#### JAMES W. PATTON AND JOHN E. PATTON, EX’RS., *against*THOS. T. PATTON AND OTHERS.

Whore all the personal property of a father had been placed by him in the hands of one of his sons to manage the same and dispose of a part of it in legacies, as he should afterwards direct in his will, (the overplus to belong to this agent, who was afterwards appointed executor,) and certain property is sold by the agent to another son, who had been put in possession of it with an intention of its being his; and such property is afterwards bequeathed to the son thus possessed of it, without any knowledge on the part of the testator, that it had been sold; it was *held,*that this legacy was not adeemed by the previous sale to the legatee, but that it should bo made good to him out of the testator’s estate.

Cause removed from the Court of Equity of Buncombe County-

This bill was filed by the plaintiffs, as executors of the late James Patton, praying the Court that an account might be taken, under the instructions of the Court, and the whole estate settled finally, so that they might, be discharged of the trust imposed by their testator’s will.

*495Among tbe other clauses in the will of James Patton, is one (item 13) which is as follows:

“ Believing that it would promote the interest of all my family, I concluded, upon the 24th of September, 1827, to commit to my son James the entire management of the estate. I estimated my personal property to be of the value of forty-five thousand dollars, and determined that he should pay out of it such legacies as I might bequeath to his brothers and sisters ; and that so much of the original fund, together with the accumulation made by his care and management, as might not be exhausted by the payment of legacies, should ultimately be given to him. From that period to this, he has conducted. my business to my entire satisfaction — has paid to his brothers, John and Benjamin, in discharge of their legacies, and in partial payments to his sisters, the aggregate sum of thirty-six thousand seven hundred and forty-four dollars, ($36,744.) In compliance with my original intention, and to enable him to pay the several legacies herein mentioned, and to perform faithfully the many important trusts which will devolve, upon him, I give him all my personal estate not herein before specifically bequeathed, with the exception of the house-hold and kitchen furniture, stock, crop and farming utensils at my farm on Swannanoah, which I give to my son Thomas.”

In the next clause of his will, (item 14,) the testator bequeaths, among other things, as follows: *“*Of the legacy to my daughter Anne, (Mrs. Anne E. Smith,) I direct that two thousand dollars shall be paid by my four sons, (James "W., John E., Thomas T. and Benjamin,) in equal proportions — ■ $500 each — out of the legacies to them given.”

By virtue of the power and authority given to his son James *W.*Patton, on the 27th of September, 1827, he sold to Thomas T. Patton all the crop, stock and farming utensils at the Swannanoah farm, for $2,244,50, received payment for the same, and appropriated the amount received to his own use. "When Mr. Patton made his will, he was ignorant of any such transfer having been made. Thomas was in possession of the farm and had been for several years.

*496It was referred to tbe clerk and master in Equity of Buncombe County, to state an account of tbe effecis, wbicb bad come into tbe bands of the executors, &c.

In the report filed, it appeared that tbe sum of ninety-one dollai’s and fifty cents was deducted from legacies given to three of tbe testator’s grand-children, J. N. and J. P. Perkins, and Mrs. Cox; tbe reason given was, that that sum bad been overpaid to their mother. This formed tbe ground of tbe first exception.

Tbe clerk and master refused to charge the executors with tbe value of the crop, stock and farming utensils, in favor of Thomas T. Patton, upon tbe ground, that when the testator made bis will, he did not own that property. This formed tbe ground of tbe second exception.

There was no other legacy in the will to Thomas T. Patton than that last above mentioned ; and the clerk refused to allow any charge in favor of Mrs. Smith against Thomas T. Patton, as, according to the above report, he was to receive no legacy out of which it could be paid. To this she excepted.

The cause was heard upon a motion for further directions, upon the report of the clerk and master, and upon the exceptions above stated.

*JT. W. Woodfin*and Gaither, for plaintiffs.

*Baxter*and *Avery,*for defendants.

Battuk, J.

This case comes on for further directions upon the report of tbe clerk and master of the Court of Equity, for the County of Buncombe, and tbe exceptions thereto.

The exceptions of the defendants J. P. Perkins, J. N. Perkins and Mrs. Cox, are sustained, for the reason that the amount overpaid to their mother, Mrs. Smith, cannot be deducted from what is due them.

The exception of tbe defendant Mrs. Anne E. Smith, depends upon that of the defendant Thomas T. Patton, which we will, therefore, consider first.

*497This exception depends upon the proper construction of tbe 13tb item of tlie will of tbe plaintiffs’ testator, referred to in tbe report. This clause of tbe will, wbicb was made and published in 1835, is of a Tory uncommon and extraordinary character. It commences by reciting that tbe testator, believing- that it would pro-mote tbe interest of all bis family, bad, in 1827, committed to bis son James *W.*Patton, tbe entire management of bis estate ; that be estimated the value of bis personal property to be forty-five thousand dollars, and out of it be intended that bis son James should pay such legacies as be might bequeath to bis other children, leaving the residue for bis said son. lie then declared that bis son bad conducted tbe business to bis entire satisfaction, and that bo bad paid to bis brothers John and Benyamin, in discharge of their legacies, and in partial payment to bis sisters, tbe aggregate sum of thirty-six thousand, seven hundred and forty-four dollars. Tbe testator- then yn-oceeds thus: “ In compliance with my original intention, and to enable him (James) to pay tbe several legacies herein mentioned, and to perform faithfully tbe many important trusts wbicb will devolve upon him, I give to him all my personal estate, not herein before specifically bequeathed, with tbe exception of the bouse-liold and kitchen furniture, stock, crops and farming utensils, at my farm on Swan-nanoah, wbicb I give to- my son Thomas.” By reference to tbe fourth item of tbe will, it will be seen that tbe testator gave bis farm on Swannanoah, together with certain slaves, to bis executors, in trust for tbe wife and children of bis son Thomas. On the marriage of Thomas, wbicb occurred some years before tbe will was made, tbe testator put him in possession of that farm, and be continued to reside on it with bis family, taking and applying tbe profits of it for the use of himself and bis family'-.

In tbe year 1832, it appears from tbe proof, that tbe plaintiff James *W.*Patton, sold to bis- brother Thomas, tbe crop, stock and farming utensils on tbe said farm, for tbe sum of $2,244,50, and received tbe price, and appropriated it to bis own use. Tbe question is, whether tbe defendant Thomas is *498entitled, under the circumstances, to claim that sum, with interest, from his brother James; and we think that, upon the fair construction of the item in question, aided by lights reflected from some other parts of the will, he is so entitled. It appears from several clauses of the will, that the testator designated as legacies what he had previously given to his respective children; and further, that he intended that his son James should advance in his life-time what he then bequeathed to them b.y his will. Such, no doubt, was/his intention with regard to the legacy to his son Thomas. It is very certain that he did not intend his son James should have the benefit of it, for it is expressly excepted out of a general gift to him of all his personal estate. Ilis son Thomas was in the possession of it, and it does not appear that he knew that his son James had sold it to him, and had received the price to his own use, and we are not to presume that such was the fact, against the inference to be drawn from the words of the will itself. The testator, though an old, was apparently a very intelligent man, and we can hardly believe that he would mock his son by bequeathing to him what he had already, by his agent, sold to him; and sold to him too, for the benefit of another son, who, he declared at the same time, should not have that legacy. That he intended this as a bounty to his son Thomas, is apparent from another consideration. This is the only direct gift to his son Thomas, yet he charges him with the payment of five hundred dollars to Mrs. Smith, one of his sisters. This would be another instance of an illusory gift, if Thomas is to take nothing under the will. No person can read the will, without being entirely satisfied that the testator never contemplated any such result. But it is contended for the plaintiff James W., that the legacy was specific, and was advanced in the testator’s life-time; and for this is cited 1 Roper on Leg., ch. 3, p. 237. The general doctrine is admitted; but we do not think it applies to this case. Here, the will operated as a confirmation of what the testator supposed was a gift to his son Thomas. The words of the will itself contradict the supposition of a sale of the goods, with the *499knowledge and consent of the testator. Our opinion, therefore, is, that the defendant Thomas is entitled to claim from the plaintiff James W., the price of the crop, stock and farming utensils in question, and with interest thereon from the death of the testator, and his exception is, therefore, sustained.

The exception of the defendant Mrs. Smith, being dependent upon that of the defendant Thomas, is also sustained. The report of the clerk and master, after being reformed in the particulars excepted to, will be confirmed, and a decree may be drawn in accordance with this opinion.

Pee CuRiAM. Decree accordingly.