Opinion
(December Term, 1857.)
Where specific and pecuniary legacies were given absolutely, by will, with executory bequests over upon specified contingencies, all that the executor is required to do is to deliver the property to the first taker (he giving a receipt). He has no right to exact a bond for the security of the ulterior claimants, but they must look to the protective aid of the court to secure them from loss by removal, waste or destruction, as the case may arise.
CAUSE removed from the Court of Equity of Wake county.
Fowle, for the plaintiffs.
Moore, for the defendant.
Margaret G. Cotten, died in the county of Wake, on 5th of December, 1855, having executed her last will and testament. By the will aforesaid, she bequeathed to Frederick K. Cotten a negro slave by the name of Prince, and to Eliza H. Thompson, a negro woman named Sabina and all her children, except Prince. She then bequeaths as follows:
"5th. All the residue of my estate, I give in the following manner, viz: To my son Frederick K. Cotten, one share; to my grand-daughter, Eliza H. Thompson, one share; to my four grand-children, viz., Margaret E. Cotten, Arabella C. Cotten, Florida C. Cotten and John W. Cotten, one share. Frederick and Eliza accounting for the negroes given them above.
"6th. Should Eliza H. Thompson die without issue, that is, a child or children, then, and in that case, I give all the property bequeathed to her above, of every description, to my son Frederick K. Cotten, one share or one half, and to Margaret E. Cotten, Arabella C. Cotten, Florida C. Cotten and John W. Cotten, one share or the other half.
"7th. Should one or more of the children of my son, John W. Cotten, viz., Margaret E. Cotten, Arabella C. Cotten, Florida C. Cotten and John W. Cotten, die without issue, then, and in that case, all the property bequeathed to them above, to be divided between the survivors. Should all die without issue, then, and in that case, I give all the property bequeathed to them above, to my son Frederick K. Cotten and my grand-daughter E. H. Thompson."
The defendant, Frederick K. Cotten, was appointed executor in the said will, and was qualified and undertook the discharge of that office. The bill alleges that a large amount of personalty came to the hands of the executor, and prays for an account and settlement among the legatees. The above named Eliza H. Thompson, had intermarried with the plaintiff, J. J. Williams, and Margaret E. Cotten with the plaintiff Joseph A. Engelhard, before the filing of the bill; Arabella C. Cotten, Florida C. Cotten and J. W. Cotten, are infants, and sue by their mother and next friend, Mrs. Laura Cotten.
The defendant answered, admitting the facts stated in the bill, and professing a readiness to pay over the above legacies, under a decree of the court of equity; but he doubts whether it would be safe for him to pay the principal of the fund, which is chiefly money, to the primary legatees, or whether he should only pay the interest, and he asks to be advised by the Court, in regard to his duty in this particular. He states, that for the purpose of satisfying all the legatees, and for the purpose of settling the estate in a safe and speedy manner, he invited the filing of this bill, and is willing to abide by such decree as the Court may make in the premises.
The cause was set down for hearing on the bill and answer, and transmitted by consent.
It is now a settled rule in this State, that if a mixed and indiscriminate fund of goods and other things is given as a residue to one for life, with a limitation over, it is the duty of the executor to sell the property, and pay the interest to the first taker during his life, keeping the principal for the remainderman; on the ground, that this is the only mode in which the latter can get a fair share of the testator's bounty; Smith v. Barham, 2 Dev. Eq. 420; Jones v. Simmons, 7 Ire. Eq. 178. But when it appears to be the intention of the testator, that the legatee for life shall have the use of certain articles of a specified nature, then the executor has no right to sell them, but must deliver them to the tenant for life, in which case, his assent to the legacy will enure to the benefit of the remainderman, who may, at any time, if it should become necessary, take measures to prevent the removal or destruction of such parts of it as are not of a nature to be consumed in the use; Tayloe v. Bond, Busb. Eq. Rep. 5. When the property is given to the legatee absolutely, with an executory bequest over upon a specified contingency, the reason for delivering it to the first taker is much the stronger, because his interest is greater, and that of the ulterior limitee, is more remote and uncertain. The executor, after giving his assent, will have nothing more to do with the property, and it will be left to the person, having such executory or contingent interest, to apply to the court for its protective aid, whenever the property is really in danger of being removed, wasted or destroyed. In the case before us, to some of the legatees, negroes and other articles are given specifically, while to others, general or pecuniary legacies only are given; but the executory limitations over are applied equally to each of the legatees, and to both species of legacies. It is clearly the duty of the executor to assent to the legacies of the slaves, and the other specified chattels, and as to them, he has no right to require the legatees to give bond, with security, for the forthcoming of the slaves and other articles, in the event of the ulterior limitation taking effect. The same rule, we think, must apply to the money legacies; and all that the executor can be required to do, is to take a receipt from the legatees (or from their guardians, if they be minors,) for the articles or money delivered or paid to them, for the benefit of those who may, upon the happening of the contingency mentioned in the will, become entitled to it; Bullock v. Bullock, 2 Dev. Eq. Rep. 321. A decree may be drawn in accordance with the principle herein declared.
PER CURIAM, Decree accordingly.