Opinion
(June Term, 1834.)
1. A bequest of "all the notes of hand that will be remaining after paying off all the legacies hereinbefore given, which I suppose will be from twenty to thirty thousand dollars." is specific, and the legacy is to be applied to the payment of the general legacies only in the event of the undisposed of residue being insufficient for their discharge.
2. Dividends upon stock due at the death of the testator do not pass by a bequest of the stock itself.
3. In a will, the words "all my notes" include bonds as well as notes, but not judgments upon either.
4. A legacy by a debtor to his creditor of the same nature with the debt, and of an equal or greater value, is prima facie a payment of it.
5. But the adoption of this rule has been regretted, and there are many circumstances which repel the presumption.
6. As a general direction for the payment of debts, or if the legacy be contingent, or payable after the debt, or be specific or uncertain, or given after the debt is contracted.
7. Especially it is repelled where the debt is contingent.
8. And where at the date of his will the testator was an administrator, and upon his death without settling his administration bound to account with an administrator de bonis non, legacies given by him to the next of kin of his intestate are not payments of their distributive shares.
9. A legacy "in notes to be taken out of my notes and handed over," etc., is not merely a charge for its amount upon the notes of which the testator may be possessed, but is a specific legacy of securities hereafter to be ascertained.
10. But one to be paid as soon as its amount can be collected, or if the "legatee is willing to receive that in good notes he can do so," is a general legacy.
11. So also is a legacy "in notes to be paid as soon after my death." etc., there being nothing to denote that any particular notes were intended.
12. And a subsequent bequest of "all the notes that will be remaining after paying off the legacies hereinbefore given," will not make them specific, because the remainder, being uncertain in amount, indicates that the charge upon them, and not a fractional part of them, was intended.
13. Executors charged with the management of legacies to infants are entitled to commissions upon the profits; but they take them as executors, to be divided according to their several degrees of labor; and upon the death of one who had possession of the fund, the survivor is not entitled to another commission.
14. A gift by will of a note carries with it the interest due on it.
STEPHEN OUTERBRIDGE died in 1824, having made and published his will, which was proved by the plaintiff and by the testator of the defendant Mary, the executors therein appointed. This will was as follows:
Badger for plaintiff.
Winston for the grandchildren.
W.H. Haywood for the executrix of Maxwell and for the next of kin.
"First of all, it is my will and desire that all my just debts be paid. Secondly, I do hereby give and bequeath to my granddaughter, Joseph Ann S. Johnson, formerly Joseph Ann S. Outerbridge, a small tract of land lying, etc.; and I do hereby give and bequeath unto my said granddaughter, Joseph Ann S., $3,917 in notes to be taken out of my notes by my executors hereafter named, and paid over to my said granddaughter, Joseph Ann, as soon after my death as it can conveniently be done. I do further give and bequeath unto my said granddaughter, Joseph Ann S. Johnson, formerly Joseph Ann S. Outerbridge, unto her and her heirs forever, all the furniture, with the clock that was in my house at the time of the death of my wife, to be delivered (489) shortly after my death. I do hereby give and bequeath to my nephew, Stephen Outerbridge, $1,500, to him and his heirs forever, to be paid to him by my executors as soon after my death as they can collect it; but in case my said nephew is willing to receive that amount in good notes, he can do so. If my sister-in-law, Drucilla Outerbridge, formerly wife of my brother Ben, should not get married before my death, I do by these presents give unto her and her heirs forever $350, to assist her in supporting her children, etc.; but if she should get married, as aforesaid, this gift to be void. I do give and bequeath unto my niece Nancy Wherton, formerly Nancy Ballard, $250, to her and her heirs forever. I do give and bequeath unto my niece, Polly Ballard, wife of Silas, $250, to her and her heirs forever; all of which it is my will and desire that my executors shall pay over to my said sister-in-law and my two nieces as soon after my death as they can collect the money.
"Whereas, I have 50 shares in the State Bank of North Carolina, 19 shares in the Bank of Cape Fear, and 7 shares in the New Bern Bank, making 76 shares in all: It is therefore my will and desire that my daughter, Sally M. Fenner, shall have the profits arising therefrom during her natural life or until the charters of said banks may expire. I do therefore by these presents leave the said 76 shares on trust with my executors, or either of them, and I do hereby authorize and empower them or either of them to take charge of said bank stock and to draw the dividends as they shall become due and payable; and the said dividends when drawn by my said executors or either of them shall be paid over to my said daughter, Sally M. Fenner, for her own use and comfort. Whenever the charters of the said banks shall expire (if they should not be again renewed), I do then give and bequeath the said 76 shares of bank stock, which cost me $7,600, to my said daughter, Sally M. Fenner, to her and her heirs forever. I do further (490) give and bequeath unto my said daughter, Sally M. Fenner, $12,400 in notes, to be paid to her by my executors as soon after my death as it can be conveniently done; that, with the bank stock, will make the sum of $20,000. I further give and bequeath unto my daughter, Sally M. Fenner, to her and her heirs forever, the following negro slaves, viz., Charles, etc. I do further give unto my said daughter, Sally M. Fenner, and to her and her heirs forever, the tract of land and the improvement and appurtenances whereon I now live. I do further give unto my said daughter, Sally M. Fenner, to her and her heirs forever, all my stock of horses, cattle, sheep and hogs, my carriages and harness, saddles and bridles, with all the furniture that was in the house where Dr. Richard H. Fenner, deceased, formerly lived, with the piano and clock, except one bed and a few other articles that did belong to said Fenner, and has been sold as his property; all of which I do give and bequeath to my said daughter, Sally M. Fenner, to her and her heirs forever. And I do also give and bequeath to my said daughter, Sally M. Fenner, my wagon and ox-cart or carts, with all my plantation utensils, blacksmith's tools, all my kitchen furniture, and also all the corn, fodder, wheat, oats, rye, cotton, etc., that may be on hand at the time of my death; and should there be a crop pitched or growing at the time of my death, it is my will and desire that the people should carry it on in the same manner as they did before my death, and all that is made I do give to my said daughter, to her and her heirs forever.
"I do now give and bequeath to my four grandchildren, who are the children of my said daughter, Sally M. Fenner, namely, Eugenia Ann, Richard Joseph, Catherine Reavil, and Stephen Outerbridge, to them and their heirs forever, all the notes on hand that will be remaining after paying off all the legacies hereinbefore given and bequeathed, which I suppose will be about from $20,000 to $30,000 worth; (491) all of which notes so remaining I do fully and freely give and bequeath to my said grandchildren, to them and their heirs forever. It is my will and desire that my said executors take into their possession the said notes left as aforesaid for the use of said children, and keep them at an interest all together, that is, not to have them divided, until the oldest child becomes of lawful age or marries; then, whatever loss may be on said notes, each of the children will have to bear their equal part. If my executors should at any time think any of the children's notes to be doubtful, I hope they will bing [bring] suit on such, and if negro property has to be sold in any case to make payment, I do hereby authorize and empower my said executors to purchase young negroes, at a price that they think will answer, and then hire out what negroes they may purchase. I do hereby further give and bequeath unto my said grandchildren, Eugenia Ann, Richard Joseph, Catharine Reavil, and Stephen Outerbridge, to them and their heirs forever, the following negroes, viz., Eady, Nott, etc.
"In witness whereof I have hereunto set my hand and seal this 2 October, 1824."
The plaintiff in his bill stated that the whole trust had, during the life of his coexecutor Maxwell, been managed by the latter; that he had recently died, having appointed his widow, the defendant Mary, his executrix. That upon an attempt to settle the accounts of the trust fund with the defendant Mary, the plaintiff had met with difficulties which rendered it prudent that the settlement should take place under an order of the court of equity.
In specifying these difficulties, the plaintiff stated that at the death of the testator there was to his credit on the books of the State Bank $1,354.55, which consisted of dividends upon his stock, which he had been received by him and transferred to his individual account. Besides which there was standing on the dividend book of the same bank (492) the sum of $800, dividends upon the same stock, which he had never given a receipt for, and transferred to his individual account; that the dividends upon the stock held by him in the banks of New Bern and Cape Fear were in the same situation, in the former to the amount of $228, and in the latter to that of $56; that these several sums, being the dividends upon the stock bequeathed to Sally Fenner, the daughter of the testator, his coexecutor, thinking her to be entitled to them as incidents to the principal legacy, had paid them to her, and the defendant Mary claimed them as credits to her testator, which the plaintiff was advised it would be improper for him to allow.
The plaintiff then charged that at the death of the testator he had recovered a judgment against one Benjamin F. Hawkins and others, upon a note for $2,600, which was collected by his coexecutor; that it was contended by the next of kin of the testator (Johnson and wife, and Jasper, who had married Sally Fenner, the daughter of the testator, and who were parties) that there being no general residuary clause, this sum constituted a part of the undisposed of residue, and was to be distributed according to the statute. But that it was claimed by the infant grandchildren of the testator as being included in the legacy to them; and if not, then that it formed a proper fund for the payment, in the first instance, of several of the smaller legacies given to the collateral relations of the testator; while, on the other hand, the next of kin contended that these legacies were a charge upon the notes of the testator bequeathed to his grandchildren. The same question also existed as to the disposition to be made of the general residue of the estate.
Another difficulty arose from the fact that the testator, a short time before his death, had taken out letters of administration upon the estate of Richard Fenner, the husband of his daughter Sally, and the father of the four infant legatees, and at the September County Court of Franklin, before the date of his will, had returned an account of sales whereby he charged himself with $1,404, which had been paid by Maxwell to the next of kin of the intestate as a debt due them (493) by the testator. But the next of kin of the latter disputed this payment, alleging that it was a debt due by the testator to his daughter and her children, and was discharged by the large legacy left them.
The plaintiff then charged that Maxwell had at March Term, 1827, returned an account of his administration to the County Court of Franklin, in which, after paying sundry debts and legacies, and retaining the sum of $968.76 for his commissions, he had charged himself with $54,785.74, being the residue of the testator's notes, of which $8,155 was interest. And that at March Term, 1830, of the same court he had returned another account in which, after crediting himself with sundry other debts paid, and retaining $495.74 for his commissions, he has charged himself in favor of the infant legatees with $62,264.46, of which $7,478 was interest which had accrued since the return of the first amount. The plaintiff stated that Maxwell had in the management of the fund in his hands performed the duties of guardian to the grandchildren of the testator, and that the above charges of commissions included his compensation for those services; and the plaintiff prayed the court to declare whether Maxwell and himself were testamentary guardians of those children, and whether the above-mentioned charges of commissions were correct. Connected with this subject, the plaintiff averred that Maxwell had, upon the idea of his being the guardian of the infant legatees, dealt with the notes and bonds bequeathed them as guardians, renewing them and compounding the interest so as to affect them with usury, as the plaintiff feared, in case it should turn out that he was not clothed with the powers of a guardian; and that the defendant Mary insisted upon her right to discharge the above-mentioned balance of $62,264.46 by surrendering to the plaintiff the specific bonds or notes, which the latter admitted he was willing to receive, if they had not been affected with usury by the acts of her testator; and upon this point the opinion of the Court was prayed.
Several minor points were made in the bill and at the bar. (494) The facts upon which they arose need not be particularly stated, as they appear upon the opinion of the Court.
While the cause pended in the court below, Mrs. Maxwell procured an order to be made whereby the notes and bonds in her hands were placed in the master's office, and he was appointed a receiver to collect such of them as the plaintiff might direct. There was no dispute upon the facts, the answers being drafted merely to raise the questions upon which the parties differed.
The bill is filed by the surviving executor of the will of S. Outerbridge, against the next of kin and some of the legatees of the testator and against the executrix of J. Maxwell, deceased, who was also one of the executors of Outerbridge. The object of it is to have the construction of the will in several particulars settled and also to be directed as to the principles upon which the complainant shall settle with the representatives of his former coexecutor, who in his lifetime transacted most of the business of the estate, and at the time of his death had in his hands upwards of $60,000 belonging to it. It is a proper bill, as the points are all of them of some consequence to those interested, and some of them of sufficient difficulty to authorize the plaintiff to ask the advice of the Court.
The will is exhibited and has no general residuary clause. The testator, nevertheless, left a considerable undisposed residue, as some of the parties contend, to be divided amongst his next of kin, and, as others contend, to be applied in satisfaction of pecuniary legacies, while questions are also made whether certain parts of the property are specifically disposed of, or fall into the residue.
(495) The testator by his will gave to his daughter, Sarah M. Fenner, 50 shares of stock in the State Bank, 19 in the Bank of Cape Fear, and 7 in the Bank of New Bern, all of which he owned at the date of his will and of his death, on which he directs his executors to receive the dividends during the continuance of the charter and pay them to his daughter, and if the charters should not be renewed, then to transfer the shares to her. At his death dividends had been declared on the Cape Fear Bank stock to the amount of $228, which had not been paid to him, but stood to his credit in the dividend book of the bank; this was also the case in the Bank of New Bern, to the amount of $56, and in the State Bank to the amount of $800. Besides that sum thus declared, in the State Bank, and standing on the dividend book, the sum of $1,354.55, which had been before declared as dividends of that stock, had been transferred by the testator to his personal credit on the individual ledger as a deposit. Those sums were received by Mr. Maxwell, and under the idea that they passed with the stock bequeathed to Mrs. Fenner, he paid the same (in the whole, $2,438.55) to her. One of the questions between the parties is, whether these sums did so pass, or are undisposed of.
It is very clear that the stock did not carry any part of the dividends in either bank. As to the sum of $1,354.55, that was no longer a dividend. It had been received and deposited again as cash, subject to the testator's check in the common course of business. The remaining sums were not precisely in that state, but they had been severed from the stock by being declared. They were not profits accruing, but had accrued, and no more would pass then as a part of the stock than a crop made on land and gathered would by a devise of the land. Upon a transfer of the stock to a purchaser, dividends declared do not follow, unless bargained for, and then the purchaser gets them in the name of his vendor. But the particular words of this will positively exclude the idea, for the executors are directed to receive the dividends as they shall become due, and payable for Mrs. F. These sums were therefore improperly paid to her under a mistake, and she must account for them; (496) and, in the event of her inability to do so, Mr. Maxwell's estate will be obliged to make them good to the persons entitled to the benefit of the residue in the settlement of the estate.
At the death of the testator, he had obtained judgment on a bond given to him by B. T. Hawkins, which remained unpaid, and was inventoried by the executors, for the sum of $2,504.12, due at July, 1820. It was received by Mr. Maxwell, and retained by him as part of the legacy to the testator's four grandchildren, Eugenia, Richard, Calhoun, Stephen, to whom he bequeathed "all his notes of hand." The claim to it is now made for the grandchildren, while the next of kin insist that it is not included in their legacy, but is undisposed of. Of this latter opinion is the Court. Notes of hand may well include promissory notes, properly speaking, single bills and bonds. It is a name given generally by the unlearned, in common, to all those evidences of debts which are verified under the hand of the debtor, and which the creditor keeps. It is not an apt legal term to describe a debt by judgment; nor is it ever used in that sense as its popular one. This debt, therefore, falls into the residuum, and is to be accounted for as such.
The questions of the most importance to the parties, and of the greatest legal difficulty, relate to the disposition to be made of this residue. The testator's next of kin are Mrs. Fenner and Mrs. Johnston. To the latter he gives a legacy of $3,917, "in notes, to be taken out of my notes by my executors and paid over to her as soon after my death as it can conveniently be done." To a nephew, Stephen Outerbridge, he bequeathed $1,500 "to be paid as soon as the executors could collect it, but if he should choose to receive the amount in good notes, he can do so." Then follow a conditional legacy of $350 to his brother's widow, Drucilla, and a legacy of $250 to his niece Polly, which he directs the executors to pay to them as soon as they can collect the money. The next legacy is to the daughter, Mrs. Fenner, of the bank stock, which, he remarks, cost him $7,600. He adds, "I do further give to my said daughter (497) $12,400 in notes, to be paid to her by my executors as soon after my death as it can be conveniently done; that with the bank stock will make the sum of $20,000." In the same clause he proceeds to devise to her lands and bequeaths a number of slaves by name. He adds, "I further give to my said daughter all my stock of horses, cattle, sheep, hogs, with all the furniture at a particular house, and also my wagons, carts, with all my plantation tools, all my kitchen furniture, and the crops of corn," etc.
The next clause contains the disposition to the children of his daughter, Mrs. Fenner. It is: "I do give and bequeath to my four grandchildren, namely, E., R., C., and S., all the notes of hand that will be remaining after paying off all the legacies hereinbefore given, which I suppose will be about from twenty to thirty thousand dollars worth; all of which notes so remaining I do fully and freely give to my said grandchildren. And I desire my executors to take into their possession said notes, left for the use of my grandchildren, and keep them on interest all together, that is, not to have them divided until the oldest child becomes of age or marries; that whatever loss may be on said notes may fall equally on all." He then gives authority to the executors to take negroes for such of those debts as they might deem it necessary to call in, and hire them out for the children; to whom he adds a legacy of a number of slaves by name.
A short time before the making of the testator's will he administered on the estate of Richard Fenner, the late husband of his daughter and the father of the four grandchildren to whom the foregoing legacies are given, and was indebted to them for their distributive shares in a sum which amounted to $1,404.22, in 1828, when it was paid. It is contended for the next of kin that those debts were satisfied by the legacies, and are not payable out of the residue. That all the legacies of the will are specific or expressly charged on the notes after the payment thereout of all the previous legacies, and, by consequence, that the residue is only chargeable with the other debts of his testator, and after satisfying them is to be distributed by law among the next of kin.
(498) It is extremely probable from the large sum due to the testator, upon bonds and notes, and his habits, as to be collected from his language throughout the will, of keeping his moneys at interest, that he contemplated on having very little of his substance in cash, and that he expected all his legacies to be paid either in securities or in money to be collected on them, after his death. If this be true, he meant the disposition in favor of his grandchildren as it has been understood by the executors, as a residuary clause. That is, he thought it would in fact pass all that such a clause would in law pass. But he has not so framed his will as to allow the Court latitude to adopt that construction.
The several questions made are therefore to be decided upon the particular terms of the several bequests.
It is true that if one be indebted and give to the creditor a legacy of the same nature with the debt of a greater or equal value, it is, under circumstances, taken to be a satisfaction. The rule is an old one, and cannot now be denied. It was adopted on the idea that it was the intention of the testator to pay the debt by the legacy; for certainly, like all other questions upon wills, the construction must be according to the intention. Hence many of the chancellors have regretted the decision, and denied that it accorded with the intention, because there is no reason why a testator may not mean to give a bounty to one whom he owes, and also pay a debt to one for whom he feels kindness enough to make him a legatee. None have, however, ventured to decide against the rule, when the case fell clearly within it; as if the debt be for a certain sum of money, and the legacy, if an equal or larger sum of money, simpliciter, that is, payable unconditionally and immediately, or when the debt would be due. But regarding the intention to which the rule was formed as being but equivocal, any, the least circumstance, indicative of a contrary intention, or not consistent in point of justice with an intention of satisfaction, has been laid hold of to take a case out of the rule. The exceptions are now as well (499) established as the original principle; so that that principle itself cannot be as properly stated in any way as by modifying it at once by the enumerations of the circumstances which control it; and numerous authorities were cited at the bar on each side, which it is unnecessary to notice particularly. They are collected and collated by Mr. Roper (2 leg. 38 et seq.) where the several distinctions are clearly explained, and the whole doctrine is very fully stated in Strong v. Williams, 12 Mass. 391. It is now understood that express direction in the will for the payment of debts requires the debt as well as the legacy to be paid, because the testator says that it is his intention. Both are also to be paid when either is contingent and the other not; when they are payable at different times, the legacy, though larger, being at the later day; when the debt and legacy are of different natures, as if the former be for a sum of money, and the latter be of specific things which may be destroyed, and thus the legacy lost; when the debt is contracted subsequently to the making of the will; or when the amount of the legacy is uncertain, and given as being uncertain. The rule itself ought to be now laid in these restricted terms. It may be said that a legacy is intended as a satisfaction of a debt in some cases, but in those above-mentioned it is not so intended.
To apply these principles to the question whether the testator intended that the distributive shares of his daughter and grandchildren should not be paid to them. In relation to the grandchildren, the point is clear, upon many grounds. In the first place, the legacy throughout to them is specific, consisting of slaves nominatim, and all the notes of hand that will be remaining, etc. If the testator had called in all his debts on bond and note it would have been an adoption of the legacy. The question is not what he might possibly have intended, if he had known the case that happened to exist at his death; but what is to be inferred from the will was his intention when he made it. It was (500) altogether uncertain what notes he would then have, and the legacy, being specific, depended for its value and effect on that circumstance. So of the gift of a residue, because a residue is necessarily contingent, and may be altogether exhausted. This legacy is not only specific, but is residuary. It is not, it is held, the gift of a general residue, but the remaining part of the notes after the payment of other legacies. Confining it to the notes makes it specific, that is, a gift of the corpus, and the words following, "that may be remaining," constitute it a gift of them as a special residue. This also renders it uncertain, not because it might, as a general residue, be diminished by debts, but because the whole amount of notes specifically on hand might not be more than adequate to the payment of the legacies before charged on them. The testator says the amount was problematical, and might be $10,000, more or less. His estimate turned out to be nearly $30,000 too little, but it might have been as much too high. Again this legacy is not payable until twenty-one, or marriage, and the children were young; whereas the debt, if anything was due, immediately, or would be so in two years. For these reasons the Court entertains the opinion that the grandchildren were entitled to their legacy and also to their distributive shares.
There are other reasons sufficient to authorize the same conclusions, which are equally applicable to the case of the grandchildren and that of their mother, supposing her legacy of $12,400 to be a general pecuniary one. The testator, in the beginning of his will, expressly directs "all his just debts to be paid." Such a direction has been relied on as decisive that there was no intention that what was called by the testator himself a gift should be a payment. In some of the cases the direction has been for payment of debts and legacies; but the debts is the material word, because giving the legacies imports that they are to be paid without a further special order, and in a late case, Adams v. Lavender, 1 M'Clel Y. Exch., 41, the direction was confined, as here, to the debts, and held not a satisfaction. There is another circumstance which is very (501) strong with me. The testator returned his account of sales of Fenner's estate to September county court, and made his will the second day of October following. The debt due to the distributees must have been altogether contingent in his mind; for there must be strong reasons to expect that every dead man is indebted more or less, and it was probable his intestate might owe the whole value of the small part of his estate which he sold. Besides, the testator could not contemplate these shares as debts due from him when he made the will. He had not settled the estate or rendered any account to the next of kin. Upon his death, before any account thus ascertaining the estate, debts or distributive shares, he must have known that he would be accountable to the administrator de bonis non of his intestate, and not to his next of kin. Not only was the amount of the debt contingent, but its existence as one owing by the testator to these legatees was also contingent. In the event on which the legacy could alone operate a satisfaction, namely, the testator's death, he must know that in case he had not accounted the legatees would have no demand which they could enforce without a new administration. And there is no just ground for supposing that it was meant by the testator that the gifts of this will should be taken in discharge of what might turn out on a remote settlement with an administrator de bonis non to be the respective interests of the legatees in that fund. Unless the will contain something to show the contrary, it is not to be presumed that the testator considered himself debtor to the next of kin for that estate at all, but only accountable for it to such persons, including them, as might have demands against it while unsettled, or in it when closed.
The opinion of the Court is therefore declared to be that the legacies to Mrs. Fenner and to the children are not to be taken to be in satisfaction of any moneys which it happened, at the death of the testator or afterwards, they had a right to demand in respect of their distributive shares of the estate of Richard Fenner, deceased, but (502) that the said legatees have a right to the said legacies and also to retain the money received by them on account of those distributive shares.
The next questions are upon the nature of the legacies to the other persons, besides the grandchildren, upon which depends the fund out of which they are payable, that is, whether out of the residue generally or out of the notes as specifically given.
It is our opinion that the legacy to Mrs. Johnston is specific. The gift is, indeed, not of a particular thing set apart as one individual corpus by the testator, but it is of that nature. It is not absolutely a general legacy, so as to abate with mere pecuniary legacies, payable out of the residue. It is charged on a particular part of the estate, and therefore is not to fail while that fund is sufficient to satisfy it. It is by the words not merely charged on that fund, but is to be paid, not in money to be raised from the fund, but in the securities themselves which the testator might leave in specie at his death; and, if no such securities had been left, it must have failed. It is a legacy to a certain value "in notes, to be taken out of my notes as soon after my death as it can be done" — thus marking the very thing given. It is not marked so that but one single thing of that kind owned by the testator would be within the description. But it is so marked that nothing of the same kind, not owned in specie by the testator at his death, would satisfy it — nothing but "my notes." By which he denotes the whole of the very things, and then gives part of those particular and additional things to the legatee.
Upon this difference between the terms in which this legacy is given and in which the others are expressed arises the material dispute between the parties; for, if the other legacies are general legacies, they are payable out of the residue, and will exhaust it and thereby leave a larger amount of notes for the grandchildren; but if specific, then they must be paid from and in the notes, and the residue will belong to the next of kin.
The leaning of the courts is against construing doubtful terms into a specific gift, because the gift is lost upon the failure of the fund from any cause, and also because it is not subject to the equitable (503) principle of equality by abatement. It must be clear, therefore, upon the will, that nothing is meant but a particular thing, or a part of a particular thing, existing in specie at the making of the will, or when it is to take effect. If the words will be satisfied by anything of the same kind not owned by the testator, the legacy is general. The difference may be illustrated by the common case of a contract to sell and deliver goods of a common kind, say one hundred barrels of corn, upon which the remedy is by action for damages for not delivering, and a contract to sell a certain hundred barrels, as a distinct parcel in a crib, which vests the property and gives trover or detinue upon refusal to deliver.
The legacies to the brother's widow and the niece are purely pecuniary, and without reference to any funds, but are payable as soon as money from any source can be collected.
That to the nephew, Stephen, is given in the same way, except that the testator adds, "that if he is willing to receive that amount in good notes, he can do so." It is to be recollected that the rule is that it must be manifest upon the whole will that nothing but a gift in specie was intended. I have no doubt in my own mind that this testator expected his nephew to receive either a part of the very securities left by him or that the $1,500 would be raised out of those very securities. But he has not given the legacy in that way, or tied it up by his words to any such contingency. It is left with the nephew to take the money, and, therefore, upon the failure of notes he would yet be entitled to the legacy. Moreover, although he certainly anticipated that if paid in notes they would be selected out of those left by him, yet he has not said so, and therefore the legatee would not be confined to them. Sibley v. Perry, 7 Ves., 523, is a forcible illustration of the principle which governs the construction of this clause. That was a direction to the executor, within three months after the testator's death, to transfer £ 1,000 stock, in the funds styled the three per cents consolidated annuities, to (504) several persons. The testator then had the funds of that kind, from which and the particular words transfer and in the, the inference to the apprehension of every individual understanding is that he had in his mind that very stock. Yet Lord Eldon held that upon the general rule it was a general legacy, because the testator had not in the will appropriated the particular stock, as his stock, or by other means which would show that no other stock held by him would do.
This reasoning goes also to the same conclusion as to the nature of the legacy of $42,400 to Mrs. Fenner. There is no election, indeed, given to her to take money or notes to the value, but she is to be paid in notes at all events. But the testator does not say in his notes. It may be admitted that he expected her to be so paid; that the executors would offer them, and that she would accept them, and that he was morally certain of leaving such. But she is not restricted to them; and if there had not been notes, there can be but little doubt, if the testator had admitted the thought of that event, he would not have considered, that thereby his daughter should lose her legacy. The words are, "in notes, to be paid by my executors as soon after my decease as it can conveniently be done" — which falls almost literally within Sibley v. Perry. This is the stronger here, because the testator had just before given a similar general legacy to his nephew, accompanied by other words, which clearly decide that he did not, in that instance, intend to give by those a specific legacy; and because in the legacy to Mrs. Johnston, and in that of the money, furniture, stock, wagons, etc., to Mrs. Fenner, he evinces a knowledge of the proper methods of making a specific legacy where he meant one, by the use of the possessive pronoun, my, to identify the fund. Upon the words of the bequest to these several persons, therefore, it seems, upon authority, the legacies are general, and not specific.
It is, however, argued that the doubts upon those clauses as expressed are removed by the manner in which the gift to the grandchildren is made. That is clearly specific, and is of the notes "that will be remaining after paying off all the legacies hereinbefore given, which I suppose will be from $20,000 to $30,000." The words, (505) "remaining after paying off all the legacies," are considered as referring the previous legacies so directly to the particular fund of which the remnant is thus specifically given as to make those previous legacies consist of specific portions of the fund itself. Certainly, different fractions of the same corpus all will be specific. It is also true that the general terms used in the prior gifts may be controlled and rendered specific in the disposition of each part by such a reference in the gift of every one of the parts as will show an intention that each legacy was so much of the identical thing. As in Sleigh v. Thorington, 2 Ves., 561, where the testatrix gave £ 2,413 of South Sea stock, or annuities in different proportions to several persons, and then gave to A. "the remaining £ 13.13 South Sea stock," and it was held that the legacies were specific by force of the words in the last gift, and that the deficiency could not be made up out of the general assets. The last words referred plainly to stock then standing in her name, that is, at the making of the will, as was evident from the exact balance, £ 13.13, being computed. That computation was incorrect; nevertheless, the making a computation so as to exhibit a balance, true or false, showed that she was only giving away that which then existed, or which she thought then existed; and as the last was of that character, the previous dispositions of parts of the stock meant parts of that identical stock. The whole force of the argument in that case rested upon the residue being stated as the exact residue of certain stock then held by her. It can have no application to a case where the residue given is of the things of that sort which the testator might have in specie at his death, which must be altogether uncertain; nor to one in which the testator shows in the will that he had made no computation, and that the residue given specifically may be more or less, according as it may be necessary to resort to it for the satisfaction of the prior (506) claims of the legatees. Here the remainder is not given as a certain one, but expressly as being altogether uncertain. Besides the specific legacy of $3,917, part of the notes, the other money legacies before that to the grandchildren amounted to $14,500. The giving over the residue of the notes, as being uncertain in amount, is demonstrative that the testator could not have considered that he had given away absolutely and definitely, as parts of the notes then held by him, that sum of $14,500, because in that case the residue must have been certain, and could not have varied from twenty to thirty thousand. That variation could only arise by the general assets failing to a greater or less extent to meet those bequests, and thereby throwing them on the other fund for the various differences.
The true sense, we think, is that the prior legacies are not of fractional parts of the things of which the residue is given to the grandchildren, but is a charge on the fund. The reasons which lead to this conclusion produce the further one, that the charge is not specific and primary on that fund, but only that they are to be made good at all events. For the reason why that fund was uncertain was that these legacies, certain in their amounts, might require portions of it, larger or smaller, as the other parts of the estate primarily applicable to them should prove sufficient or insufficient.
We therefore declare it as our opinion that the debt of Hawkins and the dividends and moneys in the bank constitute the undisposed residuum; that all the legacies, except those to Mrs. Johnston and the grandchildren, are general pecuniary legacies, to be paid out of the residuum in the first instance, and, that proving inadequate, then out of the legacies to the grandchildren. Consequently, as Mr. Maxwell has applied notes to the value of $2,438.55, belonging to the children, to pay the legacy of Mrs. Fenner, for which he had that sum in hand, of the residue, in the moneys received from the banks, his estate must make that sum good to them, unless it can be collected again from Mrs. Fenner.
As to compensation to the executors, and the principle on which it must be allowed, we are of opinion that they are to receive it as executors. It is not necessarily incidental to the office of an executor to take the management of legacies to infants, but it is incidental (507) to the office to have such duties assigned. It is the common case of a trust to the executors of a fund to accumulate. They take virtue officii, and hence by renouncing the office the trusts will be executed by others, without an assignment from the executors. The executors jointly fill the office, and the duty survives to the complainant.
Both are, therefore, together entitled to the commission given by law. Upon such an estate to be thus managed through a course of years the highest commission is not more than an adequate remuneration for the labor and responsibility, if the trust be faithfully executed. Thus far there has certainly been perfect good faith, and the executors are entitled to claim at once a reasonable proportion of the commissions. In what proportions it shall be divided, as between the executors themselves, it is impossible for the Court to say without directing an inquiry as to the actual past labor and risk performed by each, and that which will probably be incumbent, for the future, on the survivor. If the parties should be unable to settle it to their own satisfaction, such an inquiry will be directed at the instance of either. But the Court cannot allow full and double commissions in a case of this sort, when the executors as coexecutors took, and upon the death of one, the other, by his old office, acts exclusively. He gets no power by the other's death, but only loses his aid.
Certain other points are raised in the answers of some of the defendants. One is, whether the interest accrued on the debts due on bonds and notes in the lifetime of the testator passed to the grandchildren? On this we have no doubt. The interest had not been severed, as the dividends on the stock had. The corpora, the notes themselves, are given, and all passes that would pass by an endorsement, and there can be no question that the assignee of a note past due is entitled to the interest as well as the principal due at the time of the endorsement.
Another is, whether Mr. Maxwell's estate is responsible for the (508) debt of Robert H. Jones, who has become insolvent. The debt was contracted with the testator himself, when the debtor was in fact greatly embarrassed and probably insolvent; but, notwithstanding, in such good credit that no security was required but his own bond. His credit continued good up until the time of his declared bankruptcy, and in the meantime he renewed the bond and paid the interest punctually. It is to be recollected that one part of the trust was to keep the fund at interest. There are, therefore, no losses in not in not collecting. The only ground on which it can be imputed is in not increasing the security. Good faith is required from the executor and circumstances to prove that he acted in good faith. This case is fully established by the debtor's conduct and character, and the course of dealing with him by the testator himself, and by the discretion given by the will to the executors, as to calling in moneys from those who were debtors at the testator's death. We declare, therefore, that the complainant must receive the bond of Jones a part of the funds of the children.
An opinion upon the effect of compounding interest and including it in bonds taken to renew others is rendered unnecessary, as we are given to understand that, pending this suit, all the debts upon which any difficulty would probably be made on that ground have been paid into the hands of Mr. Johnson, the receiver. We barely intimate that although more troublesome, it would be safest to require payment of the interest annually and to reinvest it; and that the executor should also clothe himself formally with the office of guardian.
All the parties must pay their own costs, except the complainant, whose costs must be paid out of the fund, and the defendant Mary Maxwell, whose costs, up to this time, must also be paid out of the fund in Court.
PER CURIAM. Order accordingly.
Cited: Johnson v. Johnson, 38 N.C. 428; Stultz v. Kizer, 37 N.C. 540; Stocks v. Cannon, 139 N.C. 64; Battle v. Lewis, 148 N.C. 151; Pigford v. Grady, 152 N.C. 181.
(509)