The defendant Nicholas answered and admitted that he proved the will, but stated that he resided in Virginia and had never intermeddled with the estate or received any part of it.
The answer of the defendant William admitted the will as stated, and insisted that for the purpose of raising a fund to pay the debts, a discretion is given to the executors to sell any parts of the effects composing the residue, and do justice to all the parties. That accordingly he sold nearly all the stock, farming utensils, furniture and provisions, except only such things as were indispensably necessary for the support of the widow (a very aged woman and mother of these parties), and that a sufficiency for that purpose, including the grain crop growing at the testator's death, was left unsold, and that he did not sell the crop of cotton of that year. That the widow died in September, 1830, and that thereupon the negroes remaining unsold were divided among the remaindermen, and the plaintiffs received their shares, and that this defendant then sold all the other articles which had been left unconsumed by the widow, and applied the proceeds to the discharge of a balance of the testator's debts then unpaid. He admitted that some of the negroes were sold under execution, and averred that it was unavoidable, as suits were pending against the testator, and he was unable to raise cash to (422) discharge the judgments; and that he purchased Dave, at a full price, and borrowed the money to pay for him, but he submitted to have the purchase declared void, at the election of the plaintiffs. He further admitted that he hired out some of the negroes, but said the widow was entitled to the hire, and that he was ready to account with her representative. With respect to the debt of John Barham, the answer stated that the defendant found among the papers of the testator some evidences that he had paid money for his son John, several years before his death, and that he, the defendant, being unable to get any information upon the subject, or whether his testator had been satisfied, sued out attachments against John (who resided out of the State) and *Page 339 levied them on a slave, Abel, specifically bequeathed by the testator to him, and also on his share of the residue upon which judgments were had, and a sale made, and that he, the defendant William, became the purchaser. That one reason for attaching this interest was that other creditors of John would have done so, and if the debt to the testator was really due, as it appeared to be, it would then be lost; that he made the purchase for the benefit of the estate, and was willing that it should be so considered, if it was to stand at all, or to take it himself, as the plaintiffs might elect. But that he has recently discovered that the debts were probably not due, and that the whole proceeding was founded in a mistake, upon the apprehension of which, at the time of the purchase, it was understood that if it should so turn out, the purchase should enure to the benefit of his absent brother, John; that John has since declared that nothing was due, claimed the property, and instituted proceedings to reverse the judgments, and that the persons interested in the estate, except one of the plaintiffs, Smith, had agreed to surrender the claim. He submitted to hold this part of the estate for the benefit of either of the parties in whom the right might be deemed to be.
The answer of John Barham set forth the particulars of that part of the case relative to the claim against him more at large, and alleged that he did not owe his father anything, and that the proceedings were irregular and null, and claimed his share of the property. He also (423) claimed that all the hire and profits of the negroes and other property which had accrued during the life of the mother, and also the proceeds of the crop growing at the testator's death, belonged to the tenant for life, and was to be accounted for by the defendant William to her representative.
A reference was made to the master, and he reported against the executors a balance of $1,154.29, exclusive of interest. To produce this result the master charged the defendants with the hire of certain of the slaves during the life of the widow, and also with the sales of the cotton and corn crops growing at the death of the testator, and further with the value of the hogs, sheep and wheat, and one cask of brandy, not sold, but consumed by the widow. The master made no report upon the subject of John Barham's debt, and his claim to the property sold for it, and gave as a reason that there were proceedings at law between him and the executors to vacate the judgments and to ascertain the debt, if any. The master also charged the defendant William with the price of Dave, as upon a sale to him.
To the report both parties excepted, but the exceptions of the defendant raised the only questions of importance. *Page 340 The crops growing on the land at the time of the testator's death go to the executor as against the heir; but as between the executor and the devisee, the latter is entitled to them. The devisee takes the land by the intention of the testator, with everything on it, for as the devise carries the land against the heir, so it does the crop against the executor. The rule is so strong that if the devise be for life with remainder over, (424) and the first taker die before severance of the crop growing at the death of the testator, it goes over with the land to the remainderman, in preference to the personal representative of the first taker.
Here the testator died early in September, 1825. He then left in the granary a small quantity of corn and wheat — not more than sufficient to support the stock and negroes — until the executors could, at the next court, prove the will and get authority to sell. It is in evidence that it was not sufficient; for a considerable portion of the growing crop was used for that purpose. Now, although it may be the duty of the executor upon a will like this to sell all the perishable property and invest the proceeds for the security of the fund, for the remaindermen, paying the interest, as the profits, to the legatee for life, yet some time must be allowed to make it, and in the meanwhile the stock must be supported and kept fit for sale, and the slaves fed. The executor ought not to sell until probate, to obtain which he is obliged to wait for a court. It is the interest of all concerned, that the support should be drawn from the property itself until the sale is made in reasonable time. Here it was in December, 1825, about one month after the probate of the will. The exceptions of the defendant to so much of the report as charges the executors with 30 bushels of wheat on hand is, on this ground, allowed. And the exceptions to so much of the report as charges them with the corn and cotton growing at the testator's death is also allowed. In the account a particular quantity of corn, 80 barrels, is charged as a distinct item, at $360, and also of fodder, 10 stacks, at $25, which is seen at once. But the cotton does not explicitly appear upon the report. There is a charge for one bale as an item in the account, being, as the master states, a part of the crop not sold, and put down at the price of $30. But the principal part of this charge is in the general item of "amount of sales," $1,967.93, which upon a reference to the account of the sales obtained from the county court (which (425) was the evidence on which the master acted) is found to include 9,263 pounds of cotton, disposed of at the general sale by auction, at $305.68. It appears upon the proofs that this cotton, fodder and corn was on the land when the testator died, and *Page 341 was gathered by the executor and widow. To the latter they belonged, and to her the executor is accountable, and not to the residuary legatees in remainder.
The same is true also as to the charges of the hire of the slaves, which belong to the widow. When there is a devise of lands, or a specific bequest of a chattel for life, with remainder over, and the subject is charged with debts not equal to the whole value, the tenant for life may be required to keep down the interest out of the profits, or the parties are required to raise the principal by contributions in proportion to the value of their respective interests. But certainly in no case can the remainderman require the whole profits to be applied in extinguishment of the charge, for the sake of saving the subject, for that would defeat the life estate altogether. But in a residuary bequest to one for life, and then over, the whole is subject to the immediate payment of debts, and the executor may and ought to sell enough for that purpose in the first instance; for it is only what remains, after payment of debts, that is given either for life or over. So much of the capital is to be sunk at once. Here it has been done by the sale of a part of the consumable articles and a part of the slaves; and the plaintiffs say that was wrong, and so the master finds, because there were sufficient profits of the unsold slaves to answer that end. That position cannot be maintained. These profits are the use given to the tenant for life. The exception to these charges in the account must, therefore, be allowed.
The master has also charged the executor with 28 shoats, 35 fat hogs, 6 sheep, 30 gallons of brandy, and some casks and hogsheads, of the value, together, of $261. He has also charged them with the value of some household furniture, not sold either at the sales after the death of the testator or after that of the widow, to the value of $15. The executors except to these charges upon the ground that these (426) articles were necessary to the support of the widow and the family and in order to keep up the plantation. The argument on the other side is that these articles should all have been sold, and if necessary for that purpose, the proceeds applied to the payment of the debts, or if not thus needed, invested and the interest only paid to the widow for life, and therefore that the executors are chargeable with their value.
We believe the common understanding of testators in the country is with the defendants; for they can hardly be supposed to give to their widows lands and negroes for life, and to intend to strip the plantation. But we believe likewise that the law is clearly with the plaintiffs on this point.
Where there is a gift of a specific chattel for life, and then over, the executor may assent to the legacy and discharge himself from liability *Page 342 to the remainderman by delivery to the tenant for life, for the assent to that legacy is an assent to the one in remainder. It was formally held, indeed, that the executor would be bound to the remaindermen, unless he took security from the tenant for life that the thing should be forthcoming at his death. But unless there be collusion, it is now held otherwise, and the tenant for life is only bound to give a receipt or sign an inventory, as it is called, unless there be reason to believe that the article will be destroyed or sent away — in which case the executor may refuse to deliver it without security, or the remainderman may after delivery file his bill for security. Foley v. Burnell, 1 Bro., Ch. Ca., 279. In such cases the remainderman must be content to receive the article as it ought to be left by the first taker, after using it with ordinary care and prudence. When, however, there is such a specific gift of what we commonly call, and what the master here calls, "perishable articles," or of what are embraced under the description in the books of "articles quae ipso usu consumuntur," it is difficult to say what is meant. I rather think testators seldom do mean to give such (427) things for life only, and that those words are annexed by mistake to that gift, by inadvertently inserting it in the clause giving other things of a different kind, and which are meant to be for life only. But if the testator really intends such a gift to be for life, we can hardly imagine what rights of enjoyment he meant for the objects of his bounty respectively. For to give wine, corn, sheep or cattle for life is to give the whole, if the legatee is to have any use of it, since the property, nay, the consumption, is inseparable from the use, unless the testator has this further meaning, that the tenant for life may consume and sell, as he would himself if living, and that whatever is left, both of the original stock and the increase, shall be taken as the estate of the testator, and go to the remainderman. I rather suppose that this is the meaning, for such dispositions are generally found in the provisions for wives, to whom children are to succeed, and the testator supposes that the mother would wish them to take all, whether it be his or her estate. This notion may have grown up from the rule of our law respecting increase of slaves given for life, all the articles being given together in the same clause. But to the admission of such a construction there is the insuperable objection that it is against the positive and ancient rule of the common law that the increase is the use and profit, and therefore belongs to the tenant for life in whose time it accrued; to which slaves constitute the only admitted exception. We would not feel authorized, upon bare conjecture as to the testator's intention, to carry it further. Then, what are the respective interests of the tenant for life and remaindermen in consumable chattels specifically bequeathed? From the decisions it is far from clear. We do not know *Page 343 of any in our own courts upon the point. In England it is apparently unsettled. In Foster v. Tournay, 3 Ves., 311, Lord Alvanley said that some learned judges had thought the articles must be sold, and the persons entitled to the limited use have only the interest; which he thought very rigid. Yet in Randall v. Russell, 3 Meriv., 190,Sir William Grant, taking notice of that observation, says that his conception is that a gift for life, if specific, is a gift of the property in things, "quae ipso usu (428)consumuntur," and that it comes within the reason of the old law that there cannot be a limitation over of a chattel after a life estate. He admits it to be otherwise when such articles are included in a residuary bequest with others of a different nature, in which case the whole are to be sold by the executor and the interest received by the tenant for life. That is the case now before the Court, and, therefore, further speculation upon the effect of a specific bequest is unnecessary.
It seems clear that when a residue is given, as such, it is to be sold by the executor. The several things are not given, the testator supposing them not worth giving, as corpora, not knowing how much or which of them it may be absolutely necessary to sell for payment of debts and pecuniary legacies. The gift is, then, of the net balance of the proceeds after the debts are paid, which implies a sale. And if this were not the case when there is an immediate gift of the residue after the debts are paid, it must be when there is a limited use given in the surplus to one for life, and then to another; for then there is nothing to show that as to the consumable article the testator meant to give the particular legatee that use which consists in consumption, and as they are complicated in the same clause with the others of a different nature the whole must go together, and as a part must be sold, the whole must, and the first taker have the profit only. For upon the intention it is taken that the benefit is to be divided between the legatees in the whole subject, which cannot otherwise be, for if the tenant for life does not use the perishable articles, he gets no benefit, and if he does use them, the legatee over gets none. Such parts of the exceptions as relate to these articles must therefore be overruled. The executor is properly charged with the value of them in this suit, and as the widow had the benefit of them, he will be entitled, in the settlement he will make with her representative, to the value now answered for by him, as a credit against the charges against him for her cotton (429) sold by him, for which he has by this decision credit in this suit.
To the rule thus laid down slaves are an acknowledged exception, founded on the known expectations of testators and the general understanding of the country and the profession. Indeed, the reason of the rule itself constitutes them an exception. They are not wasted by use, *Page 344 and if they are, that waste is supplied by their issue, which it has long been held goes with the remainder. With respect to them, service and not increase is the use of the tenant for life. When, therefore, they are included in a residue with other things, they are to be treated as they generally are when left by an intestate, not sold, as other parts of the estate, but divided amongst those entitled, unless a sale be necessary for debts or distribution.
The defendant William having submitted to have his purchase of Dave declared void at the election of the plaintiff, it would be of course. But the master has charged the price to him (which is proved to be a full one) in the account, and it has been paid in discharge of debts, and the plaintiffs have taken no exception upon that point, which is an election, and binds them.
The result of these views is that a balance is found due to the executors as far as the accounts have been stated, and the bill would be dismissed but that the plaintiffs may wish further inquiry upon the subject of John Barham's debt. For that purpose the cause will be retained; but if no motion for further directions be made by the plaintiffs on or before the calling of the case at next term, the bill will be dismissed afterwards, when moved for by the defendants.
PER CURIAM. Order accordingly.
Cited: Saunders v. Gatlin, 21 N.C. 94; Jacocks v. Bozman, id., 194;Johnson v. Corpening, 39 N.C. 219; Etheridge v. Bell, 27 N.C. 88; Jonesv. Simmons, 42 N.C. 179; Saunders v. Houghton, 43 N.C. 221; Tayloe v.Bond, 45 N.C. 25; Williams v. Cotten, 56 N.C. 397; Blount v. Hawkins,57 N.C. 164; Ritch v. Morris, 78 N.C. 379; Peacock v. Harris, 85 N.C. 149;Britt v. Smith, 86 N.C. 307; McKoy v. Guirkin, 102 N.C. 23; In reKnowles, 148 N.C. 465; Haywood v. Trust Co., 149 N.C. 217; Haywood v.Wright, 152 N.C. 432.
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