Hill v. . Toms , 87 N.C. 492 ( 1882 )

We concur with his Honor in his interpretation of the will and the legal effect of the clauses on which the controversy depends. Where there is a residuary disposition of both personal and real estate, while the former is primarily liable in exoneration of the latter, yet both are chargeable with the payment of the money legacies. "This, however, is not on the footing of a charge on land like the annuities in this case," remarks PEARSON, C. J., in Robinson v. McIver, 63 N.C. 645, and repeated in Johnson v. Farrell,64 N.C. 266, "but on the ground that in order to ascertain what is embraced in the residuary fund, it is necessary to take out the specific legacies and then to deduct the pecuniary legacies, and only what remains is the rest or residue of the estate."

A recent writer also remarks: Legacies are charged on the land, when the residue of the realty and personalty is bequeathed in one mass. But a charge of legacies on all the real estate of the testator does not charge lands specifically devised. O'Hara on Wills, 241.

The testator specifically designates the portion of his estate from which his representative is to derive the means of discharging the bequests, and appropriates the land and the money into which it is to be converted after the death of his wife, with equal clearness in the direction that it "be equally divided among my (his) children now living and the children of Drusilla Hill," the children taking a sixth part.

There is no principal upon which these beneficiaries can be (496) deprived of the specific gift of the proceeds of the sale of the land to make up the losses of a money legacy caused by the emancipation of the slaves, from which source alone the payment is to be made, any more than if they had died a natural death. Johnson v. Osborne, 62 N.C. 59.

The cases which seem to have been relied on by the appellants for disturbing the dispositions made of his estate by the testator, (Lassiterv. Wood, 63 N.C. 360; Macon v. Macon, 75 N.C. 376; and Alexander v.Summey, 66 N.C. 577,) are put on the ground of effectuating a manifest general intent to which certain special dispositions inconsistent therewith must yield, and do not warrant a subversion of the dispositions and appropriations in the will under review; and as was said in Holman v.Price, 84 N.C. 86, "this principle" (subordinating the particular to the predominant intent) "was pressed into service and carried to its extreme limits" in the two first cited cases.

No necessity here exists for a departure from the plain provisions of the will. Slaves are included in all the legacies, and all the legatees share in the loss of this form of property, as well as those whose bequests in money were to be derived from it. The land when sold is given as well to the plaintiffs as to the children of the testator, and no fancied equality intended in the distribution can justify the manifest and obvious dispositions of the estate being disturbed.

The gift over of the proceeds of the sale of the land is to the "children now living" and certainly the intestate son, Jacob G. Mauney, living at the time of the death of his mother, is included, and, notwithstanding his subsequent death, transmitted a vested interest in the fund to his administrator, and the latter is entitled to share with the others therein.

No error. Affirmed.

Cited: Howerton v. Henderson, 88 N.C. 602; University of Borden,132 N.C. 490; Pigford v. Grady, 152 N.C. 181; Litaker v. Stallings,200 N.C. 8.

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