#### BENJAMIN SAUNDERS AND AL vs. ELIZABETH HAUGHTON AND AL.*

'The increase of the personal property, except in the case of slaves, belongs to the tenaDt for life, as a compensation for the trouble and expense of taking care of the original stock.

©ut it is settled in -our State, that, where such property is of a perishable nature, or may be consumed in the use, it is the duty of the executor to sell it, and pay over the interest only to the tenant for life.

■Where that is not done, but the property itself'is delivered to the tenant for life, the increase, such as of -cattle, etc., belongs to him, and the remainder man is only entitled to the original stock.

The cases of *Smith*v- *Barham,*2 Dev. Eg. 42S, and *Janes v, Simmons, 1*Ire. Eg. -líS, cited and approved.

The case is stated in the opinion delivered here.

*William J. Baker,*for the plaintiff,

submitted the following argument:

*218The legacies-to the six daughters of the-testator, vested1 immediately upon his death, in 1824, and were transmissible-to their representatives,.

“To be immediately divided’ (equally’’)) and a division to take place, upon.the death or marriage of the life-tenant, are-equivalent to the expression, “ payable,” or “ to be paid,” and dis-anpex the rime from the gift of the legacy..

*Hanson*v. *Graham,*6 Yes. 245, *Guyther*v. *Taylor,*3: Ired. Eq. 333.

“ The division of the property, is not annexed to the substance of the legacy, but to the time of enjoyment.”

*Perry's administrator*v. *Rhodes,*2 Murp. 92.

The defendants, in their answers, admit that the legacy to the life tenant was assented to, by the personal represen-tives of the testator (of whom the tenant for life was one), and “submit to the effect thereof, whatever it maybe.”

“ This assent operated also as an assent to the ulterior bequests.” *Howell*v. Howell. 3 Ired.,.Eq. 522, *Hones*v. *Yellicoffer,*N C. Term-, Rep. 213. *Alston*v. *Foster,*1 Dev. Eq. 33?.

The defendants insist, that the tenant for life was entitled to be reimbursed for the expense to which she was subjected, during- her estate, in raising the young- slaves, and that her personal representative is therefore a necessary party to this suit-

The personal representative of the tenant for life, i-t is submitted, is not a necessary party.

The tenant for life, according to the admissions of the defendants, elected to hold these slaves, as “legatee.” She became, thereby, entitled to all profits arising from the property, and answerable for all the burthens incident to it, during the continuance of her estate.

“The intermediate burthen is satisfied fully by the labor of the slaves.’’

“ As to children being an incumbrance on the life-tenant, the legatee is a volunteer.”

*219
      *Tims*v. *Potter,*I Mar. Eep. 22.

The tenant for life is bound to *provide*for, and preserve, the issue (of slaves,) and is consequently allowed to have-the whole profit during the life-estate.

*Jacocks*v. *Bozman,*1 Dev. and Bat. ,195.

The testator, by the foregoing clause of his will, gave to-his wife, his land and plantation, and his negroes and personal estate of every kind, subject to the payment of his debts; and a pecuniary legacy, during her widowhood or life, and at her marriage or death, the personal estate, he directed to be divided equally among his six daughters.

That being the residuary clause of the will, it is submitted that the executrixes of the testator are properly charged' with the value of the original stock of cattle and hogs, or the increase of the same, which remained on hand at the death of the life-tenant: it appearing from the testimony taken in this case, that this property was then worth about the same that it was at the death of the testator.

*Smith*v. *Barham,*2 Dev. Eq. 420. *Jones and others*v. *Simmons, EPr., 7*Ired. Eq. 178i

(1st. clause.) It is my will, that my executrixes sell such, and as much of my éstate, and in that way as they may think best, as will pay my just and lawful debts, and also if they think proper to raise a sum of money sufficient, and purchase a small piece of land adjoiniug mine, part of which I have some time back purchased, and the small piece I allude to, is the balance of the tract, and, when purchased, to be considered as my land, which I shall and do hereafter dispose of as such, with my land and plantation.

The testator, in a subsequent clause of his will, gave to his wife the use of his “ land and plantation” during her life or widowhood, and at her death or marriage, devised it to his son, James L. Pettijohn, subject to the contingencies of the will.

He evidently intended that his executrixes should pur*220chase the small piece of land mentioned by him, shortly after his death, if, in their' discretion, they should think proper to make the purchase at all.

He clothed them with this authority, in the same clause of his will, in which he directed a sale of his property, if necessary for the payment of his debts ; and it is apparent, that he intended they should elect to act under this authority or not, about the time, when, in the course of the settlement of his estate, it might be necessary to raise a fund for the payment of his child.

The executrixes did not “think proper” to make the purchase: twenty-seven years have elapsed since the death of the testator: the legacies under the will have been assented to: and it is submitted that they have now no authority to use the funds which were of the estate of the testator, for that purpose.

*JHeath,*for the defendant

This and the following case were accidentally omitted in the Reports *of*the last term.

Nash, J.

Job Pettijohn died in 1824, and by his will, devised as follows: “ I lend to my wife, Elizabeth Pettijohn, the use of all my negroes and personal estate of every kind, during her natural life.” He then provides, that, if my wife remains a widow, the whole of his estate to remain in joint stock, to her use, during her natural Ufe, and at her death, to be divided equally among his six daughters, to wit: Frances, Sarah, Elizabeth, Rachel, Mary Ann, and Rosanna. To this will, the widow andhis three daughters, Frances, Sarah, and Elizabeth, were appointed executrixes, and qualified as such. The widow ‘took into her possession, all the property bequeathed to her, and died in the year. Rosanna, one of the legatees in remainder, intermarried with the plaintiff, Benjamin Saunders, and died in the life time of the widow, and her husband was duly appointed her administrator. The bill is filed for a division of the *221slaves of the estate, and an account of their hires, since the death of the widow, Elizabeth Pettijohn: and also for an account of the perishable property which came to the hands of the executrixes, under the Avill. An order of reference to the clerk and master, was made, to state the account. His report was returned, and excepted to by the defendants.

The first exception is, that the master has charged against the defendants, three hundred and fifty dollars, the present value of fifty head of cattle and fifty hogs, which, from the evidence, were the offspring of the original stock, which went into the possession of the widow, as tenant for life, twenty.four years ago.

The second and third exceptions, are but corollaries from the first.

It is true, as a general proposition, that a tenant for life, of personal property, is entitled to the increment made during the course of the tenantry, as a compensation for the trouble and expense of taking care of the original stock. And the executor, so far as the legatees are concerned, has discharged his duty when he assents to the legacy. The rule does not, in this State, extend to slaves : and when the property is of such a nature, as to be consumed in the use, *quo ipso usu consumitur,*a different rule of duty devolves upon the executor. In such a case, the tenant for life being entitled only to the use, if it be entirely consumed, the remainder man loses, altogether, the benefit of the bequest. The executor is appointed to take care of the interest of all concerned, and is as much bound to see that the remainder man is not deprived of his interest, as that the tenant for life shall enjoy his. It is now well settled, that when a residue is given for life, of such property, with remainder over, it is the duty of the executor to sell it, and pay over the interest to the tenant for life. *Smith*v. *Barham, 2*Dev. Eq. 425. *Jones et. al.*v *Simmons,*Ex’r., 7 Ire. Eq. 178. *222If, however, the executor assents to the legacy, and the property remains in the hands of the tenant for life, and it be of such a nature as to be consumed in the using, such as cattle, horses, or hogs, and an increase from them takes place, while in the possession of the tenant for life, it belongs to him, and the remainder man is only entitled to what remains of the original stock. From the case before us, the cattle and hogs, valued by the master in his report, was the property of the widow. The master, then, has taken into his account, property which never was of the estate of the testator. It was the original stock he was directed to take an account of.

This exception is allowed, and the report set aside as to the two items excepted to. In all things else, it is confirmed.

Per Curiam. Decree accordingly.