Opinion
(June Term, 1864.)
1. Testator gave to his wife a tract of land for her life, and after disposing of several other articles of property and sums of money, says: "All of my property that is not named, both real and personal, is to be sold and, after paying all my just debts, to be equally divided between my lawful heirs in such a way as to make them all equal." The reversion in the land devised to the wife for life falls into the residue and must be sold for an equal division.
2. No action can be sustained on a covenant made by one of the heirs who had received more than his share, to secure the excess so received by him until the reversion had been sold.
THIS was an action of covenant brought on the following deed:
Know all men by these presents, that we, Daniel Latimore as principal and James C. Latimore and John Latimore as securities, promise to pay David Cline, executor of Frank Latimore, deceased, such sum as may be due from the said Daniel Latimore to make the other heirs equal with the said Daniel in the amount due each one from the estate of Frank Latimore, deceased. Witness, etc.
D. LATIMORE, [L. S.] JAMES C. LATIMORE, [L. S.] JOHN LATIMORE. [L. S.]
Frank Latimore by his will gave to his widow, who was alive at the time of the trial, a tract of land during her life, worth at the testator's death $2,000 or $3,000. The will contains this clause: "My eldest son Daniel I have given 223 acres of land on Knobb Creek, which was worth $600, and other property worth $85, and also a negro boy named Anthony (provided he will refund back sufficient to make the rest of the heirs equal to himself), which boy was worth $850." The testator has many children, to some of whom he declares in his will he had made advancements of a certain value; and the dispositive part of his (207) will concludes as follows: "My daughter Susan I have given her her full share of all that I intend for her to have out of my estate. All my property that is not named, both real and personal, is to be sold, and, after paying my just debts, to be equally divided between my lawful heirs in such a way as to make them all equal, Susan excepted." The testator's estate, exclusive of the land devised to his widow for life, and including the property given to his children other than Susan, was worth $8,000, and Daniel had received more than his share by $900. The reversion of the land given to the widow for life had not been sold.
The defendant moved to nonsuit the plaintiff, because he had brought suit before he had sold the reversion in the land devised to the widow. The judge reserved the question of law, by consent of parties, with leave to enter a nonsuit if he should be of opinion with the defendant. The jury returned a verdict in favor of the plaintiff. The judge being of opinion with the defendant on the question of law reserved, ordered the verdict to be set aside and a nonsuit to be entered, from which judgment the plaintiff appealed.
No counsel for plaintiff in this Court.
Phillips for defendant.
We concur with the court below in awarding a judgment of nonsuit.
The reversion in the parcel of land devised to the wife for life was a part of the testator's estate undisposed of specifically, and which fell therefore into the residue.
This executor is required to sell and divide among the heirs, so as to equalize shares. It must be converted into cash, and applied as the will directs; in other words, the will must be fully executed before the sum secured by the covenant can be ascertained or considered due. The action was therefore premature.
The judgment of nonsuit is (208)
Affirmed.