Opinion
(December Term, 1842.)
A by his will devised, among other things, as follows: "I devise that my lands, known by the name of the Lee and Dorch places and Stephen Brown place, and all the rest of my lands not disposed of, be sold or rented at the discretion of my executors to the best advantage of the heirs, and to be disposed of at the will of my executors, and the proceeds of the same, and my money, notes and crop and stock to be disposed of as the law directs": Held, that under this clause the personal property was to be divided among such persons and in such proportions as the statute of distributions would have prescribed, if the decedent had died intestate as to this property, but, as the property is taken under a devise in the will, advancements are not to be brought into hotchpot: Held, also, that the real estate was not directed by this clause of to be converted out and out into personalty, and that it is devised to those who would have been the heirs at law of the testator if he had died intestate; and that here also no advancements were to be brought into hotchpot.
THIS bill was filed at Fall Term, 1842, of JONES Court of Equity, by two of the plaintiffs as executors of Isaac Brown, deceased, and by the two others of his heirs and next of kin, against the defendants, who were the other heirs and next of kin. The object of the bill was to obtain the advice of the court upon a certain clause in the will of the said Isaac Brown. The defendants answered; and the cause, being set for hearing upon the bill and answers, was transmitted, by consent of parties, to the Supreme Court. The clause of the will upon the construction of which the doubts arose is recited in the opinion delivered in this Court.
J. H. Bryan for plaintiffs.
No counsel for defendants.
Isaac Brown by his will devised and bequeathed to his wife and children, severally, lands and personal property. And he then concluded his will thus: "I desire that my lands known by the name of the Lee and Dorch places and Stephen Brown places, and all the rest of my land not disposed of, to be sold or rented at the discretion of my executors to the best advantage of the heirs, and to be disposed of at the will of my executors, and the proceeds of the same, and my money, notes and crop and stock to be disposed of as the law directs." The executors, in their bill, ask the court to put a construction on this residuary clause in the will and to declare who are entitled to the property contained in it. We think that, as to the fund made up of the money, notes, crop and stock, it is plain that the testator has bequeathed it to a class of legatees who are to be ascertained by learning who would take under the statute of distributions. They are the persons whom the law would direct to take if Isaac Brown had died totally intestate. These persons take as legatees, including the wife, children, and the children of deceased children, at the death of the testator. The testator has not directed the fund to be equally divided; therefore, the persons to take as legatees, and the proportions they are to take must be determined by the statute of distributions; they do not take per capita. Freeman v. Knight, ante, 76; Croom v. Herring, 11 N.C. 393. Secondly, the testator has not directed that the lands mentioned in this clause should be converted out and out into money and mixed with the personal estate. He has only given his executors power to sell or rent, as may be for the best advantage of the heirs. The following words in the clause, "to be disposed of at the will of my executors and the proceeds of the same, and my money, notes, crop, etc., to be disposed of as the law directs, "were only meant to give the executors power to make partition among the legatees and devisees, instead of expense being incurred in having the same done by commissioners ordered by court. The intention was that the executors should divide the lands and rents, for the money arising from the sales of the lands, if the executors should think proper to sell them, among the heirs in such proportions as they would take by the statute regulating (311) descents of real estate; and to divide the personal fund among such persons and in such proportions as are prescribed by the statute of distributions, if it had been a case of intestacy. The executors have not an arbitrary discretion. They are to dispose of both funds "as the law directs."
Thirdly. This is not a case in which advancements are to be brought into hotchpot. With respect to personal property it is clear law that there are not advancements in cases of partial intestacy. There would, therefore, have been no ground for requiring advancements to be brought into hotchpot in the present case, so far as the personalty is concerned, had this been a case of partial intestacy. But we hold, as has been heretofore stated, that there is in this will a disposition of the whole personal estate. It was determined in Norwood v. Branch, 4 N.C. 400, that the law was otherwise when there was a partial intestacy with respect to lands. We forbear from giving a direct opinion on the doctrine there asserted. It has certainly not been satisfactory to the profession, and, we have reason to know, was afterwards disapproved of by those who made the decision. But, if that case be law, it does not apply when the testator has in his will made a disposition of all the proceeds of lands which have not been given away in specie.
The decree will be drawn accordingly.
PER CURIAM. Decreed accordingly.
Cited: Person v. Twitty, 28 N.C. 118; Johnson v. Johnson, 39 N.C. 11; Bost v. Bost, 56 N.C. 487; Jenkins v. Mitchell, 57 N.C. 210; Pruden v. Paxton, 78 N.C. 448.
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