Opinion
(December Term, 1859.)
1. There is nothing in the statute (Rev. Code, ch. 119, sec. 29) providing for a child born after the will of his parent was made, which forms an exception to the rule of law that an assent by an executor to the life-tenant is an assent to those in remainder.
2. The assent of an executor to a life-tenant, generally, leaves nothing that can vest in an administrator de bonis non of the testator.
TROVER for the conversion of slaves, tried before Saunders, J., at the Fall Term, 1859, of BEAUFORT.
W. B. Rodman for plaintiff.
Edward Warren for defendant.
Drewry Lanier, by his will, made in 1843, gave all his property, real and personal, to his wife, Elizabeth, for her life, and at her death to his three daughters and to a child in ventre sa mere at the time the will was written. Afterwards, and before his death, which took place in 1843, his wife had two other children who were unprovided for, who are still living. His wife, Elizabeth, was appointed (56) executrix, and having qualified and acted, she died in 1851, and the plaintiff was appointed administrator de bonis non of the testator Drewry.
The executrix, Elizabeth, took possession of the slaves in question as a part of the estate of the testator, and sold them to one John A. Gaylord in 1848, who sold and conveyed them to the defendant, and the two have had possession of them ever since. The writ issued in March, 1855. It was proved by the subscribing witness to the bill of sale from the executrix to Gaylord that she said, at the time of the sale, that she wanted to raise money to pay the debts of the testator.
It was contended on behalf of the defendant that the slaves were sold to Mrs. Lanier in the capacity of executrix, and that the full title passed by such a sale.
2. That she assented to the legacy to her for life, and that this was an asset to the legacies in remainder, so that there was no estate in these slaves that could vest in the administrator de bonis non.
3. That the defendant was protected by the statute of limitations.
The plaintiff contended that there was no evidence that Elizabeth Lanier sold in her capacity of executrix, or that there were any debts that made a sale necessary, and that such sale conveyed only her life estate, and that the statute of limitations did not begin to run until after the appointment of the administrator de bonis non.
His Honor left it to the jury to say whether or not Elizabeth Lanier sold as executrix, and the jury found that she did sell as executrix, and thereupon a verdict was entered for the defendant on the general issue.
Judgment for the defendant and appeal by the plaintiff.
The defense set up on the part of the defendant is full and complete in any aspect in which the case can be viewed. If (57) the widow of the testator sold the slaves in question in her capacity of executrix, as it was found by the jury that she did, it is conceded that the purchaser acquired an absolute title. But the plaintiff contends that she sold as legatee, for that the finding of the jury that she sold otherwise is without evidence, and that, having sold as legatee, the purchaser acquired only her life estate, leaving an interest in her as executrix, which, since her death, can be asserted by the plaintiff as administrator de bonis non of her testator. The counsel admits that in ordinary cases where the personal property is limited over after the death of the tenant for life, the assent of an executor or executrix to the life tenant would be an assent also to the ulterior legatee, and that in such case a sale of the absolute interest by the legatee for life could not, after the death of such legatee, be questioned by an administrator de bonis non of the testator, but only by the ulterior legatee himself. Hailes v. Ingram, 41 N.C. 477; Quince v. Nixon, 51 N.C. 289. He contends, however, that the rule is different where, by the provisions of the will, or the law, the executor has a duty to perform in relation to the property which requires that the title shall remain in him after the termination of the life estate, and for this he cites Dunwodie v. Carrington, 4 N.C. 355; Allen v. Watson, 5 N.C. 189. Those were cases where the duty was prescribed by the testator in his will. In the present case the counsel insists that the duty is imposed by the statute which makes provision for children born after the making of a will and unprovided for by their parents. See Rev. Code, ch. 119, sec. 29, et seq. We are clearly of opinion that no such effect can be given to the statute. It is true that section 30 requires that the petition, or bill, which it directs to be filed shall make the personal representative a party, but it also directs in section 37 that "the rights of such after-born children shall be a lien upon every part of the parent's estate until his several shares thereof shall be set apart." There is no necessity, then, for holding that an assent by an executor to a life estate shall not operate under the general rule, as an assent to the ulterior executory interests. In the (58) present case the argument is self destructive. If the statute for the purpose of preserving the rights of the after-born children prevented the assent of the executrix from passing the ulterior interest in the slaves, it must also, for the same reason, have operated to prevent the passing of the life estate, and then the sale by the widow, who was both executrix and tenant for life, must have been made in her capacity of executrix, which of course conveyed an absolute title to the purchaser under whom the defendant claimed.
PER CURIAM. Affirmed.