Opinion
(December Term, 1850.)
1. A gift by will of a negro woman and her increase does not include the children born in the lifetime of the testator.
2. Where there are no debts due from an estate, it is the duty of the executrix to pay the legacies, without waiting for the expiration of two years from the death of the testator.
3. The statute allows two years to executors and administrators to settle estates, upon the supposition, that many estates which are complicated cannot be settled in less time; but this is intended as an indulgence to them, and was by no means intended to confer on the residuary legatee the right to have the fund put out at interest for his benefit.
CAUSE removed from the Court of Equity of GREENE, at Fall Term, 1850.
Rodman for the plaintiffs.
J. W. Bryan and Washington for the defendants.
This was a bill filed against an executrix for a settlement of the estate of her testator. The facts, upon which the questions submitted arose, are sufficiently stated in the opinion delivered in this Court.
Travis Turnage, by his will, gives to his wife, Christiana, a negro woman, Amy, and all her increase, and, after giving her several other negroes, notes and other property, he adds, "and one negro woman, Phillis, and her increase." Before the death of (128) the testator and before the making of the will, Amy had a child named Holland, and Phillis a child named Tilman. By the 10th clause of the will, the testator gives to his brother Elias Turnage, "all the balance of my negroes, which I have not disposed of, and all of my notes after the other shares are drawn out."
The first question raised is, whether Holland and Tilman are bequeathed to Christiana, or fall into the residue and pass to Elias Turnage. This question is settled by many adjudications. The will takes effect and speaks from the death of the testator, unless a different intent is expressed; consequently, a gift of a negro woman and her increase is taken to mean, such as she may afterwards have; and in this view, there can be no difference, whether the words are, her increase, or all of her increase, because the words apply only to such as she may afterwards have. This point is settled and need not be elaborated again. Cole v. Cole, N.C. 460; Stultz v. Kizer, 37 N.C. 538.
Christiana Turnage, the executrix, on the 20th of January, 1847, delivered to Elias Turnage, two negroes, King and Nice, and took from him a receipt under seal, which admits, that he had received all the negroes bequeathed, except John, in whom Christiana had a life estate. It is insisted for Christiana, that this deed is a release and bars all claim on the part of Elias to the slaves Holland and Tillman. On the contrary, Elias alleges, that it was a surprise on him, and that he executed the release under a mistake and in ignorance of his rights. It is a clear case of surprise. Being entitled to four negroes, he receives two of them, and executes a receipt in full. If the two received had been other than those he was entitled to and of more value, it might have amounted to a satisfaction; but, as they were two of the four, it is impossible to hold, that it was in satisfaction of the (129) four. As to the two not delivered, there has been no kind of consideration for the release, and it is not against conscience to insist upon having these two also, the receipt in full to the contrary notwithstanding.
A reference was made to the Master in the Court below, who reported, that assets, to an amount exceeding $6,000 in good promissory notes, bearing interest, due the testator, came to the hands of the executrix, upon which sum he has charged interest up to 8 October, 1849; in all $7,041.40. He has credited the executrix with two notes specifically bequeathed, and $1,200 in other good notes given to her, and with various pecuniary legacies paid by her, and has allowed interest from the dates of the several payments up to 8 October, 1849; and he has also allowed vouchers for payment of debts and funeral expenses, amounting to $129.32, upon which he has given interest from the date of the several payments to 8 October, 1849.
The plaintiff, Elias Turnage, filed two exceptions which raise the question, whether the executrix was entitled to the allowance of interest on the legacy to her of 1,200 in other good notes, and on the pecuniary legacies, until after the expiration of two years from the probate of the will. As she is charged with interest on one side of the account, it is right that she should be credited with interest on the other side, provided the legacies were not paid before they were due. That raises this question as the executrix had the funds in hand and there were no debts against the estate, was she at liberty to pay the legacies forthwith and settle the estate? Or was it her duty to keep the fund at interest for two years, merely for the purpose of accumulation, by way of interest, for the benefit of the residuary legatee? The statute (130) allows executors and administrators two years to settle estates, upon the supposition, that many estates are complicated and cannot well be settled in less time. This, however, is intended as an indulgence to them, and was by no means intended to confer on the residuary legatee the right to have the fund put out at interest for his benefit. In this case, as no time is fixed on for the payment of the legacies, they were payable forthwith; and, as the condition of the estate did not require delay, the executrix was not only at liberty, but it was her duty to, pay them as soon as she had funds in hand. In fact, the legatees might have sued within the two years, and under the circumstances the Court would have decreed the legacies to be paid.
The exceptions are overruled. It must be declared to be the opinion of the Court that the plaintiff, Elias Turnage, is entitled to the slaves, Holland and Tilman, and the costs must be paid by the defendant.
PER CURIAM. Decree accordingly.
Par. 1 head-note. Cited: Motley v. Motley, post, 215; Young v. Young, 56 N.C. 220.
Par. 3 head-note. Cited: Skinner v. Wynne, 55 N.C. 43; Beasley v. Knox, 58 N.C. 3; Clements v. Rogers, 91 N.C. 65.
Equity will relieve against surprise (omitted from head-note). Approved: Motley v. Motley, post, 215; Allen v. Bryan, post,281; McWilliams v. Falcon, 59 N.C. 237.
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