v.Farrell, 64 N.C. 267. It is in conformity with the English cases cited in 2 Jarman on Wills, 532, especially Hassell v. Hassell, 2 Dich., 526; Benchv. Biles, 4 Mad., 187, and Cole v. Turner, 4 Russ., 376.
It can make no difference, that the personalty was originally sufficient to satisfy both debts and legacies, if it was afterwards lost without fault of the legatee. The doctrine must be applied to the property as it turned out to be. The other cases cited for defendant, we think, do not apply.
The judgment below is reversed, and the case is remanded.
PER CURIAM. Reversed.
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