Opinion
(December Term, 1860.)
1. Where an executrix procured an order of court to sell certain slaves, in which she was willed a life-estate, upon a suggestion that such a sale was necessary for the payment of the debts of her testator, and in a short time after the sale she took conveyances from the purchasers, for the same slaves, without ever having been out of possession, it being also made to appear that there were no debts of the estate unpaid at the time of the orders to sell, it was Held, that the executrix took nothing by her purchase, and should be declared a trustee for the remaindermen.
2. Damages assessed against a railroad company, on the condemnation of land to the use of the company, belong to the tenant for life and remainderman, in proportion to the period for which each suffers the incumbrance.
CAUSE removed from the Court of Equity of FRANKLIN.
Thomas Y. Richards, who died in 1831, by his will, devised and bequeathed as follows: "I lend to my sister, Polly Richards, the tract of land whereon I now live, and six negroes, named Sam, Jerry, Amy, Hinton, Lucy and Lavinth, together with my stock of every description, during her lifetime, and after her death, I give to my nephew, John W. Womath, five hundred dollars, to be raised out of the estate, and the balance of which estate I will and bequeath to the bodily heirs of my five sisters, that is, Frances Duke (who is now dead), Martha Bowers, Rebecca Hefflin, Nancy Blacknall and Sally Conyers, to be equally divided among said heirs, with this exception, that I give and bequeath to my nephews Thomas Bowers and Thomas Conyers, one horse apiece, worth seventy-five dollars, more than the rest of said heirs, forever." Polly Richards was appointed the sole executrix in the said will, and she qualified and took upon herself the burden of executing the trusts therein. By a former suit in equity between the plaintiff W. H. Joyner, administrator de bonis non of the estate of Thomas Y. Richards, and the other persons who are parties to this suit, a decree was passed declaring that all the children of the five sisters of the testator, after the death of Polly Richards, and after deducting a legacy of $500 to John Womath, were entitled to have the said property equally divided among them "per capita," with the exception of the two horses to Thomas H. Conyers and Thomas Bowers.
The said Polly Richards entered upon the land on the death of her brother, the testator, and took charge of the slaves and other property. The perishable property was sold by her for payment of debts, and afterwards, under a special order of the County Court, at March (80) Term, 1832, of Franklin County, on a suggestion that a further sale of property was necessary to pay debts, a girl by the name of Lucy (named in said order) was sold to one Archibald Yarborough for $134, and afterwards, another special order of the Court was obtained at March Term, 1834, upon a like suggestion, for the sale of another slave, by the name of Peggy, which slave was sold accordingly to Sarah Conyers, for $130. Both of these negroes remained with the executrix, and possession of them was never demanded of her, nor taken by the purchasers, but each of them, shortly after these sales, formally executed titles to her, the said Polly Richards. Since then she claimed the said slaves as her own up to her death, which took place in 1855.
The plaintiffs, who are the remaindermen, allege that neither of these sales of Lucy or Peggy was demanded by the condition of the estate of Thomas Richards, for that the property first sold by her was sufficient to pay all the debts of the estate, and they charge that such sales were mere devices, concerted with the said Archibald Yarborough and Sarah Conyers, whereby it was agreed that they should respectively bid off the negroes offered for sale, and should each convey the same back to the said Polly Richards, by which devices she attempted to acquire a full estate in the said female slaves, in which before she had only a life interest.
The bill further alleges that the sum of $150 was recovered for damages to the land in question, from the Raleigh and Gaston Railroad Company, the track of said road being located upon a part of the land devised to the said Polly for life, as above stated, and that she received and used the whole amount of said damages, and the plaintiffs insist that they are entitled to a share of that sum, in proportion to the amount of damage done to their estate in remainder.
The bill sets forth that the said Polly Richards cut down and sold timber to the Raleigh Gaston Railroad Company, which was not merely taken off in the necessary course of working the land, but that the timber was cut for the express purpose of being sold, and (81) amounted to waste.
The prayer of the bill is that the said slaves, Lucy and Peggy, and their increase, may be decreed to be delivered up to the plaintiff W. H. Joyner, the administrator de bonis non of Thomas Y. Yarborough, that the same, with the hires of the said slaves since the death of Polly Richards, may be divided among the plaintiffs according to the provisions of the will, and for that purpose, that a sale of the said slaves shall be ordered, and an account of the hires. The bill further prays for a proportionate share of the land damages and a compensation for the damage and waste done to their estate in remainder.
The answers being by persons in their representative characters, do not affect the questions involved.
At December Term, 1859, this Court ordered an account of the estate of Thomas Y. Richards in the hands of his executrix, Polly Richards, to be taken by the Clerk of this Court, and at the present term, Mr. Freeman reported "that on 21 March, 1832, when the girl Lucy was sold, the executrix had assets more than sufficient to pay the debts of her testator, together with all the expenses attending the same, and also that on 8 September, 1834, when the girl Peggy was sold, she had more than sufficient to pay the debts of her testator."
There was replication to the answer and proof taken, and the cause was set down for hearing on the bill, answer, exhibits and former orders, and sent to this Court.
J. J. Davis and W. F. Green, for the plaintiffs.
Eaton, for the defendants.
When this cause was under the consideration of the Court at December Term, 1859, the sale by the executrix, Polly Richards, of the girl slaves, Lucy and Peggy, and the buying them back again in a short time afterwards, was of so suspicious a character, that an account was ordered of the assets of the estate, that we might see whether (82) the sale was necessary to pay the debts. The report of the Clerk, at this term, negatives the supposition that it could have been for the purpose of raising assets to pay debts. The assets in hand were already abundantly sufficient for that purpose. It could have been, therefore, only for the purpose of changing the title. As the executrix was to have a life estate in these girls, with an interest in remainder limited over, she had a motive for desiring to change the estate which she held. No form of a sale without necessity, under the influence of such a motive, could effect her object; the estate remained the same.
The facts of the case, and especially the significant one disclosed by the report of the Clerk, constrain us to hold the sale of both the slaves, Lucy and Peggy, inoperative and void. They and their offspring must be accounted for and surrendered to the administrator de bonis non of Thomas Y. Richards, to be accounted for by him to the persons entitled in remainder.
There must also be an account of the hires of the slaves since the death of Polly Richards.
With respect to the damages recovered by Polly Richards, the tenant for life of the land, from the Raleigh and Gaston Railroad Company, we are of opinion the plaintiffs are also entitled to an account. By the condemnation of the land, under the provisions of the charter of the road, the company acquired an easement in the same for ninety-nine years. The $150 assessed as damages were not assessed, we take it, for the injury done alone to the life estate, but to the estate in remainder also. The persons, therefore, in remainder are entitled to a part of this fund, viz., such an amount of the same as will be proportional to the period of time for which they suffer the incumbrance. This, we mean, is the general rule applicable to cases of this sort. There may be special cases in which other elements will properly enter into the calculation; as, for instance, the special location of the road might affect, materially, the calculation of relative damage. If it ran through the yard of the tenant for life, the rule would not do the tenant full justice, (83) while if it went through a remote woodland, it would do more justice. It is referred to the Clerk to enquire and report to what part of this sum of $150 the persons in remainder are entitled.
It is also alleged that there was a waste of the land by the tenant for life by cutting timber not needed for the estate, but which was cut for market. The Clerk may make enquiry into this matter also, and report results.
PER CURIAM. Decree accordingly.