Rust, Johnston & Co. v. Billingslea

Warner, Judge.

1. It is considered, ordered and adjudged that the judgment and decree of the Court below be reversed, it being the opinion of this Court that the necessary expenses of the administration, including the provision allowed for the support of the family of the intestate, should be paid out of the general funds of the estate.

2. That the decree in favor of Milton Creighton, trustee, etc., should be affirmed as to the amount thereof, and be paid next after the expenses of administration and the year’s support of the intestate’s family.

3. That the widow of the intestate is entitled to dower in the undivided half of the Hill plantation, and in the Mott and Clayton plantations, but she is bound to discharge the incumbrance of Vasou’s mortgage to Jones on the one undivided half thereof, which existed prior to the seizin of her husband of that undivided half of said last named plantations.

4. That Rust, Johnston & Company, assignees of the mortgage made by the intestate to Hill, have a specific lien on the property covered by the mortgage, and are entitled to have their mortgage debt paid out of that property according to the priority of its lien on that specific property after the widow’s dower shall have been allowed.

5. That the widow of the intestate is not entitled to a homestead and personal exemption out of his property, in addition to her dower, and provision for her year’s support.

6. That the factor’s lien of Rust, Johnston & Company is not entitled to priority of payment out of the proceeds of the crops made on the Mott and Clayton plantations, in the years 1868 and 1869.

7. That the overseers, unless they worked as common day laborers on the plantations, are not entitled to priority of lien for the payment of their wages.

It is further ordered and adjudged, that the Court below proceed to hear the case, and to order a distribution of the assets of the intestate estate in conformity to the judgment of this Court on the questions decided by it on the exceptions taken to the decree, and that so much of the decree of the Court below as was not excepted to stand affirmed, and that the Court decree a sale of the Mott and Clayton plantations so as to enable the widow to have her dower out of the proceeds thereof, as she has made her election to do so, and to apportion the proceeds of the sale of the Mott and Clayton plantations and the proceeds of the sale of the Hill plantation (which has already been sold) to the payment of the widow’s dower, she being entitled to her dower in the one undivided half of the Hill plantation, and to her dower in the proceeds of the sale of the Mott and Clayton plantations, on discharging the incumbrance created by Vason’s mortgage on the undivided half of the laud to Jones; and after the widow’s claim of dower is paid the balance of the proceeds of the sale of the specific lands covered by the respective mortgages, to be applied to the payment of the respective mortgage liens on the specific property mentioned therein. And if, in the payment of the assets as hereinbefore directed, there should not be sufficient assets of the intestate’s estate in the hands of the administrator without intrenching upon the specific mortgage liens, then the respective mortgage liens on the specific property to abate in proportion to the respective amounts thereof.

Judgment reversed.

McCay, Judge, concurred,' but furnished no opinion. Lochrane, Chief Justice, dissented, but gave his reasons therefor in Slaughter vs. Culpepper, post, next case.