Bray v. . Lamb , 17 N.C. 372 ( 1833 )

"I give and bequeath unto Nancy Guilford Bray $500, to be raised and paid out of my estate."

"I leave unto my wife the use of all the negroes that will fall to her by her father's will during her natural life (which negroes are not yet divided), and at her death I wish them to go to my heirs lawfully begotten of her body, if there are such; and for want of such heir of mine, my will is that they go to Isaac G. Bray and William G. Bray in equal shares." The testator appointed his wife executrix.

William Guilford died immediately after making this will, (373) which was proved in February, 1830, when his wife renounced the executorship, and also dissented from the provision made for her, and had since had dower assigned to her. She had no issue by the testator. Administration with the will annexed was granted to the defendant Lamb.

The present suit was brought by the legatee, Nancy G. Bray, against Lamb, the administrator, Elizabeth, the widow, and the remaindermen, Isaac G. Bray and William G. Bray, who were infants; and the bill alleged that the personal estate was said by the administrator to be exhausted in the payment of debts, and prayed an account of it, and also of the real estate of which the testator died seized, and that her legacy might be raised, in case the personal estate should prove deficient, out of the lands in the hands of the widow and the other devisees.

The parties severally answered. Elizabeth, the widow, stated her dissent and the assignment of dower, and claimed to hold the same exempt from the legacy to the plaintiff. The infant defendants answered by their guardian, and insisted that the legacy was payable out of the personal estate only.

In the Superior Court a reference was made to the master to take an account of the personal estate, and of the administration of the defendant Lamb, and also to inquire what lands the testator had at his death, and their value.

He reported in October, 1831, that the personalty amounted only to $363.81, of which all had been disbursed in the payment of debts, except the sum of $52.12, and that there were then unsatisfied judgments against the administrator to a larger amount. He also reported that the testator left lands in fee to the value of $5,777.20, whereof two tracts were sold in May, 1831, on a credit of six and twelve months, by the guardian of the infant defendants, to pay judgment debts against them as devisees of the testators; but the debts were not enumerated nor the amount stated. That the remaining lands (of the value of $4,600) were subject to the dower of the defendant Elizabeth, and also to the dower of the widow of Isaac Guilford, a former owner, and were, with the exception of these parts, in the possession of the infant, (374) devisees of their guardian.

This report was confirmed in 1832, and the cause then removed to this Court. The only question argued in this case is whether the legacy to the plaintiff is charged on the lands, and it has been intimated from the bar that it will probably be unnecessary for the Court to proceed further than to the decision of that, as the parties will be disposed to adjust the controversy as soon as their rights in this respect are declared. We understand that the reference was made by consent to speed the cause, and without prejudice; hence, as the devisees are infants, the Court has allowed the point to be treated as open, and have considered it.

The dissent of the widow remits her to her right of dower, which is held above the will, and is liable neither to debts nor legacies, and the bill must consequently be dismissed as against her.

Upon the general question the Court has no difficulty in declaring the legacy of $500 to be well charged on the real in aid of the personal estate. It seems to us to be expressly charged. It is "to be raised out of my estate," are the words of the testator, and include everything, and show an intention that this legacy should be raised at all events. The other provisions of the will strengthen this construction. It is true, there is no residuary clause, nor are there any words annexed to the devise of the lands expressing in that part of the will that the devise was subject to this legacy. But the testator sets out with the declaration that he means to dispose of all his worldly goods, and the personalty turns out to be very inconsiderable, and, except this legacy, everything given is to the wife for life, whom he appoints executrix, with remainder over to the same persons, in each disposition, and upon (375) the same contingency.

It must be taken, I think, as the executrix, whose duty it is to pay the legacy, is to have the whole profits of the estate during life, that the testator could not intend that this legacy should be allowed by her to fail in case the undisposed residue proved deficient, but that the executrix should make it good out of other parts of the estate. If this be true as against the wife, it is equally or more apparently so in respect to the remaindermen. This legacy is absolute, unconditional, and immediate, and is the only disposition of that kind which gives the idea that when it is directed to be raised out of the estate, the legatee is to be preferred before those to whom a remote and contingent interest is limited, but so limited that when it vests it carries the whole estate to the disappointment of this legatee, unless the estate vests cum onere. These circumstances make the intention clear, though there is no necessity of resorting to them, except as they evince that the obvious sense of the words in which the legacy is given is the true sense in which the testator used them. We consider the charge need not be implied, but it is expressed, and so the Court declares.

We do not go further at present, because the parties do not desire it. Indeed, before the Court could proceed to order the money to be raised by a sale or mortgage, a further inquiry would be requisite as to the profits or the proceeds of the former sales remaining in the guardian's hands, which may of themselves be adequate to the plaintiff's satisfaction. If the settling of the principle should not enable the parties to dispose of the controversy, either can bring any question forward upon a motion for further directions.

PER CURIAM. Decree accordingly.

Cited: Biddle v. Carraway, 59 N.C. 99, 106; Devereux v. Devereux,78 N.C. 389; Worth v. Worth, 95 N.C. 242; Hines v. Hines, ib., 484; Hinsonv. Hinson, 176 N.C. 614.

Dist.: Lassiter v. Woods, 63 N.C. 364.

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