#### JAMES ADAMS, *Ex'tor, against*MARTHA A. JONES AND OTHERS.

The words, *“*wheat and com on hand,” in a will, were *held*to mean that, only, which was in the granaries of the testator at the time of Ms death, and not to embrace the ungathered or standing crop.

The Court will not respond, at the instance of an executor, as to the conflicting interests of two legatees of land; as the executor has *nothing to do*
      *222with the question. The Court also will decline to answer as to a hypothetical case.

Stock in a rail-road company is embraced in the term, *property,*directed by the will to be sold.

A deposit in a bank, is not to be considered as inclnded among *debts*ordered by the will to be *collected*and invested for the benefit of a legatee, especially before a demand and refusal, on the part of the bank, to pay.

Cause removed from the Court of Equity of Wake couuty.

The bill, in this case, was filed by the executor of Austin Jones, to obtain a construction of certain clauses of his will and codicil, and the several legatees were made parties defendants.

In the 8th clause, the testator bequeathed to his widow, Martha A. Jones, “all the wheat on hand — all the corn on hand, also all the bacon and lard on hand.”

At the date of the death of the testator, some of the highland corn was ripe enough to be housed, but the lowland corn, which composed more than three-fourths of his corn crop, was not ripe enough to be gathered. There was on hand, at this date, about 30 barrels of *old corn,*and a much larger quantity at the time of the making of the will.

The question propounded is, whether the ungathered corn passes under this bequest *\*also whether a share of rail-road stock is included in the meaning of the word “ property,” in a clause directing a sale.

The bill states a controversy between the widow and one of the other legatees as to the respective rights of the two in a tract of land, devised in the will, but from the view taken of the question by the Court, it is not necessary to be particularly stated. .

The executor also seeks to be informed, “ when will the liability to make up for the loss of slaves, by death, cease.” No case of the loss of slaves had occurred among the legatees at the filing of the bill.

At the time of the death of the testator, there was to his credit, in a branch of the bank of Cape Pear, $900, for which he had a certificate of deposit. The executor desires to be *223instructed whether this deposit is a *debt*due to the estate - of the testator, and as such, coming within a direction to collect debts and invest the proceeds for the benefit of his minor children, or is to be considered as cash.

*Phillips*and *K. P.*Battle, for the plaintiff.

*Miller,*for the defendants.

Mahly, J.

The bill is filed to obtain a construction of the will of Austin Jones, in certain matters of doubt, and for an account and settlement of the estate.

Taking these matters in the order in which they are brought to the attention of the Court, we are of opinion, in the first place, that by the term, *“*wheat and corn on hand,” is meant that, only, which was in the granaries of the testator at the time of his death. The terms used, are not those commonly resorted to, to designate growing crops or standing grain. The words crop, or growing crop, or standing crop, are those in popular use for such purpose. The force of the expression, “ on hand,” also leads to the conclusion that one, who uses it, has reference only to such things as are capable of present delivery.

In the second place, the Court declines expressing any opinion as to the controversy between the widow and the legatee, Turner, about the eighty acres of land. It is a matter which does not concern the executor in the settlement of the estate. The parties interested must settle it themselves, in such way as they may be advised is necessary and best.

The third enquiry, the Court also declines answering, for the reason, that it is hypothetical. No one of the negroes, given to any of his children, has died, and, therefore, the contingency has not arisen, upon which alone, the construction of the 9th clause of the will can become of any practical utility.

The share of stock in the Ealeigh & Gaston rail-road company is *property,*to be sold under the 11th clause of the will. The word is among the most comprehensive of those in use, *224to signify things which are owned, and subject to be owned and enjoyed.

The deposit of §900 in the Cape Eear Bank, is not embraced, according to our opinion, among the debts which are directed in the 11th clause of the will, to be collected and invested for tho benefit of his children.

*We*deem it unnecessary to discuss or decide, in this connection, the precise legal relations which subsist between a general depositor and a bank. Our duty is to ascertain the meaning of the testator, in the language employed by him in the clause, in question, and the true rale is, to interpret it according to its ordinary acceptation. The common understanding, we think, is, to regard a deposit in the bank as *cash,*(at any rate prior to a demand and refusal) and not as a debt due. In making out a descriptive list of one’s estate, it would be certainly so classed. *We*conclude, therefore, the testator did not intend to embrace the bank deposit by tbo use of such words as “ all the debts due me.”

Let an account conforming to these views be ordered.

Pee CueiaM, Decree accordingly.