#### R. C. PERKINS, Adm’r, v. H. P. R. CALDWELL and others.

*Will*— Legacy—Exeeütor— *Commissions.*

A testator, who in his life-time had made unequal advancements to his children, by his will bequeathed certain amounts to them, with a view to equality, payable in cash or property at the election of the executor, without stating when they should be paid ; the remainder of his estate was given to his wife for life and at her death the residue was to be divided into as many shares as he might have children then living ; at the time of his death the testator had sufficient personal property including slaves to pay his debts and legacies, but the solvent credits and monies belonging to the estate were exhausted in payment of debts and expenses, except certain shares of bank stock bequeathed to the executor (a child and legatee) but charged with the payment of $710 into the residuary fund ; the slaves at his death were worth much more than the amount of the legacies ; after his death the slaves and other personal property remained in the possession of the widow *with the approval of the legatees,*until the slaves were emancipated; the executor (now deceased) offered to-pay the legacy to one of the legatees, which was declined, and to another he paid a part; no effort was made by the legatees to compel a payment of the legacies until after- the slaves were emanci - pated ; *Held ;*

(1) That the legacies are not a charge upon the land of the testator ;

(2) That the estate of the executor is not liable for legacies ;

(3)' That the estate of the executor is liable for $710,|with;interest from the death of the widow, to be paid into the residuary fund ;

*442<4) That the executor is entitled to commissions, it being found that he acted in good faith.

*(Lassiter*v. *Wood,*63 N. C. 360, cited and approved.)

CONSTRUCTION of a Will heard at Spring Term, 1878, of Burke Superior Court, before *Cloud, J.*

The principal question decided by this Court is whether the legacies provided for in the will are a charge upon the lands embraced in the residuary clause, and the facts material'to the same are embodied in the opinion. See same case 77 N. C. 433. The testator bequeathed to T. N. Caldwell his stock in the bank of Cape Eear, stating that as said legatee had been advanced, he in consideration thereof should pay $710 into the residuary fund. This was provided for to produce equality among the legatees, and the payment of said sum was the condition upon which he should take the bank stock.

His Honor held that the lands were charged with the payment of the legacies and gave judgment accordingly, from which the defendants appealed.

No counsel for plaintiff.

*Messrs. A. C. Avery,*and *G.*IV. *Folk,*for defendants.

Eaircloth, J.

The plaintiff prays for a construction of the will of John Caldwell and for direction in the administration of the assets of the estate. When the case was before us heretofore we were compelled to remand it for the ascertainment of important facts which have been’found by the referee and the Court, and we will now decide the main questions presented with such general instructions as we can give, and remand it to the Court below where the calculations can be made and the details carried out. Without attempting to use the language of the will, we will state the substance of those facts material to the questions presented and such facts as are now before us.

*443The testator died in 1857, leaving him surviving his wife Hannah and four children, namely, James, Cbrnelia, Jane, and the late Tod R. Caldwell, who were his only legatees .and devisees. The last named was his executor, who died in 1874 without any final settlement of the estate, and during the life of the widow. The testator left personal prop•erty amply sufficient including his slaves to pay his debts and ail the legacies ; the solvent credits and money were however exhausted in payment of debts and necessary expenses, except certain shares of bank stock bequeathed to -the executor. He had made several unequal advancements ■to his children, and with a view to equality directed his •executor to pay specified amounts to his children, either in ■cash or in property at the election of 'the executor without saying when they should be paid. He then devised and bequeathed “ all the residue of my (his) estate both real and personal to his wife during her life and directs that at her death the *residuum*or *balance*be divided into as many shares *“*as 1 (he) may have children then living.”

'The testator had advanced in his life time to his son James $6500, and this was made the basis of equality to be arrived at by giving such amounts to the other children as would, added to their advancements, equal that sum. James having died during the life time of his mother, and never having married, his interest in the residuary fund lapsed, .and according to the express provision in the residuary •clause, that fund at the termination of the life estate will be divided into three equal shares among the other children, .•so that the provision giving the interest of the said James in the event of his marriage and death without leaving ■children, to the heirs of his son Tod, is nugatory.

The principal question submitted is, — whether these legacies are a charge upon the lands embraced in the residuum ? •Of course any other property belonging to the estate is liable to these legacies except any property specifically be*444queathed, as for example, the shares of bank stock given to-the executor, To determine this question it is proper to-look at the condition of the testator’s family and the nature of his estate. *Lassiter*v. *Wood,*63 N. C., 360. For this case it is not necessary to consider whether a pecuniary legacy becomes a charge on the realty by construction and legal operation, or by express language, as the latter is not the case here. The condition of the family sufficiently appears from what has already been said, and the report shows that at the time of the testator’s death his solvent credits and money were sufficient to pay all his debts and that his slave property was worth more than three times the amount of all the legacies chargeable thereon. It is therefore not a violent inference that the testator did not expect and intend these legacies to be satisfied from this fund. Rut it further appears from the findings of His Honor that the slaves remained undivided and unsold and with the other personal property, stock and farming tools, &c., remained as they were, in the possession of the widow and on the plantation until the slaves were emancipated, and that this was with the “approval of all the legatees.” It is further stated by thé Court that “ this disposition of the property seems to have been a family arrangement acquiesced in by all.”

Again it is admitted by the legatee, Jane, that the executor offered to pay her legacy, and that she declined to take it, and told him she did not want it during her mother’s life time. It is admitted that he paid Cornelia a part of the amount due her, and it appears that he could not have paid the balance without selling slaves, and she *now*says if he had concluded to sell slaves for the purpose of paying her, she does not know that she would have consented to the sale.

We know these legatees could have compelled payment of the amounts due them, but it does not appear that they *445¡ever made any effort to do so at any time before emancipation. We therefore think these legacies are not a charge on the land. For these reasons we,think the estate of Tod R. •Caldwell is not liable for the legacies. *We*see no reason -why it should be. That would be a hard measure resulting from subsequent events which neither party could *then*foresee. Iiis failure to pay them iertainly was no greater negligence than their failure to collect when they had a right .to do *so.*

We think however his estate is liable to pay $710 into fhe residuum with interest from the death of the widow "that being the time pointed out for its division. The payment of this sum was the express condition upon which he was to receive the bank stock which he collected and used. This amount will be accounted for in the final settlement with his administrator.

It is stated by His Honor that the executor acted in good faith and with strict integrity, and as we see nothing to the contrary, we see no reason why commissions should be withheld from him. The fact that no inventory of the prop•erty which came to his hands can be found is not satisfactoy proof that it was not filed, because it also appears how it .may have been destroyed. There is no exception to the .amount allowed, but we will not say whether it is excessive or not, but leave that matter for the Court below to consider when the account is revised.

The judgment is therefore erroneous, and the case is remanded.

The cost in this Court will be paid equally by the parties.

Error. Reversed.