Opinion
(June Term, 1857.)
Unless otherwise provided in the will, general legacies will be taken for the payment of debts before specific legacies, and the legacies of personal property will be taken before those of real estate.
Where a fund was ordered by will to be raised for the payment of debts by the hire of certain slaves named, with a limitation over when the necessary amount was raised, and it turned out that the indebtedness was greater than the whole value of the slaves thus set apart, the court ordered them to be sold in toto, and their values applied to the payment of the debts.
A house ordered by a will to be removed from one tract of land to another and given with the latter tract to a legatee, was held to become personal property when it was removed, and must abate with the specific legacies of personal property.
CAUSE removed from the Court of Equity of Currituck county.
Health, for plaintiffs.
Winston, jr., for defendants.
The questions considered in this case, arise out of the will of Alfred Perkins, the material portions of which are as follows:
"First, I give and bequeath to my beloved wife, Lovey Perkins, the plantation on which I live, containing about one hundred and sixty acres; negroes Jim, Billy, Willis, Joe, Albert, Ailiff and her two children, Henry and Amelia, Jenny and her boy, and Miles; all my household and kitchen furniture; all my farming utensils, c.; negro Harriet and her three children; and all the woodland situated on the Comer Gum farm, (describing it), for the purpose of furnishing the farm, already given her, with fire-wood and rail timber; the whole of the foregoing I give and bequeath to my beloved wife forever.
"Secondly, I give and bequeath to Molly Frost my Skillet-Handle farm, containing about one hundred and forty-five acres, provided she has an heir begotten of her body, and provided she is willing to release my estate from any amount I may owe her as guardian; but if she has no heir begotten of her body at her death, I give and bequeath the foregoing to her two brothers, Thomas Frost and Alfred Frost, to them and their heirs forever. "Thirdly, I give and bequeath to Alfred Frost so much of my Comer Gum farm as is not given away to my wife, and so much of it as is not cut off by Caleb Bell's lead-ditch, to him and his heirs forever. I also give to said Alfred Frost my negro boy Alfred, to him and his heirs forever.
"Fourthly, I give to Thomas Frost the Biggs farm, c.; * * also the piece of land adjoining it that was separated from the Comer Gum farm by Caleb Bell's lead-ditch, to him and his heirs forever.
"Fifthly, I give and bequeath to John Frost my negro boy Haywood, to him and his heirs forever.
"Sixthly, I leave negroes Tom, Tatum, Lydia, Jane, Eliza and her children, to be sold by my executor on a credit of six months, with interest from date; and the fund arising from the sale, together with the notes and money I may leave, I want applied to the payment of my just debts, and the deficiences [deficiencies] I want made up by hiring out negroes Willoughby, Billy, Cuffee, Major, George and Edward, as long as may be necessary.
"Seventhly, After the payment of my just debts, I give to Willoughby McBride the negroes above directed to be hired out, (naming them again), to him and his heirs forever.
"Eighthly, I give and bequeath to Mary Parr, orphan of David Parr, the sum of three hundred dollars. * * *
"Ninthly, I leave the house now used as a school house, near the Baptist church, to be moved by my executor, at the expense of my estate upon the Skillet-Handle farm, for the use of the same, and the land it is now on, I give to Dr. Henry M. Shaw, provided he pays thirty dollars to my estate."
By the last clause of this will, H.M. Shaw who was appointed executor, qualified and took upon himself the burthen of executing the same. The executor took possession of the assets, and it has turned out that the funds and means provided for the payment of his debts, were inadequate to the purpose by nearly, or quite, twelve thousand dollars, and that the slaves ordered to be hired out, will be insufficient, even if sold, to raise the required amount.
The bill is filed by the executor, and by Alfred Perkins, Mary Parr, Molly Frost, Thomas Frost, and John Frost, against Lovey Perkins, and Willoughby McBride, praying for a construction of the will, and that the executor may be directed by this Court in the payment of the debts, particularly as to the mode in which the residue of the indebtedness is to be paid after the fund provided by the will is exhausted; the plaintiffs contending that the slaves directed to be hired out, are primarily liable, while the legatee McBride contends that his is a specific legacy as well as the other, and that it ought not to be sold in whole, but should abate in the proportion of the other specific legacies; and further that the court will declare their several rights in the particulars above set forth; also for general relief.
The defendants answered, admitting the facts as above stated, and insisting on their different views which are above stated.
The cause was set down for hearing on the bill, answers, and exhibits, and sent to this Court by consent.
The difficulties suggested in the construction of the will of the testator, arise, not so much from its terms, as from the effect upon it of his indebtedness, of the extent of which he appears to have been so lamentably ignorant. The pleadings show that, in addition to the funds set apart by the testator himself for the payment of his debts, there will have to be raised out of other property belonging to the estate, the sum of about twelve thousand dollars. The question is, out of what part of it, given as it is to different devisees and legatees, this large amount is to be raised.
We suppose it is undeniable that the personal estate is to be first applied before any part of the realty can be taken for the payment of the debts.
No authority need be shown for the well known principle, that unless it be otherwise ordered by the testator himself, the personal estate is the primary fund for the payment of debts, and we cannot find any such order in the present will. It is equally clear that general legacies must be applied before specific legacies are taken, unless otherwise directed by the testator. A question might, under other circumstances, be raised, whether the specific legacy of certain slaves to the defendant Willoughby McBride, were not charged with the debts prior to the general legacy of three hundred dollars to the plaintiff Mary Parr. The legacy to McBride is, "after the payment of my (the testator's), just debts," and if the question were a practical one, it might be contended that the debts were all to be paid out of the hires or proceeds of these slaves before any other legacy, general or specific, could be touched. But as both these legacies will be exhausted, it is unnecessary to decide which must first be taken. We are clearly of opinion that both these legacies must be applied before any of the other specific legacies can be taken. The intention of the testator that McBride was not to have the negroes bequeathed to him until all the debts were paid, is too plain to admit of his claim to stand on a footing of equality with the other specific legatees. Nor can we assent to the construction for which he contends, that the slaves given to him are to be hired out for an indefinite period, until out of the hires the debts may be paid. The creditors are not bound to wait, and the other specific legatees ought not to be subjected to the risk of the death or depreciation in value of the said slaves. Besides, it is admitted that the proceeds of their sales even, will not be sufficient for the payment of the debts, and no construction can be admissible which postpones to an indefinite period the ascertainment of the liability of the other legatees.
The gift of the house, with the expense of removing the same to the Skillet-Handle farm, must be taken as a specific legacy to the devisee of that farm. By separating it from the land on which it stood, the testator made it a chattel, so as to pass as such to the legatee, though when placed on the land to which it is ordered to be removed, it will again become a part of the realty. As a specific legacy it must contribute pro rata with all the other legacies of that kind for the payment of the remainder of the debts. A decree may be drawn to provide for the settlement of the estate upon the principles here stated.
PER CURIAM, Decree accordingly.