Opinion
(June Term, 1860.)
Property undisposed of by will must be applied in payment of debts before legacies charged with the payment of debts can be subjected.
CAUSE removed from the Court of Equity of BERTIE.
No counsel for plaintiff.
Winston, Jr., for defendants.
The bill is filed by the plaintiff, as executor of George Wynns, praying the direction of the court as to his duty arising under certain clauses of his testator's will, which, among other devises and bequests, contains the following: "I give and bequeath unto my son William D. Wynns all the land I bought of Spivey's heirs, lying on Cashie Swamp; all I bought of Joseph Pugh's heirs, lying on Cashie Swamp; all the (378) I bought of Barbara Ward, adjoining the land I bought of Joseph Pugh's heirs and others; also my Outlaw Mill and all her waters and timbers, and all my negroes, both old and young, which I have not lent or given away, that I hold in possession, to him and his heirs and assigns forever, after my just debts are paid. I also leave to be sold to pay my debts all the lands I have not lent or given away, also everything else which belongs to me at my death of any description that I have not given away." There were other specific bequests in the will. The testator left two notes undisposed of in his will, amounting, together, to $4,000; also other property to the amount of $800, making in all the sum of $4,800 undisposed of. The liabilities of his estate amounted to about $3,800.
The defendants in this suit, who are the next of kin, contend that these debts owing by the estate shall be paid out of the negroes bequeathed to the plaintiff, or, at any rate, that they shall contribute ratably with the notes and other property undisposed of by the will. The plaintiff contends that the undisposed of property be first applied in the payment of debts.
Cause set for hearing on bill, answer, and exhibits, and sent to this Court.
It is a general rule that any fund which is not disposed of by a testator shall be applied to the payment of debts before property which is given by the will can be subjected; in other words, a legatee is preferred to those claiming an undisposed of residue, for he is an object of the testator's bounty, whereas they take by act of law simply because, as it is not given away, and there are no debts to which it can be applied, such residue would otherwise be without an owner or remain in the hands of the executor.
In our case, the words, "after my just debts are paid," which (379) are added to the gift of land and slaves to William D. Wynns, had the legal effect of subjecting the property given to him to the payment of debts in exoneration of the property which is given away by the other clauses of the will, but not in exoneration of the property which is not given away. On the contrary, the appropriation of all the land and everything else of any "description that I have not lent or given away," to the payment of debts, makes that the primary fund, to the exoneration of the property given to William D. Wynns, in pursuance of the principle above stated, no other disposition being made of this residuary fund.
Should there be a surplus of this fund after payment of debts, it is settled that the distribution among the next of kin will be made without reference to advancements.
PER CURIAM. Decree accordingly.