#### ELIZABETH A. SMITH *v.*JOHN E. and JANE S. GILMER.

Land having been devised charged with°the payment of a sum of money to a minor, the devisee also being appointed guardian of the minor *Held,*that the fact that the guardian *charged himself*with such money in his returns to Court, was no discharge of the lands.

In such case the widow of the devisee, before she can be called on to contribute, is entitled (in aid of dower) to have the whole of the personal estate of the deceased, and, after that, all of his real estate not included in her dower interest, applied to the discharge of the debt.

*(Doe*v. *Woods,*Bus. 290; *Thompson*v. *Thompson,*1 Jon. *483;*and *Caroon v. Cowper,*63 N. C. 386, approved.)

Dower, tried before Tourgee, <■/., at Fall Term 1869 of Guilford Court.

Tbe land sought to be subjected to dower was three tracts, viz: The McMurry tract, the Chrisman tract, and a tract of some 756 acres acquired by the deceased, W. E. Smith, under the will of his father, Eli Smith. No question was. raised in regard to the liability of the the two former tracts. The questions as to the latter were, as to the extent to which they were charged with pecuniary legacies' left to various persons in the will of Eli Smith. William E, Smith died in 1868, and Eh Smith, in 1862.

The portions of the will of Eli Smith which it is necessary to state in this connection, are:

“1st. I give and devise to my granddaughter, Jane S. Gilmer, and the heirs of her body, $2,500.00, to be held in trust by her guardian,” with certain directions for its investment, and also contingent bequests in case of her death, &c.

“2nd. I devise and give to my grandson, John E. Gilmer, $2,500.00 in money, to be paid to him by his guardian when he becomes 21 years of age,” with other directions as above..

4th. A similar legacy to his grandson Wm. M. Gilmer.

“6th. I also give and devise to my son Wm. E. Smith, all *547.and every parcel of the lands, whatsoever and wheresoever, I .may die in possession of, upon the condition that the said Wm. E. Smith pay over to my grandson, Wm. M. Gilmer, the sum of $1,500, over and above the legacy hereinbefore specified for said grandson, &c. Also, all the rest, residue and remainder of all my estate, real and personal, &c., &c., .1 do give, devise and bequeath unto my said son Wm. E. Smith, and his lawful heirs,” &c.

William M. Gilmer died in 1864, having attained full age, .and the defendant John was appointed his administrator, both of the defendants being his heirs and next of kin.

The defendants claimed that the land was charged with the payment of all the above legacies in the event which occurred, to-wit: the loss of the personalty by the events ■of the war. The plaintiff, whilst contesting this, on the other hand claimed, amongst other things, that the land had been discharged from the $1,500 due to W. M. Gilmer, by the fact that Wm. E. Smith, who was appointed his. guardian by the will, had made his return as such to Court, *charging himself*with said sum, as money received by him for said ward.

His Honor gave judgment for dower as prayed for in the ‘.in the petition; and the defendants appealed.

*Bragg, Mendenhall*and *J. I. Scales,*for the appellants.

*Scott & Scott, contra.*

Settle, J.

We are of opinion that none of the legacies in the will of Eli Smith are a charge upon the land devised to William E. Smith, except the legacy of $1,500 to William M. Gilmer, contained in the 6th item of the will. This is clearly a charge upon the land, and the devisee took the -same *cum onere,*immediately upon the death of the testator: *Doe*v. *Woods,*Bus. 290.

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