The facts were that one James C. Burke, the defendant's testator, died in 1864, leaving a will by which he gave to his wife two slaves and other personalty, also some land for life; then, to one grandchild, $400, and to others, among them, $500; and afterwards, to his four living children, naming them, "all my real and personal estate not heretofore disposed of, to be equally divided between the four." At the time of his death the testator owned six slaves, of average value, besides other personal property, and lands.
The slaves were emancipated by the results of the war before the estate had been settled, and, after paying the debts, etc., there remained in the hands of the executor, for the satisfaction of (267) the money legacies above, about $292.00.
The legatees claimed that the land given by the residuary clause was to be sold, and their legacies paid out of the proceeds, before the residuary devisees could take. This was resisted by the residuary devises.
His Honor ordered that the land be sold, and its proceeds applied as prayed for by the plaintiffs; and the defendants appealed. 1. It is doubtful how far the doctrine of mixed or blended residues of realty and personalty applies in North Carolina; as in England it seems to be a corollary from a proposition not received here: See Robinson v.McIver, 63 N.C. 645; also dissenting opinion in Biddle v. Carraway,59 N.C. 95; Dunn v. Keeling, 13 N.C. 283; Knight v. Knight,59 N.C. 134; Graham v. Little, 40 N.C. 407; Harris v. Ross,57 N.C. 413. As all devises are still specific, even where found in a residue (Hensman v. Fryer, Law Reps., 3 Ch. Ap. 420) the language in Knight v. Knight etc., as to funds primary liable, is still law.
2. Where the deficiency in the personalty results from some accident after the testator's death (as here), there seems to be no reason why devisees of land (upon whom it devolves immediately, Patton v. Patton,60 N.C. 572, and not through the executor,) should refund, in consequence of a charge alleged to have arisen after they received their portions, Luptonv. Lupton, 2 John. Ch. 614 (p. 626). *Page 210
This is upon a principle different from that in Dyose v. Dyose, (Wms. Ex'rs, 2d 1167), which has been overruled in England; and never was accepted in North Carolina, Cloud v. Martin, 22 N.C. 274. There, the whole fund remained with the representative of the testator: Here, the part sought to be subjected has gotten (268) home. At the time when the land reached the devisees, there was no pretence that it was subject to diminution. The devisees of the land are not to share in a calamity which has fallen upon the claimants of the personalty.
(3.) Again, so far as the personalty has been taken to pay debts, these claimants are not entitled to be made whole: See McBee, ex parte,63 N.C. 332; Knight v. Knight 59 N.C. 134. This is a case of a mixed residue of realty and personalty, within the principle laid down in Robinson v. McIver, 63 N.C. 645. He cited also 1 Red. Wills, p. 279, §§ 15 and 18, Graves v. Howard, 56 N.C. 302, 1 Rop. Leg. 675, 2d Red. Wills, 370 and n., Bray v. Lamb, 17 N.C. 372. In Robinson v. McIver, 63 N.C. 645, it is said: "When land and personal estate are made a mixed fund in a residuary clause, the land, as well as the personalty is subject to the payment of pecuniary legacies. This, however, is not on the footing of a charge on land, like the annuities in this case, but on the ground that, in order to ascertain what is embraced in the residuary fund, it is necessary to take out the specific legacies, and then to deduct the pecuniary legacies, and only what remains is `the rest or residue of the estate.' The residuary legatee (and devisee) takes only what is left."
In the will under consideration, all of the real and personal estate, "not heretofore disposed of," is given to the four living children of the testator. In order to ascertain what is embraced under this clause, according to a well settled rule that the personal estate is the primaryfund for the payment of debts and pecuniary legacies, it is necessary to take out of the personal estate enough to pay debts. Then take out the specific legacies to the widow; then deduct enough to (269) satisfy the pecuniary legacies; and the rest passes under the description, "personal estate not heretofore disposed of."
By a like process, take out what land is given to the widow, and the rest passes to the devisees, under the description, "real estate not heretofore disposed of." If there had been a deficiency of personal *Page 211 estate to satisfy the pecuniary legacies, it may be that it would have been necessary to deduct from the land enough for that purpose, "not on the footing of a charge on the land." but as a means of ascertaining what land was embraced by the description.
In this case the personal estate was ample to pay debts, to set apart the specific legacies, and to satisfy the pecuniary legacies, leaving four slaves of average value, which, subject to these legacies, passed under the residuary clause. So the land, other than that given to the widow, was embraced by the description, and vested in the devisees, free of anycharge.
It so turned out that afterwards the four negroes were lost to the fund by civil death. The question is, shall this loss fall on the pecuniary legatees, or have they a right to resort to the land which had already vested in the devisees. We can see no principle on which to make the land liable. Herein lies the significance of the distinction taken, in Robinsonv. McIver, supra, between a charge on land, and the process by which to ascertain what land is embraced by the description. If these legacies had been charged on the land, like the annuties [annuities] in the case referred to, as the devisees would have taken cum onere, the loss would fall on them. But as the land vested in them free of the charge, the loss by a subsequent event, that is the emancipation of the slaves, must fall on the pecuniary legatees, in which loss the widow, in respect to her two negroes, and residuary legatees in respect to their interest in the other four, must be common sufferers.
His Honor being of opinion that the land in the hands of the residuary devisees was liable for the pecuniary legacies, made an order of sale, and directed so much of the proceeds of sale (270) as should be necessary, to be applied to the satisfaction thereof.
In this there is error.
Let this be certified.
Per curiam.
Order reversed.
Cited: Little v. Hagar, 67 N.C. 139; Hill v. Toms, 87 N.C. 495;Litaker v. Stallings, 200 N.C. 7. *Page 212