Opinion
(June Term, 1851.)
A testator bequeathed and devised to each of his five children a large amount of personal and real estate "subject to the payment of one hundred dollars," each to A. B., when she should arrive at the age of eighteen. Held, that the duty of paying these sums of one hundred dollars to A. B. was not imposed on the executor, but was a trust to be performed by the children respectively.
When C. D. purchased some of the land and negroes so bequeathed and with notice, he is liable, in default of the legatees and devises, to pay to A. B. the proportion of her legacy which the legatees or devisees, from whom he purchased, were bound to contribute respectively, the legacy to A. B. being a lien on such property.
CAUSE removed by consent from the Court of Equity of ONSLOW, at Spring Term, 1851.
J. W. Bryan for the plaintiff.
(207) The facts were as follows: Lot Humphrey by his last will and testament devised and bequeathed to each of his five children a large amount of real and personal estate, and in each clause of devise and bequest were contained the following words, "subject to the performance and payment of $100 to the direction of the subsequent part of this will. "In a subsequent clause of his will he directs as follows: "I will that my executors apply $100 to the schooling and support of Juliann Littleton. I now will and direct my five children as hereinbefore reserved and provided at the arrival of the said Juliann to the age of 18 years, that the first four named children pay and deliver over unto her $100 cash as her legacy herein by me provided and willed, and that the other (naming her) at her own arrival at 21 years of age, pay and deliver over to said Juliann $100 as part of her legacy as before provided as aforementioned." The executors paid over to Juliann the $100 directed to be paid by them for her schooling, c., and delivered to the legatees their respective legacies.
William Humphrey, one of the defendants, purchased from some of the children parts of the property so devised and bequeathed, with full knowledge of the directions contained in the will.
The prayer of the bill, which was filed by Juliann, was for a recovery from the children of her legacy; and, in case of their default, from the defendant, William Humphrey.
It is admitted, that the sum of $100, which the testator directed his executor to pay to the plaintiff, Julian, has been paid. This sum, therefore, is out of the case.
The defendants, Lot S. Humphrey, Penn and his wife Eldah, Jacob Doty and his wife Minerva, Samuel Doty and his wife Susan, and William Pollock and wife Olive, are respectively liable and must be decreed to pay to the plaintiffs the sum of $100 each, and the four first named are to pay interest on the said $100, from the time the plaintiff, Juliann, arrived at the age of 18 years. The defendants Pollock and wife must pay interest upon the said $100 from the time the said Olive arrived at the age of 21 years.
The next question is, as to the secondary liability, in the event that the amount cannot be made out of the parties above named.
First: It was insisted, that the defendant William Humphrey was liable, because it was his duty not to pay over the (210) legacies, until the said sums of $100 were paid by the legatees respectively. We do not think this duty was imposed on him by the will. The testator gave the several legacies to his children and imposed on them the trust or charge of paying to the plaintiff, Juliann the said sum of $100 each, when she arrived at the age of 18 years, with the exception of Olive, who was to pay the $100 charged on her legacy, when she arrived at the age of 21. The only duty imposed on the executor in this behalf was to pay the $100, which, it is admitted, he has paid.
Second. It was insisted, that the defendant William Humphrey was liable, because he had purchased with notice some of the negroes and land of the legatees and devisees, charged with the trust of paying the $100. No question can be made as to his having notice. As to the $100 and interest payable by Jacob Doty and wife Minerva, he is clearly liable. He admits he has a contract for the land devised to the said Minerva; and Owen Huggins proves, that he purchased from Jacob Doty and wife two of the negroes, which they took under the will; and the $100 was a charge upon the land and negroes. As to the $100 and interest payable by Lot S. Humphrey, this is a trust and charge upon all the land, which the said Lot S. took under the will of his father, and which he conveyed to the defendant William. But in 1820, Lot Humphrey, Sr., made a deed of gift of certain land to the said Lot S. By his will in 1823, he confirms this gift, subject to the charge, and as it appears from the face of the will, devised to him certain other land acquired after the making of the deed of gift. If this land, acquired after the date of the deed of gift, 1 January, 1820, is of value sufficient to pay the $100 and interest, the defendant William Humphrey, to whom it has been transferred, is liable for the amount; (211) and the enquiry, whether he is chargeable by reason of the land contained in the deed of gift of 1 January, 1820, will be unnecessary.
The cause upon this point will, therefore, be reserved for further directions; and there must be an enquiry as to the value of the land devised, which is not included in the deed of 1 January, 1820.
PER CURIAM. Decree accordingly.
Cited: Hines v. Hines, 95 N.C. 484.