Opinion
(June Term, 1843.)
1. Where a testator gave to different legatees certain negroes by name, and then gave to another legatee "all the balance of my negroes which I am possessed of": Held, that this last was a specific legacy of slaves, as much so as if each slave had been named, and that the other legacies must abate ratably with this for the payment of debts in case of a deficiency of general assets.
2. A bequest to A of "five head of horses, one yoke of oxen, three pens of hogs, five cows and calves, and five sets of farming tools," is rendered specific by the addition to each class of the designation "her choice."
3. So a bequest of "one carriage" and "one set of blacksmith tools" is specific, when it is shown that the testator had but one carriage and one set of blacksmith tools. When upon the face of the will it appears that the testator meant to dispose of something in kind, in the application of the bequest to its subject-matter it may be shown that he had but one of that kind.
4. A legacy to the testator's widow of "one year's provisions" is not a specific but a general legacy.
THIS cause having been set for hearing at Spring Term, 1843, of WAYNE Court of Equity, was at that term transmitted, by consent of parties, to the Supreme Court, upon the bill, answers and report of the master.
The bill was filed by the plaintiff as executor of Charles Hopton, and the legatees in the said will mentioned were made parties defendant. The bill states that in March, 1838, Charles Hopton departed this life, having first published his last will and testament in writing duly attested to convey real and personal estate. The only material parts of this will are the following: "(1) I give and bequeath unto my brother William K. Lane 150 acres of land adjoining his own land, so as not to take any of my cleared land. Also one negro boy by the name of Jacob, to him and his heirs and assigns forever. (2) I give and bequeath to Barbara Ann Everitt one negro girl by the name of Lenar, to her and her heirs and assigns (549) forever. (3) I give and bequeath unto Lavinia Everitt one negro girl by the name of Lavinia, to her and her heirs and assigns forever. (5) My will and desire is that three of my negroes be sold, to wit, Bill, Burwell and Edmund. (6) I give and bequeath unto my beloved wife the following property, viz., all the balance of my lands and negroes which I am possessed of and all my household and kitchen furniture; one year's provisions; five head of horses, her choice; one carriage; one yoke of oxen, her choice; three pens of hogs, her choice; five cows and calves, her choice; five sets of farming tools, her choice; one set of blacksmith's tools, to her and her heirs and assigns forever." The bill goes on to state that the will was duly proved, and the plaintiff qualified alone as executor thereof, and took into his possession all the personal estate of the testator. The bill then represents that the provision made directly in the said will for the payment of the testator's debts was the sale of only three slaves, to wit, Bill, Burwell and Edmund, which the plaintiff had sold, and the proceeds of their sale amounted to $1,505.75; that in the legacy left to his wife in the sixth item of the testator's will were the following slaves, to wit, Salisbury, etc. (naming them to the amount of 21), and their increase, now amounting to five; that there were outstanding debts to a large amount due and owing by his testator, for the payment of which the provision made in the will was utterly inadequate; that by an account taken under the direction of the County Court of Wayne it appeared that there was a balance due to the plaintiff as executor of $10,061.38, which sum was now due him and should be paid out of the estate of the testator, and he prays he may be substituted to the rights of the creditors in all respects until he be reimbursed for the same. The bill further states that the plaintiff is not advised how this sum should be raised out of the personal estate; that William K. Lane, Barbara Ann Everitt and Lavinia Everitt claim that their legacies are specific, and allege that the legacy in the sixth item of the will to the widow is a residuary legacy; and that, therefore, their (550) legacies should not abate for the payment of the said sum until the said residuary legacy should be exhausted. And on the other hand, Philip Hooks (who hath intermarried with the widow of the said Hopton) and his wife contend that the legacy left the said widow is also specific, and should only abate in equal proportions with the other specific legacies left in the said will. The bill concludes with a prayer that the plaintiff may be advised as to the proper construction of the said will and as to the rights of the said legatees respectively, and as to the duty of the plaintiff in the premises, that by a decree of the court he may be advised as to the true nature and legal operation of said bequests; that the plaintiff may be substituted to the rights of the creditors, whom he has paid, until he be reimbursed, and that an account of his executorship may be taken under the direction of the court.
The defendants answered severally and admitted all the allegations of the plaintiff's bill, except that they knew nothing of his disbursements or the state of his accounts as executor, and joined in his prayer that an account might be taken under the direction of the court. They severally, too, set up the conflicting claims set forth in the plaintiff's bill.
A reference was made in the court below to the clerk and master, who reported that there was a balance due to the plaintiff as executor of $10,190.38 on 1 April, 1843. This report was confirmed by the Court.
Husted for plaintiff.
J. H. Bryan and Mordecai for defendants.
The question submitted for our decision in this case is whether, there being a deficiency of assets to pay the debts of the testator, the legacies bequeathed to the defendants William K. Lane, Barbara Ann Everitt and Lavinia Everitt shall abate ratably with the legacy bequeathed to the (551) defendant Elizabeth Hooks, formerly the wife of the testator, or whether the burthen of meeting this deficiency shall be thrown exclusively on the latter. As it is indisputable that the legacies to the first-named defendants are specific, the solution of this question depends upon the inquiry whether the legacy to the testator's wife be specific also.
A legacy is specific where it is a bequest of a specific part of the testator's effects, so distinguished from the rest thereof that, upon the assent of the executor, the property in the thing bequeathed vests in the legatee — an individual legacy, which cannot be satisfied but by the delivery of the identical subject. On examination of the bequests in favor of the defendant Elizabeth it will be found that all the things therein mentioned are enumerated as parts of the testator's property: "I give and bequeath to my beloved wife the following property, viz., all the balance of my negroes, etc.," and, with the exception of what may be comprehended under the description of "one year's provisions," they are as distinctly specified as the things which are named in the bequests to the other defendants. The gift of "the balance of my negroes which I am possessed of" is a gift of each of the testator's negroes not previously named. The bequest of "five head of horses, one yoke of oxen, three pens of hogs, five cows and calves and five sets of farming tools," is rendered specific by the addition to each class of things of the designation "her choice." See 2d Williams on Exrs., 739; Richards v. Richards, 9 Price, 219. The "one carriage" and the "one set of blacksmith's tools" intended by the testator are put beyond doubt by the admitted fact that he had but one carriage and one set of blacksmith's tools. When upon the face of the will it appears that the testator meant to dispose of something in kind, in the application of the bequest to its subject-matter it may be shown that he had but one of that kind to be disposed of. Innes v. Johnson, 4 Ves., 568. But that part of the legacy to his widow which is embraced within the terms "one year's provisions" cannot, we think, be deemed specific. If it refers to a corpus, it designates no particular part of that corpus, but gives (552) so much thereof as may be adequate for her subsistence for one year. It is true that in cases of intestacy, and in cases of testacy where the widow records her dissent from the will of her husband, the law assigns to the widow a year's provision out of her husband's estate in preference even to the demands of creditors. Rev. St., ch. 121, secs. 18, 19, 20, 21, 22. And it can scarcely be questioned but that this part of her legacy was given by the testator by way of analogy to the year's provision so assigned by law. But here she takes the "one year's provision" as of his bounty, therefore as a legacy, and of consequence subject to the payment of his debts. And being a legacy, it must be determined to be a specific or general legacy by the same rules which govern in discriminating between legacies in other cases. There should be a reference to ascertain the values of the respective bequests of personal property made by the testator, and it must be declared that the defendant Elizabeth is bound in the first place to satisfy the demand of the plaintiff to the extent of the value of the year's provision she may have received, and that the residue of the plaintiff's demand is to be satisfied out of the other parts of the legacy to the said defendant and the legacies to the defendants William, Barbara and Lavinia, pro rata.
PER CURIAM. Decreed accordingly.
Cited: Johnson v. Johnson, 38 N.C. 428; Dunlap v. Ingram, 57 N.C. 184; Biddle v. Caraway, 59 N.C. 103; Alsop v. Bowers, 76 N.C. 170; Battle v. Lewis, 148 N.C. 151.
(553)