#### MARY FIKE *v. J.*M. GREEN, and R. N. & J. M. GREEN, Ex’rs., &c.

“Where the testator (dying in 1863) was debtor, as surety for a principal solvent until the emancipation, and his personal property consisted of seventeen slaves bequeathed to the persons named as executors, which he had before placed in their possession, and which remained there until they were emancipated : *Held,*that a creditor, who did not present her 'claim, but who was unwilling to receive Confederate currency for it, could not charge the executors with laches in not selling such slaves for payment of debts, — even in a case where they had not advertised for creditors to present them claims, as required by statute.

Executors are not chargeable with land as assets.

*(Wadsworth*v. *Davis,*63 N. C., 251; *Finger v. Finger, ante,*183; *Kerns*v. *Wallace, ib.*187, and *Floyd*v. *Herring, ib.*409, approved.)

Exceptions to a report, made in an action of Debt against executors upon a bond given by their testator, tried before Tourgee, J., at Spring Term 1870, of Chatham Court.

Tbe Commissioner, to whom a reference bad been made as to tbe state of tbe assets, reported that tbe testator, at tbe time of bis death, in April 1863, owned no personal estate of any consequence, excepting seventeen slaves bequeathed to bis executors, and which bad previously been placed in their bands; that be also owned land which be devised to bis executors, tbe defendants E. N. and J. M. Green; that, *666besides tbe debt in suit, wbicb be bad contracted as surety of J. M. Green,.be owed only some small debts, wbicb bad. been paid by tbe executors; that J. M. Green was solvent until after tbe emancipation of bis slaves, and that subsequently to tbe death of tbe testator, be bad sold tbe land devised to bim as above.

It appeared that tbe will bad been proved by tbe executors, but that neither of them bad qualified as executor; that no advertisement bad been made for creditors, — that, tbe slaves bad been allowed to remain in tbe bands of tbe legatees until they were emancipated, and that tbe land bad not been sold by tbe executors, to pay debts. It also appeared that tbe executors did not know of tbe existence of tbe debt in question, and that tbe plaintiff said she would not take Confederate currency in payment of it.

Tbe Commissioner refused to charge tbe defendants with either tbe slaves or tbe land; and thereupon tbe plaintiff excepted as to each.

His Honor overruled tbe exceptions, and tbe plaintiff appealed.

*Headen,*and *Phillips & Merrimon,*for tbe appellant.

*Manning, contra.*

Dick, J.

Tbe first exception to tbe report of tbe Eeferee is, that be did not charge tbe executors with tbe value in 1863 of seventeen negroes belonging to tbe estate of tbe' testator. It appears in evidence that tbe testator died in April 1863, leaving no personal property except tbe seventeen negroes mentioned in tbe exception, and they bad been put into tbe possession of bis children sometime before bis death. There were a few small debts against tbe estate, and these were paid off by tbe executors. Tbe testator was surety to tbe debt of tbe plaintiff, and the principal, John *667M. Green was amply solvent until Ms slaves were emancipated. The plaintiff would not present her debt, as she would not receive Confederate money. Under such circumstances, the defendant acted prudently in not selling the negroes for Confederate money, which could not he used to advantage, .and was rapidly ¡[depreciating in value. The subsequent emancipation of the negroes ought not to result in injury to the defendants. This exception was properly overruled by his Honor : *Finger*v. Finger, *ante*193; *Kerns*v. *Wallace, Ib.*189.

The ruling of his Honor as to the second exception, was also correct. The real estate was not assets in the hansd of the executors: *Floyd*v. Herring, *ante*409. Where a will directs real estate to be sold for the payment of debts, .and an executor fails or refuses to execute such trust, he may be compelled to do so by special proceedings properly instituted : *Wadsworth*v. Davis, 63 N. C., 251. The law requires an executor or administrator, where there is a deficiency of personal assets, to obtain a license from Court to sell the real estate of the deceased, and the proceeds of sale, when received, become assets for the payment of debts. If the personal representative neglects this duty, its perform■ance may be enforced by a creditor.

As the land devised to John M. Green was sold within two years from the death of the testator, the alienation is void as to creditors, (Eev. Code, ch. 46, s. 61) and the executors can be compelled to sell it for the payment of the debts of the deceased.

We cannot see from the evidence reported, that the executors have been guilty of any laches which has prejudiced the rights of the plaintiff.

There is no error.

Per, Curiam. Judgment affirmed.