Powell v. Powell

Full title: THOMAS POWELL AND OTHERS v. THE EXECUTORS OF STERLING POWELL, DECEASED

Court: Supreme Court of North Carolina

Date published: Jul 1, 1818

6 N.C. 326 (N.C. 1818)

Opinion

July Term, 1818.

From Robeson.

1. One by his will, after giving several small legacies, directed his executors to sell the remainder of his estate, both real and personal, not before disposed of, and, after paying his debts, to dispose of the proceeds as they might think proper: Held, that this clause absolved the executors from responsibility to any one as to every part of the personal estate which had not by operation of the will come into their hands subject to a trust.

2. Where a testator gives to his executors (as in this case he does) all the rest of his estate not before disposed of, he leaves nothing which the next of kin can claim, for their claim is founded on a partial intestacy.

THIS was a bill filed for distribution of the slaves of (327) Sterling Powell, deceased. He by his will gave several small legacies, and then directed his executors to sell the remainder of his estate, both real and personal, not before disposed of, and after paying the debts, to dispose of the proceeds as they might think proper. The negroes were included in the residuary clause, and it was submitted to this Court to decide, whether, as the testator had not given the negroes to his executors directly, but simply authorized them to sell and dispose of the proceeds, the next of kin were not entitled.

SEAWELL, J.

The residuary clause of the will, by authorizing the executors to dispose of the surplus of the estate as they might think proper, absolved the executors, who are the legal owners of the personal estate, from accountability to any one; and this want of accountability goes to every part of the personal estate which had not, by the operation of the will, come into the hands of the executors, subject to a trust.

When the legatee dies in the lifetime of the testator, and the legacy becomes lapsed, or when the devise is void, and on that account cannot take effect, they shall pass into the residuum of the estate; and the testator having given to the executors all the rest of his estate not before disposed of, leaves nothing which the next of kin can claim; for their claim is founded upon a partial intestacy. Let the bill be dismissed.

Cited: Ralston v. Telfair, 17 N.C. 358; Rawles v. Ponton, 36 N.C. 356.

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