#### WILLIAM H. JOYNER, *Adm’r.,*AND OTHERS *against*THOMAS H. CONYERS, *Adm’r.,*AND OTHERS.

Where an executrix procured an order of court to sell certain slaves, in which she was willed a life estate, upon a suggestion that such sale was necessary for the payment of the debts of her testator, and in a short time after the sale she took conveyances from the purchasers, for the same slaves, without ever having been out of possession, it being also made to appear that there were no debts of the estate unpaid at the time of the orders to sell, it was *held*
      *79that the executrix took nothing by her purchase, and should be declared a trustee for the remaindermen.

Damages assessed against a railroad company, on the condemnation of land to the use oí the company, belong to the tenant for life and remainder-man, in proportion to the period for which each suffers the incumbrance.

Cause removed from the Court of Equity of Franklin county.

Thomas T. Eichards, who died in 1831, by his will, devised and bequeathed as follows: “I lend to my sister, Polly^ Eichards, the tract of land whereon I now live, and six ne-groes, named Sam, Jerry, Amy, Hinton, Lucy and Lavinth, together with my stock of every description, during her lifetime, and after her death, I give to my nephew, John W. "Womath, five hundred dollars, to be raised out of the estate, and the balance of which estate, I will and bequeath to the bodily heirs of my five sisters, that is, Frances Duke, (who is now dead) Martha Bowers, Eebecca Hefflin, Nancy Black-nail and Sally Conyers, to be equally divided among said heirs, with this exception, that I give and bequeath to my nephews, Thomas Bowers and Thomas Conyers, one horse apiece, worth seventy-five dollars, more than the rest of said heirs, forever.” Polly Eichards was appointed the sole executrix in the said will, and she qualified and took upon herself the burden of executing the trusts therein. By a former suit, in equity, between the plaintiff, W. H. Joyner, administrator *de bonis non,*of the estate of Thomas T. Eichards, and the other persons who are parties to this suit, a decree was passed declaring that all the children of the five sisters of the testator, after the death of Polly Eichards, and after deducting a legacy of $500 to John Womath, were entitled to have the said property equally divided among them *“per capita,”*with the exception of the two horses to Thomas H. Conyers and Thomas Bowers.

The said Polly Eichards entered upon the land on the death of her brother, the testator, and took charge of the slaves and other property. The perishable property was sold by her for payment of debts, and afterwards, under a special order of the *80County Court, at Mareh Term, 1832, of Franklin County, on a suggestion that a further sale of property was necessary to pay debts, a girl, by the name of Lucy, (named in said order) was sold to one Archibald Yarbrough for $134, and afterwards, another special order of the Court was obtained at March Term, 1834, upon a like suggestion for the sale of another slave, by the name of Peggy, which slave was sold accordingly to Sarah Conyers, for $130. Both of these negroes remained with the executrix, and possession of them was never demanded of her, nor taken by the purchasers, but each of them, shortly after these sales, formally executed titles to her, the said Polly Richards. Since then, she claimed the said slaves, as her own up to her death, which took place in the year 1855.

The plaintiffs, who are the remaindermen, allege that neither of these sales of Lucy or Peggy, was demanded by the condition of the estate of Thomas Richards, for that the property first sold, by her, was sufficient to pay all the debts of the estate, and they charge that such sales were mere devices, concerted with the said Archibald Yarbrough and Sarah Conyers, whereby it was agreed that they should respectively bid off the negroes offered for sale, and should each convey the same back to the said Polly Richards, by which devices^ she attempted to acquire a full estate in the said female slaves, in which, before, she had only a life-interest.

The bill further alleges, that the sum of $150 was recovered for damages to the land, in question, from the Raleigh and Gas-ton Railroad company, the track of said road being located upon a part of the land devised to the said Polly for life, as above stated, and that she received and used the whole amount of said damages, and the plaintiffs insist that they are entitled to a share of that sum, in proportion to the amount of damage done to their estate in "remainder.

The bill sets forth, that the said Polly Richards cut down and sold timber to the Raleigh and Gaston Railroad company, which was not merely taken off in the necessary course *81of working the land, but that the timber was cut for the express purpose of being sold; and amounted to waste.

The prayer of the bill is, that the said slaves, Lucy and Peggy, and their increase, may be decreed to be delivered up to the plaintiff, *W.*H. Joyner, the administrator *de lonis non*of Thomas T. Yarbrough, that the same, with the hires of the said slaves, since the death of Polly Bichards, may be divided among the plaintiffs, according to the provisons of the will, and for that purpose, that a sale of the said slaves shall be ordered, and an account of the hires. The bill further prays jfor a proportionate share of the land-damages and a compensation for damage and waste done to their estate in remainder.

The answers being by persons in their representative characters, do not affect the questions involved.

At December Term, 1859, this Court ordered an account of the estate of Thomas Y. Bichards, in the hands of his executrix, Polly Bichards, to be taken by the clerk of this Court, and at the present term, Mr. Freeman reported *“*that on the 21st of March, 1832, when the girl, Lucy, w,as sold, the executrix had assets more than sufficient to pay the debts of her testator, together with all the expenses attending the same, and also, that on the 8th of September, 1834, when the girl, Peggy, was sold, she had more than sufficient to pay the debts of her testator.”

There was replication to the answer and proof taken, and the cause was set down for hearing on the bill, answer, exhibits, and former orders, and sent to this Court.

*J. J. Dams*and *W. F. Oreen,*for the plaintiffs.

Eaton, for the defendants.

MaNly, J.

"When this cause was under the consideration of the Court at December Term, 1859, the sale by the executrix, Polly Bichards, of the girl slaves, Lucy and Peggy, and-the buying them back again, in a short time afterwards, was of so suspicious a character, that an account was ordered of *82the assets of the estate, that we might see whether the sale was necessary to pay debts. The report of the clerk, at this term, negatives the supposition that it could have been for the purpose of raising assets to pay debts. The assets, in hand, were already abundantly sufficient for that purpose. It could have been, therefore, only for the purpose of changing' the title. As the executrix was to have a life-estate in these girls, with an interest in remainder limited over, she had a'motive for desiring to change the estate which she held. No form of a sale, without necessity, under the influence of such a motive, could effect her object; the estate remained the same.

The facts of the case, and especially the significant one disclosed by the report of the clerk, constrain us to hold the sale of both the slaves, Lucy and Peggy, inoperative and void. They, and their offspring, must be accounted for and surrendered to the administrator *cl& ionis non,*of Thomas T. Richards, to be accounted for, by him, with the persons entitled in remainder.

There must, also, be an account of the hires of the slaves since the death of Polly Richards.

"With respect to the damages recovered by Polly Richards, the tenant for life of the land, from the Raleigh and Gaston Railroad company, we are of opinion the plaintiffs are also entitled to an account. By the condemnation of the land, under the provisions of the charter of the road, the company acquired an easement, in the same, for 99 years. The $150 assessed as damages, were not assessed, we take it, for the injury done alone to the life-estate, but to the estate *in*remainder also. The persons, therefore, in remainder, are entitled to a part of this fund, viz., such an amount of the same as will be proportional to the period of time for which they suffer the incumbrance. This, we mean, is the general rule applicable to cases of this sort. There may be special cases in which other elements will properly enter into the calculation; as, for instance: The special location of the road might affect, materially, the calculation of relative damage. If it ran through *83the yard of the tenant for life, the rule would not do the tenant full justice, while, if it went through a remote woodland, it would do more justice. It is referred to the clerk to enquire and report to what part of this sum of $160, the persons in-remainder are entitled.

It is also alleged, that there was a waste of the land by the tenant for life, by cutting timber, not needed for the estate, but which was cut for market. The clerk may make enquiry into this matter also and report results.

Pee Cubiam. Decree accordingly,,