Opinion
(June Term, 1866.)
Where a testator directed that two of the shares, into which he divided his estate, "shall be in negro property, which shall be designated by the executors to this will": Held, that such legacies were demonstrative, and, therefore, that upon the emancipation of slaves the legatees thereof lost them, and could not look to other parts of the estate for indemnity.
ORIGINAL BILL, praying for instructions in regard to a will, filed at Spring Term, 1866, of HAYWOOD, when the cause was set for hearing upon bill and answer, and transferred to this court.
(60) No counsel in this court for the complainants.
Bailey, for the defendants.
The complainants were the executors of Ephraim Osborne, deceased, and the defendants his legatees. The will consists of numerous items, and it appeared from it that, previous to its being written, the testator had divided his lands into several "divisions," which were duly numbered on a plat filed with his will.
No further statement is deemed necessary in order to understand the opinion.
In the fourth item of his will the testator provides for raising three shares, to be allotted to the children of his three deceased daughters; such children to represent their mothers respectively; each set to take one share, and the share of each set to be assigned by drawing lots.
The three shares were to be made up as follows: "Division No. 3," in the plat to which reference is made, was to make one of the shares; "the other two shall be in negro property, which shall be designated by the executors to this will."
At the death of the testator he owned many negroes, out of which the two shares could have been made. But by the act of emancipation it has become impossible to make the two shares in the manner directed by the testator, and the question is, Does the loss of these two shares fall upon the grandchildren named in this item or "upon the estate at large"? by which we understand to be meant, Shall the value of these two shares be made up out of other funds in the hands of the executors?
This legacy is demonstrative, i.e., the species of property of which it is to consist is pointed out by the testator, to wit, a part of his negroes to be designated by the executors. The legacy then is specific, and as the subject has been destroyed by the political death of the slaves, the effect is the same as if they had all died a natural death; and in that case it is settled that the legatees must lose the legacy, and can not look to the other parts of the estate for indemnity.
No further instructions are asked for, and as the legatees get only one of the shares, to wit, "Division No. 3," and that one share can itself be divided in the manner directed by the testator, we (61) presume that they will have no difficulty in dividing it in that, or in some other mode.
This opinion will be certified to the court below; and the costs will be paid by the executors out of the assets of the estate.
PER CURIAM. Decree accordingly.
Dist. Hill v. Toms, 87 N.C. 496.