#### John Smith *et al. v.*William Barham, *et al.*

A residue which is given for life, with a remainder over, must he sold by the executor, and the interest paid to the legatee for life, and tho principal to him in remainder, because this is the only mode of giving both ■sets of legatees, the enjoyment of those chattels which are perishable.

'Slaves are, in this State, an exception to this rule, because they are not consumed in the use, and their natural decay is supplied by their issue» which goes to those in remainder.

The plaintiffs were some of the legatees in remainder, of the residue bequeathed in the will of *John Barham,*deceased, and filed their bill against the executors, atul the other residuary legatees, for an account and satisfaction. By an original and amended hill, it was charged that the testators died in September 18¿5, and directed his debts to be paid out of such parts of his estate as he did not specifically dispose of thereby, and “the residue ****with all the lands lie should die possessed of, he lent *u*to his wife *Mart/*during her life,” repeating, that by the term “ residue,” he meant that whatever should ro-'Kiaiu after the payment of debts, should go to the wife for life, and that after her death, the residue therein ■lent to his wife, (tho land excepted,) should be divided amongst his children and grandchildren, in seven equal parts, of whom the plaintiffs were some, and the de- . fendants the others. The defendants *licítelas*and *William*were appointed the executors, and proved the will. Tire bills then further charged that the testator had about twenty slaves, which formed part of the residue, and also a large crop growing, ami provisions on hand, á valuable stock of horses and cattle, and hogs, farming titensils and household furniture, all of which, except the slaves, it was the duty of the executors to have sold to raise a fund to pay the debts; but that instead of doing so, they either sold or suffered to be sold under ¡In execution several of the slaves, one of which, *í)ai¡e,*the defendant *William*purchased, and left the other articles of inferior value, and most of them perishable hi their nature, in tiie possession of the widow, who has consumed them, or they have been otherwise converted by her or *421by the executors. The bill also charged that the defen-* ant *William*hired out some of the slaves* or made profit otherwise from them during the life of the widow, which should have been applied in discharge of the debts, instead of suffering any of the negroes to be sold for that purpose, and therefore that he ought to account for the value of the slaves sold, for the hire received by him, and also deliver up Dave, as a part of the residue. The bills also charged that the defendant *John Barham*owed ihe testator a large debt, which the executor failed to collect, although *JHHiam*purchased from *John,*his share of the negroes, and the other residue, and paid him for them with profits of the estate, then in his hands, and that the executors were chargeable with that debt,

■ The defendant *Nicholas*answered and *admitted that*lie proved the will, but slated that he resided in Virginia and had never intermeddled with the estate or received any part of it.

• The answer of the drfendanUTi'/iicm admitted the will as stated, and insisted that for the purpose of raising a fund to ¡iay the debts, a discretion is given to the executors to sell any parts of the effects composing the residue, and do justice to all the parties. That accoid-ingly he sold nearly all the stock, farming utensils, furniture and provisions, except only such things as Were indispensably necessary for the support of the widow (a very aged woman and the mother of tiiese parties) and that a sufficiency for that purpose, *including*the grain crop growing at the testator’s death, was not left unsold, and that he did sell the crop of cotton of that year. That the widow died in September 1830, and that thereupon the negroes remaining unsold, were divided among the remainder-men, ami the plaintiffs received their shares, and that this defendant then sold all the other articles which had been left unconsinncd by the widow, and applied the proceeds to the discharge of a balance of the testator’s debts then unpaid. He admitted that some of the negroes were sold under execution, and averred that it was unavoidable, as suits were pending against the testator, and he was unable to raise *422cash to discharge the judgments; and that lie purchased *Dave,*at a full price, and borrowed the money to pay for him, but lie submited to have the purchase declared void, at the election of the plaintiffs. He further admitted that he hired out some of the negroes, but said the widow was entitled to the hire, and that he was ready to account with her representative. With respect to the debt of *John Barham,*the answer stated that the defendant found among the papers of the testator some evidences that lie had paid money for his son *John,*several years before his death, and that he,the defendant, being unable to get any information upon the subject, or whether his testator had been satisfied, sued out attachments against *John,*(who resided out of the State,) and levied them on a slave *Mel,*specifically be-bequeathed by the testator to him, and also on his share of the residue upon which judgments w’ere had, and a sale made, and that he,, the defendant *William,*became' the purchaser. That one reason for attaching this interest was, that other creditors of *John*would have done so. and if the debt to the testator was really due, as it appeared to be, it would then be lost: That he made the purchase for the benefit of the estate,and was willing that it should be so considered, if it was to stand at all, orto, take it himself, as the plaintiffs might elect. But. that lie lias recently discovered that the debts were probably not due, and that the whole proceeding was founded in a mistake, upon the apprehension of which, at the time of the jiurclia.se, it was understood that if it should so turn out, the purchase should enure to the benefit of his absent brother *John.*That *John*has since declared that nothing was due, claimed the property, and instituted proceedings to reverse the judgments,, and that the persons interested in the estate, except one of the plaintiffs, *Smith,*had agreed to surrender the claim.— He submited to hold this part of the estate,for the benefit of either of the parties in whom the right might be deemed to be.

The answer of *John Barham*set fortii the particulars of that part of the case relative to the claim against *423hi,^ rtlbre a!t lai'gc, and alleaged that de did not owe bis father any thing, and that the proceedings were irregu-Jar and null, and claimed his share of the property. He ajso c]a¡me(] that all the hire and profits of the negroes, and other property which had accrued during thelife of the mother, and also the proceeds of the crop growing at the testator’s death, belonged to the tenant for life,and was to be accounted for by the defendant *JFilliam,*to her representative.

Bctween the lieir arid the cxe-b>g°cropCg&cri'to the latter^ ^>ut cutor and the de-vi*», the rulo is

A reference was made to the master, and lie reported against the executors a balance of gl 154 29, exclusive of interest. To produce this result the master charged the defendants with the hire of certain of the slaves during the life of the widow, and also with the sales of the cotton, and corn crops, growing at the death of the testator, and further with the value of hogs, sheep and wheat, and one cask of brandy, not sold, hut consumed by the widow. The master made no report upon the subject of *John Barham’s*debt, and his claim to the property sold for it, and gave as a reason that there were proceedings at law between him and the executors, to vacate the judgments, and to ascertain the debt, if any. The master also charged the defendant *William,*with the price of *Dave,*as upon a sale to him.

To the report both parties excepted, but the exceptions of the defendant raised the only questions of importance.

*Devereux,*for the plaintiff.

*The Attorney General,*& *fV, II. Haywood,*for the executors.

HUITIN, Chief-Justice

After stating the pleadings and report as above, proceeded:

The crops growing on the land, at the time of the testator’s.idcath, go to the executor as against the heir,but as between the executor and the devisee,the latter is entitled tjieiD, Thd devisee takes the land by the intention of the testator, with every thing on it, for as the devise car-vies the land against the heir, so it does the crop against ¿¡1C executor.! The rule is so strong, that if the devise *424be for life with remainder over, anil the first taker die before severance of the crop growing at the death of the testator, it goes over with the land to the remainder-man, in preference to the personal representative of the first taker.

Here the testator died early in September 1825. Ho then left in the grainery, a smalt quantity of corn, and wheat — not more than sufficient to support the stock and negroes, until the executors could, at the next court, prove the will and get authority to sell. It is in evidence that it was not sufficient; for a considerable portion of the growing crop was used for that purpose. — - Now although it may be the duty of the executor upon a will like this, to sell all the perishable property, and invest the proceeds for the security of the fund, for the remainder-man, paying the interest, as the profits, to the legatee for life, yet some time must be allowed to make it, and in themeanwliile the stock must be supported and kept fit for sale, and the slaves fed. The executor ought not to sell until probate, to obtain which he is obliged to wait for a court, it is the interest of all concerned, that the support should be drawn from tiic property it* self, until the sale is made in seasonable time. Here it was in December 1825, about one month after tiro probate of the will. The exceptions of the defendant to so much of the report as charges the executors with thirty bushels of wheat on hand, is, on this ground allowed. And the exceptions to so much of the report as charges them with the corn and cotton growing at the testator’s death, is also allowed. In the account a particular quantity of corn, 80 barrels, is charged as a distinct item, at 8360, and also of fodder, 10 stacks $25, which is seen at once. But the cotton explicitly appear upon the report. There iu for one hale as an item in the account, beif master states, a part of the crop not sol down at the price of gSO. But the princql this charge is in the general item of “ atnourf 81967" 93, which upon a reference to the accouii sales obtained from the County Court, (which was the *425evidence on which the master acted,) is found to include 9263 lbs. of cotton,disposed of at the general sale by auction, at $ 505 68. It appears upon the proofs that this cotton, fodder and corn was o.n the land when the testator died, and was gathered by the executor and widow. To the latter they belonged, and to her the executor is accountable, and not to the residuary legatees in remainder.

A legatee for life is bound to keep down the interest of a debt charged upon Ins legacy, and lie may be compelled to contribute to its payment. But he is not bound to surrender the ■whole profits for the purpose of extinguishing it.

The same is true also as to the charges of the hire of the slaves.which belong to Ibe widow. When there is ade.vi.se of lands,or a specific bequest of a chattel for life, with remainder'over, and the subject is charged with debts not equal to the. whole value, the tenant for life may be required to keep down the interest out of the profits, or the parties are required to raise the principal by contributions in proportion to the value of their respective interests, But certainly in no case can the remainder-man require the whole profits to be applied in extin-guishment of the charge, for the sake of saving the subject, for that would defeat the life estate altogether— But in a residuary bequest to one-for life,and then over, the whole is subject to the immediate payment of debtsf and the executor may and ought to sell enough for that purpose, in the first instance. For it is only what remains, after payment of debts, that is given either for life, or over. So much of the capita! is to be sunk at oucc. Here it has been done, by the sale of a part of the consumable articles, and a part of the slaves; and the plaintiffs say that was wrong, and so the master finds, because there were sufficient profits of the unsold slaves to answer that end. That position cannot be maintained. These profits arc the use given to tlie tenant for life. The exception to these charges in the account must therefore be allowed.

The master has also charged the executor with 28 shoats, 35 fat hogs, 6 sheep, 30 gallons of-brandy, and some casks and hogsheads, of the value altogether .of $261. He has also charged them with the value of some household furniture, not sold either at the sales after the death of the testator, or after that of the widow, *426to the value of Si5.' 'The executors except to these charges upon the ground that these articles were noces-sary to the support of the widow atid the family, and in order to keep up the plantation.' The' argument on the other side is that these'articles should all have been sold, and if necessary for that purpose, the proceeds applied to the payment of the debts, or if not thus needed, invested and the interest only paid to the widow for life, and therefore that the executors are chargeable with their value.

nfc^of a^pecifa-chattel has a right ofh^andThea” sentofthecxecu-vegUs the title of himinremaiiidcr.

We’believe the common understanding of testators in the rountry is with the defendants; for they can hardly be supposed t > give to their widows lands and negroes for life, and to intend to strip the plantation.— But we believe likewise that the law is (dearly with the plaintiffs on this point. '

Where there is a gift of a specific, chattel for life, and then over, the executor may assent to the legacy and discharge himself from liability to the remainder-man, by delivery to the tenant for life, for the assent to that legacy.is an assent to the one in remainder. It was formerly held, indeed, that the executor would be hound to the remainder-men, unless he took security from the tenant for-life, that the thing should be forth-coming at his death. But unless there he collusion, it is now held otherwise, and the tenant for life is only bound to give a receipt, or sign an inventory as it-is called, unless there be reason to believe that the article will be- destroyed or sent away — in which case the executor may refuse to deliver it without security, or the remainder-man may after delivery file his bill for security. *(Foley*v. *Burnell,*1 *Bro. Ch.ca*279.) In such cases, the remainder-man must be content to receive the article as it ought to be left by the first taker, after using it with ordinary care and prudence. ' When, however, there is such a specific gift of what we commonly call, and what the master here calls, “perishable articles,” or of what are embraced under the description in the books, of “ articles *qua ipso usu*consumuntur,” it is difficult to say what is meant. I rather think testators seldom do *427mean to give such tilings for life only, and that those words are annexed by mistake to that gift, by inadvertently inserting it in the clause giving other things of a different kind, and which are meant to be for life only. But if the testator really intends such a gift to be for life, we can hardly imagine what rights of enjoyment he meant for the objects of his bounty respectively. For to give wine, corn, sheep or cattle for life, is to give the whole, if the legatee is to have any use oí if, since the property, nay, the consumption, is inseparable rrom the use: unless the testator has this further meaning, that the tenant for life may consume and sell, as he would himself if living, and that whatever is left, both of the original stock and the increase, shall be taken as the estate of the testator, and go to the remainder-man. I rather suppose that this, is the. meaning, for such dispositions are generally found in the provisions for wives, to whom children are to succeed, and the testator supposes that the mother would wish them to take all whether it be his or her estate. This notion may have grown up from the rule of our law respecting the increase of slaves given for life, all the articles being given together in the same clause. But to the admission of such a construction there is the insuperable objection that it is against the positive and ancient rule of the common law, that the increase is the use and profit,and therefore belongs to the tenant for life in whose time it accrued; to which, slaves constitute the only admitted exception. We would not feel authorised, upon bare conjecture as to the testator’s intention, to carry it farther. Then what are the respective interests of the tenant for life, and remainder-men inconsumable chattels specifically bequeathed ? From the decisions it is far from clear. We do not know of any in our own courts upon the point. In England it is apparently unsettled. In *Foster v. Tournay,*(3 *Ves.*311) *Lord Mvanley*said that some learned judges had thought the articles must bo sold, and the persons entitled to the limited use have only the interest; which he thought very rigid. Yet in *Randall*v. *Russell.*(3 *Meriv.*190) Sir *William Grant,**428taking notice of that observation, says that bis conception is that a gift for life, if specific, is a gift of the pro- ‘ perty in tilings, *“quae ipso usu consumuntur,”*and that it conics within the reason of the old law that there cannot be a limitation over of a chattel after a life estate.He admits it to be otherwise, when such articles arc included in a residuary bequest, with ethers of a different nature, in which case the whole arc to be sold by the executor, and .the interest received by the tenant for life. That is the case now before the,court, and therefore further speculation upon the effect of a specific bequest is unnecessary.

*427When a specific chattel which is consumed in the use, is g ven for life, what interests vests in the remainder-man!

*428It seems clear that when a residue is given, as such, it is to be sold by the executor. The several things are not given, the testator supposing them not worth giving, ■ as *corpora,*not knowing how much, or'which of them it may be absolutely necessary to -sell for payment of debts and pecuniary legacies. The gift is then of the nett balance of the proceeds after the'debts are paid, which implies a sale. And .if this were-not the case, when there is an immediate gift of the residue after the debts arc paid,it must be, when there is a limited use given in the surplus to one for life, and then to another; for then there is nothing to shew that as to the consumable articles the testator meant to give the particular legatee that use which consists in consumption, and as they are complicated in the same clause, with the others of a different nature, the whole must go together, and as a part must be sold, the whole must, and the first taker have the profit only. For upon the intention it is taken tfiat the benefit is to be divided between the legatees in the whole subject, which cannot otherwise be, for if the tenant for life does not use the perishable articles, he gets no benefit, and if lie does use them, the legatee over gets none. Such parts of the exceptions as relate to these articles must therefore be overruled. The executor is properly charged with the value of them in this suit, and as the widow had the benefit of them, he will be entitled in the settlement he will make with her representative, to the value now answered for by him, as *429a credit against the charges against him for her cotton sold by him, for which he lias by this decision credit in this suit.

To the rule thus laid down, slaves are an acknowl-ed expection, fouuded on the known expectations of testators, and the general understanding of the country, and the profession. Indeed the reason of the rule itself constitutes them an exception. They are not wasted by use, and if they are, that waste is supplied by their issue, which it has long been held, goes with the remainder. With respect to them, service and not increase is the use, of the tenant for life. When, therefore, they are included in a residue with o.ther things, they are to be treated as they generally are when left by an intestate, not sold, as other parts of the estate, but divided amongst those entitled, unless a sale be necessary for debts or distribution.

The defendant *.William*having submitted to have his purchase of *Dave*declared void at the election of the plaintiff, it would be of course. But the master has charged the price of him, (which is proved to be a full one,) in the account, and it has been paid in discharge of debts, ami the plaintiffs have taken no exception upon that point, which is an election, and binds them.

The result of these views is that a balance is found due to the executors as far as the accounts have been stated, and the bill would be dismissed but' that the plaintiffs may wish a further enquiry upon the subject of *John Barham’s*debt. For that purpose the cause will be retained, but if no motion for further directions be made by the plaintiffs, on or before the calling of the case at next term, the bill will be dismissed afterwards, when moved for by the defendants.

Per Curiam, — Order accobdingut.