Gabriel Waggoner made his will in 1825 and died. By it he devised to his wife Mary the plantation on which he resided for her life, and also bequeathed to her for life six slaves by name, and the use of his stock of every kind and his household and kitchen furniture, and after her death he gave five of the said negroes by name and their increase to Nancy Waggoner, one of his daughters, and the remaining negro called Hannah, and all the stock, household and kitchen furniture "and all other property there found that is not named in this will "to the testator's two daughters, Nancy Waggoner and Winifred Blackburn, the wife of William Blackburn. John Holland and George Fulse are the executors and took probate of the will. In 1829 Nancy, the daughter, died intestate and without having been married. She left surviving her Mary, her mother, and her sister Winifred Blackburn, and also the issue of a deceased sister, named Susannah Madeiras, who were Thomas Madeiras and Alfred Madeiras, sons of the said Susannah, (287) deceased, and Louisa Barron and Susannah Barron, which Louisa and Susannah were the children of Betsy Barron, a daughter, then deceased, of the said Susannah Madeiras. William Poindexter took administration of the estate of the intestate Nancy. In 1839 Mary, the widow, died intestate, and at her death she left surviving her daughter, Mrs. Blackburn, and her grandchildren and great grandchildren above mentioned, namely, Thomas Madeiras and Alfred Madeiras, the sons of her deceased daughter Susannah Madeiras, and Louisa Barron and Susannah Barron, the daughters of the said Betsy Barron, deceased. William Poindexter also took administration of the estate of Mary the widow.
It does not appear that at the death of the widow any of the stock or furniture which were given to her for life remained specifically. But she left on the plantation a crop raised or growing thereon, and also stock purchased by her or the product of that given to her by the testator. Those articles the executors of her husband claim, to be sold and disposed of under the will, namely, to be equally divided between Mrs. Blackburn and the representative of Nancy Waggoner. But Poindexter sold the *Page 234 same as administrator of Mary, the widow, and holds the proceeds for distribution amongst her next of kin.
After the death of Mrs. Waggoner Poindexter, as administrator of Nancy Waggoner, also sold the five slaves bequeathed in remainder to her with their increase, and holds the proceeds subject to distribution. Holland and Fulse then also sold the negro Hannah, which was given in remainder to the daughters Nancy and Winifred.
To Mrs. Blackburn, Thomas Madeiras assigned his distributive share of the estate of his deceased aunt, Nancy Waggoner, and to Phillip Barron he assigned his share of the estate of his deceased grandmother. William Blackburn, the husband of Winifred, died in 1832 intestate, and administration on his estate was granted to John Blackburn and Madison Blackburn. They now claim the legacy given by the testator to Mrs. Blackburn, (288) and also her distributive share in her sister Nancy's estate, as having vested in their intestate as husband, whereas she claims each as having survived to her.
The bill is filed by Holland and Fulse, the executors of Gabriel Waggoner, and by Poindexter as administrator of his two intestates against Mrs. Blackburn and the administrators of her late husband, and also against Alfred Madeiras and Phillip Barron, and against Susannah Barron and Louisa and her husband John Lowry, praying that it may be declared, first, to which estate the crop and stock left at the death of Mrs. Waggoner belong, that of herself or of the testator; second, whether the legacy and distributive share of Mrs. Blackburn belong to her or to the administrators of her late husband; third, who are the next of kin of Nancy Waggoner, deceased, and in what proportions they take, and particularly whether her mother, Mary, was entitled to any and what part of her estate, and whether Susannah Barron and her sister Louisa are entitled to any and what part thereof; fourth, who are the next of kin of Mary Waggoner, deceased, and in what proportions; and particularly whether the said Susannah Barron and Louisa are entitled to any and what part of her estate. The defendants have answered and submit to any decree the Court may deem just.
There seems to be so little difficulty in solving the questions propounded in the bill that we are somewhat at a loss for a reason for its having been filed.
The most important point in its consequences to the parties is that between Mrs. Blackburn and her husband's administrators, and upon that there is no doubt. A legacy given to a married woman or a distributive share falling to her during coverture, *Page 235 and not received by the husband or disposed of by him in his lifetime, survives to the wife. These points have been so recently ruled by us that we need only refer to the cases of Revel v. Revel, 18 N.C. 272; Hardie v.Cotton, ante, 61. The administrators of the husband can get nothing in the premises.
Any of the articles given specifically by the testator and remaining in specie at the death of the widow Mary belonging to the daughters Nancy and Winifred under the will. (289) But the increase of stocks of horses, cattle and so forth belong to the tenant for life; and so do also the crops left by her as the fruits of her industry, and likewise the growing crops, as emblements. The proceeds of all these articles are to be distributed in the course of administration amongst Mrs. Waggoner's next of kin. Those next of kin are the intestate's daughter and only surviving child, Mrs. Blackburn, to whom one-half of her mother's estate belongs; her grandsons, Thomas Madeiras and Alfred Madeiras, to each one-third of one moiety; and her great-granddaughters, Louisa and Susannah, one-third of one moiety between them, or to each one-sixth thereof. These persons all represent Betsey, a deceased daughter of the intestate Mary. By the act of 1766, ch. 79 (Rev. St., ch. 64, sec. 1), lineal representation is unrestricted, and therefore all lineal descendants of an intestate succeed to shares of the estate, subject to the proviso that if the kindred be of unequal degrees then those more remote must claim by representation; and all the children of a deceased person can, together, get only what the parent, if alive, would have taken.
By the act of 1766 no representatives are admitted amongst collaterals after brothers' and sisters' children. Consequently Susannah Barron and Louisa, her sister, take no part of the estate of the intestate Nancy Waggoner. Pett v. Pett, 1 Salk., 250; 1 Ld. Raymond, 571. By the express terms of the last provision in the act the previous right of the mother, after the death of the father to succeed to the whole estate of a child, dying without wife or child, is cut down to an equality with every brother and sister and the representative of them. So that Nancy's estate is divisible into three shares, of which one belongs to the administrator of her mother, one belongs to her sister, Mrs. Blackburn, and the remaining one-third belongs to her two nephews, Thomas and Alfred Madeiras, as representing their mother, equally to be divided between them. Of course the original shares of Thomas Madeiras belong to his respective assignees as stated in the pleadings.
The costs of the complainants respectively in this suit must be *Page 236 (290) paid out of the assets in their hands respectively, and each defendant must pay his or her own costs.
PER CURIAM. Decree accordingly.
Cited: Mardree v. Mardree, 31 N.C. 304; Whitehurst v. Harker,37 N.C. 293; McBride v. Choate, ib., 613; Arrington v. Yarborough,54 N.C. 75, 78; Woodley v. Gallop, 58 N.C. 140; King v. Foscue,91 N.C. 119.