#### Robert C. Gillam *vs.*Joseph Caldwell and others, Executors J. P. Caldwell. Same *vs.*Same.

*Wills and Testaments*— Limitation *of Estates*— Adminis*tration.*

The testator devised and bequeathed his estate, real and personal, to-his executors, in trust, for the sole and separate use of his two daughters, each to take one-half for life, with remainder to her issue, and should one die without leaving issue her surviving, then her share to the surviving daughter for life, with remainder to her issue; {{but in the event that both of my daughters should die without leaving issue surviving, then and in that case,” he devised and bequeathed his whole estate, real and personal, after some inconsiderable pecuniary legacies, to his brothers and sisters. The two daughters both died unmarried and without issue. *Held,*that the limitation to the brothers and sisters of the testator was valid.

The will containing no provision for the payment of *debts*— held, that they were chargeable on the corpus of the estate, and not exclusively on the income to which the daughters, as tenants for life, were entitled.

Where a testator gives no direction as to the fund out of which his debts should be paid, they are, as between tenant for life and remaindermen of the estate, chargeable not upon the income, but upon the corpus of the estate as *it*existed at the death of the testator.

BEFORE JOHNSTON, CH., AT NEWBERRY, JULY, 1858.

J. P. Caldwell died in October, 1848, leaving a last will and testament, of which the following is a copy :

I, James P. Caldwell, of the District of Newberry, in the State aforesaid, do make the following disposition of my estate, to take effect at my death, as and for my last will and testament, viz:

First. It is my will and desire that my executors, hereinafter named, shall sell my plantation lying on Indian creek, *74commonly called the Gracy Place, and containing about five hundred and fifty acres, (more or less,) if in their opinion they can obtain a reasonable price for the same; but if a reasonable price cannot, in their opinion, be obtained for the said tract of land, then the same shall be retained by my executors for the benefit of my estate, until the general division of my estate shall take place between my two daughters, as hereinafter directed.

Second. I also authorize and empower my executors to sell my tract of land, called the Ragland tract, containing about thirty-three acres. Also, another tract of land owned by me, lying adjoining lands of William Prize, Burder Boozer, and others, and supposed to contain between one hundred and fifty and one hundred and sixty acres. Also, another tract of land owned by me, called the John Hall tract, and supposed to contain thirty-five or forty acres, bounded at this time by lands of Thomas Crosson and James Hogg. Also, one other tract of land owned by me, supposed to contain about one hundred and thirty acres, bounded at present by lands of Allen Gibson, James Hogg, Patrick Martin, and others. It is not my intention by this clause to direct my executors positively to sell the farm tracts of land in this clause mentioned, but my intention is to leave it to the judgment and discretion of my said executors to sell the same, or any one or more of them, should it in their opinion be conducive to the benefit of my estate; and should any one, or all of the said tracts of land in this clause mentioned remain unsold by executors at the general division of my estate, then such tract or tracts, so remaining unsold, shall be disposed of as hereinafter directed.

Third. It is my will and desire that the stock of merchandise in my store, at the time of my death, shall be retailed out under the direction of my executors, as heretofore, until the stock shall become so reduced that the profits will not defray the expenses of a retail clerk to attend to the business, *75at which time my executors may sell the remaining stock of goods at public auction.

Fourth. I give, devise and bequeath to my executors, hereinafter named, the whole rest and residue of my estate, both real and personal, including all my bank and railroad stock, and all debts of every description that may be owing to me at my death, *together*with the proceeds of the different tracts of land mentioned in the first and second clauses of this will, should the said lands or any part of them be sold, but if sales of the said lands in the said first and second clauses of this will cannot be effected on the terms prescribed, then I give and devise the said lands, or such as may remain unsold, to my said executors, together with the proceeds of any other property, which may be hereinafter directed or authorized to be sold, in trust to and for the following uses and purposes, viz: The one-half thereof for the sole and separate use and benefit of my daughter, Jane Harriet Caldwell, for and during the term of her natural life, and, at her death, I give, devise and bequeath the said one-half to the issue of her body, absolutely and forever, to be equally divided between them if all living, but if not, the child, or children of a deceased child, shall take among them the share which the parent would have been entitled *to*if living; and the remaining half of my estate for the sole and separate use and benefit of my daughter, Helen Carew Caldwell, for and during the term of her natural life, and, at her death, I give, devise and bequeath the said last-mentioned one-half of my estate to the issue of her body, absolutely, to be equally divided between them if all living, but if not, the child, or children of a deceased child, shall take amongst them the share which the parent would have been entitled to if living; but if either one of my said two daughters should die without leaving issue her surviving, then, and in that case, I give, devise and bequeath the share in this will given to such daughter, so dyiug without issue, to my said executors, in *76trust for the sole and separate use and benefit of the survivor of the said two daughters during her natural life, and, at her death, I give, devise and bequeath the same absolutely and forever to her issue, share and share alike, the child or children of a deceased child, if any, taking among them the share to which the parent would have been entitled if living.

Fifth. But in the event that both of my daughters, above-named, should die without leaving issue surviving, then, and in that case, I give and bequeath out of my estate the sum of four hundred dollars to Mary Ann Glenn and her children; to Harriet Reid and her children, I give the like sum of four hundred dollars ; to Rebecca Logan and her children, I give the like sum of four hundred dollars; and to Dr. Joseph Chapman and his children, I give the like sum of four hundred dollars, all absolutely and forever; and, upon the same contingency, I give to the three children of Richard S. Brown, deceased, viz: James L., Sims E., and Martha Brown, each the sums of one hundred dollars, absolutely and forever.

Sixth. And upon the happening of the contingency in the last clause above alluded to, viz: the death of both of my daughters without leaving issue, then, and in that case, I give devise and bequeath the whole of my estate, both real and personal, after deducting the pecuniary legacies in the fifth clause above specified, to my brothers and sisters, to be equally divided between them, share and share alike, absolutely and forever; but should any of my brothers or sisters die before such division shall take place, then the child, or children of such deceased brother or sister, shall take among them the share which their parent would have been entitled to if living.

Seventh. It is my will and desire that the estate given to my executors, in trust for the uses and purposes in this will specified, shall continue under the control, management and direction of my said executors, until my said daughters shall respectively attain the age of twenty-one years or marry, at *77which time my said daughters shall have the use, benefit and enjoyment, and possession of all the property and estate which they may be respectively entitled to for life under this will; the legal estate or legal right to the same, however, remaining in my executors during their lives as aforesaid.

Eighth. Should any of the slaves belonging to my estate become so turbulent and unruly as to become difficult of government, either whilst they are in the possession of my executors, or after they shall have been delivered into the possession of either of my daughters, or should the situation of my estate require more funds than my executors may be able to realize from the debts due to my estate, and from the sales of property herein authorized, (provided such necessity for additional funds shall occur whilst said slaves are in the possession of my executors,) in either case I authorize my executors to sell such of my slaves as may become unruly as aforesaid, or to sell a number sufficient to raise such additional funds as may be absolutely necessary for the use of my estate, provided that my executors shall be restricted to the sale of old negroes, in either of the events contemplated in this clause, and shall not be at liberty to sell off young slaves.

Ninth. It is my will and desire that my sister-in-law, Rebecca Logan, have the care, management, control and keeping of my two daughters, Jane Harriet Caldwell and Helen Carew Caldwell, for two years from the date of this will; and, at the expiration of that time, it is my will that my said two daughters shall be sent to the female school in Salem, in North Carolina, and kept at that school for four years each.

Tenth. I constitute and appoint my brother, Joseph Caldwell, and my brother-in-law William W. McMorries, executors of this my last will and testament. In witness whereof, I have hereunto set my hand and seal, this twenty-ninth day of September, one thousand eight hundred and forty-eight, and in the seventy-third year of American Independence.

*78The bill, which was against the executors named in the will, stated that Jane H. Caldwell, one of the daughters of the testator, died on the-day of January, 1855, intestate, unmarried, under the age of twenty-one years, and without issue: That Helen C. Caldwell, the other daughter of the testator, died on the 2d day of July, 1856, intestate, unmarried, under the age of twenty-one years, and without issue: That letters of administration on the estate of these two daughters have been granted to the complainant, R. C. Gil-lam. In the one case, the complainant claimed that as administrator of Jane H. Caldwell, he was entitled to an account of one-half of the personal estate of the testator, and to one-half of the rents and profits of the real and personal estate, from testator’s death to the death of the said Jane H. Caldwell. In the other case, the complainant claimed that as administrator of Helen C. Caldwell, he was entitled to one-half of the personal estate of the testator; to one-half of the rents and profits of the real and personal estate, from the death of the testator to the death of the said Jane H., and to the whole rents and profits of the real and personal estate of the testator, from the death of Jane H. up to the time of the final settlement: The answers of the defendants insisted that the whole corpus and income of the testator’s estate passed over to the brothers and sisters of the testator, upon the death of Helen C. Caldwell, the last surviving daughter.

Johnston, Ch. These cases were heard together: On hearing the bills and answers in these cases, and the argument of counsel, it is adjudged and decreed, that the limitations in the will of James P. Caldwell, deceased, to the survivor of his two daughters, Jane H. and Helen C., and to testator’s brothers and sisters are good, and that the two daughters, respectively, took life estates, both in the personalty and real estate of testator: That the rents and profits of said life estates, vested in the daughters, and became transmissible, *79and their respective administrators are entitled to an account of the same.

It is, therefore, ordered that the commissioner do take an account of the rents and profits to which the said Jane H. and Helen C. were respectively entitled; and that in taking said account, the corpus of the personal estate of the testator be charged primarily with the payment of debts, but not in such manner as to disturb the actual profits, the realty and personalty having been kept together, and that the rents and profits be chargeable with the support, maintenance, and education of the daughters.

It is further ordered, that the commissioner do take an account of testator’s guardianship of his two daughters; and if, upon said accounting, it should appear that the balance due by the executors exceeds the amount paid into Court, they are to be charged with the excess, and if the amount so paid should exceed said balance, they are to have a credit for the excess.

The complainant appealed from so much of the decree as decides that the limitation over of the real and personal-estate to the brothers and sisters of the testator is good, and now moved this Court to reverse the same.

The defendants appealed from so much of the decree as directs that the debts of the testator should be charged upon the corpus of the estate, and that the defendants, as executors, account to the plaintiff for the rents and profits, on the grounds:

1. Because his Honor erred in directing that the corpus of the testator’s estate should be charged with his debts, when it is respectfully, submitted that the debts were properly paid by the executors out of the increase, instead of breaking in on the capital of the estate; there being no portion directed in the will as to the payment of the debts, and his daughters equally entitled to both income and capital.

*2.*Because his Honor erred in directing the debts to be *80paid out of the body of the estate, when it is respectfully submitted, that from a fair construction of the whole will, it is evident it was the intention of the testator to keep his whole estate together, for the purpose of paying his debts and defraying the expenses of his children’s education, and also to accumulate for their benefit, but not to be enjoyed until their marriage, or attaining full age, and the executors have so managed the estate as to carry out that intention of the testator to the fullest extent.

*Wilson,*for complainant.

*Garlington, Fair,*contra.

The opinion of the Court was delivered by

Johnston, Ch.

The plaintiff’s appeal appears to be met by the case of *McCorkle vs. Black,*(7 Rich. Eq., 407 ;) and, as counsel have not attempted to distinguish between this case and that, I shall say no more on that ground of appeal.

The principal controversy has been upon the appeal of the defendants.

The effect of the will is to give a life estate to the testator’s daughters, (one-half to each,) in the body of the estate:— which, necessarily, vested in them the income attached to the estate given, during its continuance in them. In certain contingencies the remainder is given to their issue, as purchasers, or to the brothers and sisters of the testator. The daughters, — being only tenants for life, — have no interest, whatever, in the remainder given to their issue, more than in that which is given to the brothers and sisters, or more than if it had been given to entire strangers. The life estates and remainders are entirely distinct interests; and the owners of both are equally entitled to the full benefit of what is given them; and to the protection of the law fos its enjoyment, undisturbed and undiminished by the claims of each other. In other words, as between the daughters, in this case, and *81the remaindermen, the same rule must prevail which obtains in ordinary cases between life-tenant and remainderman.

Í may observe, by the way, that life estates are so much favored, that in certain cases, by construction of the statute of 1789, the life-tenant’s estate is protracted to the end of the year in which he may happen to die, and the income of that year added to his estate. *Leverett vs. Leverett, 2*McC. Ch., 84 ; and see *Stock vs.*Parker, Id., 376.

The testator having given, in this case, no direction respecting his debts, the question is raised whether they are dis-chargeable out of the income, which was the sole interest the daughters had; or out of the corpus of the estate, so as to throw the burden equitably on all parties, remaindermen as well as life-tenants.

In *McCaw vs.*Blewit, 2 McC. Ch., 90, 91, a line of decision was taken up, in relation to intestate estates, which has been followed ever since. In that case it was held that the valuation of advancements, with a view to partition, must be referred to the time of the intestate’s death. This was necessary to ascertain the exact amount of each distributee’s share, which fell to him at the same time.

In *Morton vs. Caldwell, 3*Strob. Eq., 161, the same principle was applied to the debts of the intestate : and it appears to me that it would be difficult to set aside the reasoning in. that case, going to shew that the creditor’s interest on the-one hand, and on the other hand the right of distributees) 'attach on the assets as then existing. Id., 164, *et seq.*

The same conclusion, upon principle, must apply, as respects debts, in cases of testacy; and, indeed, it is remarked-in *Duncan vs. Tobin,*Dudley Eq., 165, that, substantially, and equitably, the creditors of a testator’s estate, own a portion of the estate proportioned to their claims at testator’s death, and the residue only belongs to the legatees.

Bearing this principle in mind, let us endeavor to apply it, as it must operate between life-tenant and remainderman. The rule as between such parties, arising from debts of the *82testator, is well stated in *Warley vs.*Warley, Bail. Eq., 398, to the effect, that the life-tenant must keep down the interest: — and, if the debts are to be paid, such part of the estate as is necessary for the purpose, — or, if indivisible, the whole, must be sold, and the surplus, after paying debts, should be invested to the uses of the will. (See, also, what is said, on the same subject, in *Duncan vs. Tobin, supra.)*

It has been urged that a prudent man would pay his debts out of the income rather than the corpus of his estate: and the same course should be pursued by his executor. I merely ask, does general experience prove that those who prefer to procrastinate and pay out of income are really prudent ? Would prudent men generally give such a direction in an exigency such as death ? And would it do to depend on ordinary executors to pursue such a course ? But it is sufficient for this case to say that the testator has given no such direction : and the ordinary rule must prevail.

I regard this question as settled, in principle, by the case of *Duncan vs. Tobin.*The only apparent distinction between this case arid that, is, that in that case the income alone is the subject of the express gift for life, by the testator; whereas in this, the corpus is given for life, leaving the income to accrue as the necessary consequence. But it is not easy to perceive why the benefits actually conferred by the will should be less or more protected on account of the mere form in which they are conferred.

It is ordered, that the decree be affirmed, and the appeals' dismissed.

Uunicin and Warduaw, CC., concurred.

*Decree affirmed.*