"I consider the most benevolent plan that I can pursue towards *Page 7 my negroes will be the following: I desire that they shall all be sold in families; that husband and wife, where I own both, and their small children, shall be put up together. They shall not be sold to speculators, but to persons for their own use." "Happy, Penelope's daughter, I leave to my sister during her life, and to be sold at her death, or to be made free if her conduct should merit such a distinction, in the opinion of my (16) sister." "The money arising from the sale of the above negroes shall be vested in bank stock. My sister, Margaret G. Hinton, to receive two-thirds of the interest; and my brother, Thomas B. Dashiel, one-third, during their lives. At their death, the bank stock to be given to Grayson Dashiel, the eldest son of my brother, Thomas Dashiel."
To this will the testatrix, in July, 1835, added a codicil, in the following words:
"Feeling and knowing at all times the uncertainty of life, I desire that, in case the education and tuition of Grayson Dashiel is withheld from me, not having confidence in those that now direct his ways, I give and desire the bank stock before named and disposed of to be divided between the said Grayson Dashiel, Sarah Ellen Dashiel and Elizabeth Mary Dashiel; the two latter-named persons are the children of my youngest brother, George Warren Dashiel." If Grayson should die without heirs, his portion to be divided between Sarah Ellen and Elizabeth Mary Dashiel. The bill then stated that the plaintiff, who was named executor in the said will, and had qualified thereto, had sold the slaves, required by the will to be immediately sold, upon a credit of twelve months, with interest on the purchase money from the date; and that, as the term of credit was about expiring, he was desirous, as soon as he could collect the money due on the sales, to invest it in bank stock, according to the directions of the will; but that a difficulty was likely to arise in the execution of the said trust, for that the defendant, Joseph B. Hinton, whose wife was the sister of the testatrix named in the will, insisted that nothing was to be invested in stock but the principal sum for which the sales were made, and not interest accruing on such sales from the time when they were made, up to the day of payment, and claimed that two-thirds of such accruing interest should be paid over to him as due to his wife as profits, interest and income. The bill further stated that the said Joseph B. Hinton insisted that, under the clause of the will in relation to the negro, Happy, she passed to his wife and had consequently vested in him absolutely, and not merely for the life of his wife, and he had expressed a design to sell the *Page 8 (17) said slave. But the plaintiff alleged that he was advised that in both of these claims of the defendant, Hinton, he was wrong, and the plaintiff could not safely yield to his demands.
The bill further stated that Grayson Dashiel, the legatee named in the will, came with his father and mother to the residence of the testatrix, in the year 1829 or 1830, and remained with her, as members of her family, about the space of two years, when he and they left her and never returned to her house, nor was the said Grayson ever after under the direction and control of the testatrix. Whether the said Grayson was entitled to the whole principal of the bank stock, according to the will, or whether the case had arisen under the codicil, entitling the said Sarah Ellen and Elizabeth Mary Dashiel to take with him, the plaintiff alleged that the was unable to decide, and that he was advised by counsel that it was a question of doubt and difficulty, on which he ought not to determine. The bill then prayed that the rights of the parties and the duty of the plaintiff, upon all the questions above stated, might be declared by a decree of the court; and that, should the defendant, in the opinion of the court, be entitled only to an estate for the life of his wife in the negro, Happy, he might be decreed not to sell or remove her; and that proper and adequate security might be taken, under the direction of the court, that she might be forthcoming at the expiration of the life estate.
The answer of the defendants admitted the facts set forth in the bill, but insisted upon their respective rights under the will of the testatrix. Upon the questions which have arisen between the plaintiff and the defendants, Joseph B. Hinton and wife, the Court is of opinion with the plaintiff.
The testatrix directed by her will certain slaves to be sold, the money arising from the sale to be vested in bank stock, and the interest of that stock to be paid two-thirds to her sister, Mrs. Hinton, and one-third to her brother, Thomas B. Dashiel, (18) during their lives, with certain limitations over after their death. The executor has sold these slaves, allowing on some of them a credit of twelve months, taking bonds from the purchasers drawing interest from the day of sale. And upon these facts it is contended by the defendants, Hinton and wife, *Page 9 that only the principal money secured by the bonds is to be invested in stock, and that the interest which accrues on the day of payment is divisible as that of the bank stock would have been had the price of the slaves been instantly, on the sale, paid in cash and converted into stock. The will is silent as to the terms and conditions of sale; but we hold that the testatrix did intend a sale upon credit. This is the universal usage of the State; and where the will intimates nothing variant from this usage, it is fair to suppose that the will was made with an implied reference to it. This custom is either founded upon or has caused the enactment of the statute which makes it imperative on executors or administrators who sell to pay debts, or to make division of the personal estate of their testators or intestates, to give not less than six months' credit for enhancing the price of the property. See Laws 1794 (1 Rev. Stat., ch. 46, sec. 11). A credit of twelve months on the sale of slaves is usual, and it cannot be deemed unreasonable, where the testatrix has forbidden that they be sold to speculators or to others than those who might buy for their own use. Such purchasers have usually to look to their annual crops for the means of meeting their engagements. Believing that the testatrix contemplated a sale upon credit, and entertaining the opinion that the credit allowed was not unreasonable, we hold that the amount which the purchasers are to pay upon the expiration of the term of credit, in whatever form such payment may be reserved or secured, is in the language of the will, "the money arising from the sale."
On the second question raised between these parties, we are at a loss to see upon what ground a larger estate in the negro girl, Happy, is claimed by Mr. and Mrs. Hinton than for the life of the latter. The case of James v. Masters, 7 N.C. 110, where this Court held that the legatee took but an estate for life, was one far more favorable to a claim of the absolute (19) property than that arising upon the bequest now under consideration. The power which the testatrix has conferred on Mrs. Hinton, directing the girl to be sold or set free at her death, in no way enlarged her estate.
Upon the other question whereon advice is prayed, the Court is of opinion that, inasmuch as it is admitted upon the pleadings that the testatrix did not have the direction or control of the education or tuition of Grayson Dashiel from a time anterior to the making of the will of the testatrix until her death, the contingency mentioned in the codicil thereof, upon the happening of which the interest in the bank stock bequeathed in the body of the will to said Grayson, became, according to the terms of the *Page 10 codicil, divisible between the said Grayson and Sarah Ellen and Elizabeth Mary Dashiel, has occurred. The dissatisfaction which the testatrix declares in the codicil with the manner in which his education and tuition were then conducted furnishes a clear exposition of the sense in which she uses the phrase, "in case the education and tuition is withheld from me." She intends that the conditional and prospective disposition made in the codicil shall depend upon the fact whether the training of this youth shall continue as it then was, with those in whom she had not confidence, or be brought under her guidance and direction. In the sense of the testatrix, it was withheld from her, because she had it not.
The plaintiff is to pay the costs of the suit out of the fund.
PER CURIAM. Decree accordingly.
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