Wake County NcArchives Court.....Mildred A. T. Powell, Thomas B. Powell Et Al V. 1849
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Connie Ardrey n/a January 12, 2010, 9:50 pm

Source: Nc Reports
Written: 1849

Thomas B. Powell et al v. Mildred A. T. Powell
June Term, 1849

A. devised and bequeathed as follows: "It is my will and desire that my 
executors hereafter named dispose of such of my property, at public or private 
sale, real or personal, for the purpose of raising money sufficient to pay my 
debts." Held, that by this clause, the land is made a primary fund, at the 
discretion of the executors, for the payment of debts; that the price of the 
land became personalty as soon as it was sold, and, being a primary fund for 
the payment of debts, the personal estate is not liable to make good to the 
real estate the amount that has been so applied, and, if any part of the price 
of the land is undisposed of, that is now a part of the personal estate.

The testator then directs that his property, remaining after payment of his 
debts, should be kept together for the maintenance of his wife and unmarried 
children, and also for the education of his unmarried children. The widow made 
advances out of her own funds for the maintenance and education of her younger 
children; Held, that she was entitled to be reimbursed out of the general fund.

The testator also directs the balance of the property, as above mentioned, to 
be divided as follows, to wit, one share to each of his children, (except two 
sufficiently provided for in his life time,) as they should respectively come 
of age or marry. Rosa, one of the children, died under age and unmarried; Held 
that this share must remain with the common fund, until such time as she 
would, if living, have arrived at full age; when it may be called for by her 
personal representatives, and held subject to the rights of her distributees.

Cause removed from the Court of Equity of Wake County, at Spring Term, 1849.

The parties are the devisees and legatees of Jesse Powell, deceased. Two of 
the defendants are also executors. The bill is filed to obtain a construction 
of the will; and the plaintiffs pray for an account, and to have their shares 
allotted. Rosa Powell, one of the testator's children, died under age, and 
would not now be of age, if living. There were nine children, including Rosa. 
The widow, Mrs. Mildred Powell is entitled to a child's share of the 
personalty. Two of the children are fully advanced; so that the partition will 
make eight shares, excluding the two children, who have been advanced, and 
including Rosa.

The following is a copy of the will of Jesse Powell:

I, Jesse Powell, of the County of Wake and State of North Carolina, do make 
and publish as my last will and testament as follows, viz:

1st: It is my will and desire that my executors hereafter named dispose of 
such of my property at public sale, real or personal, as they may think best 
for the interest of my estate, for the purpose of raising money sufficient to 
pay my debts.

2nd: I give unto my son, John D. Powell, two negro men by name Alfred and 
Moses valued at eight hundred dollars each; a woman by name Rachel and her two 
children by name Ellen and Sidney valued at twelve hundred dollars and their 
increase from the time I put them in his possession to him and his heirs 
forever. Also other property to the amount of five hundred and seven dollars 
all of which will fully appear by reference to my guardian book. All of which 
said property hereby given has by him been received and in his possession.

3rd: I give unto my daughter Rebecca A. Hilliard, one negro man by name Henry 
valued at eight hundred dollars; one girl by name Ellen valued at six hundred 
dollars; a woman by name Cloe and her three children by name Lipsia, Ailsey, 
and Jane valued at fourteen hundred and fifty-nine dollars and their increase 
from the time of their delivery to my said daughter Rebecca. Also other 
property to the amount of two hundred and fifty-five dollars, all of which 
will fully appear by reference to my guardian book, which will show the 
amount. All of which said property hereby given has been put in her 
possession, I give to her and her heirs forever.

4th: After the payment of my debts as aforesaid, whatever of my estate may 
remain, either real or personal except the property already advanced to my son 
John and daughter Rebecca, I wish kept together and managed by my executors, 
as they may think best for the maintenance of my wife and unmarried children. 
I also wish my wife and children who are under age or unmarried should live 
together and be supported out of the property and at the discretion of my 
executors and my children to be educated out of the proceeds of the estate in 
hand with an education, at least, equal to those that I have already educated, 
without an extra charge.

5th: My wish is, when one of my children marries or arrives to a lawful age, 
that my personal estate be divided into one share more than there are 
children, who have not received their portion of my estate, by five discreet 
persons to be appointed for that purpose by the County Court, any three of 
which to act the same, as if all five were present; and my wife to take her 
first choice of lots, and then one share to be divided out and given to him or 
her, for whom divided; the remainder to be kept together until another arrives 
at age or marries, and the same proceedings to be had in every case, as they 
respectively arrive at age or marry. I further wish my wife to have her share 
out of my estate at any time she may see proper to desire it.

6th: In case my wife should think proper to marry, I desire that she be 
allowed one third of my real estate, if not previously sold by my executors, 
during her life, and the balance of my estate of every description, (the land 
excepted) then on hand, to be divided between her and all of my children, who 
have not been provided for. Also after her marriage, for my children to remain 
with her, and their respective portions of my estate also, or otherwise to be 
removed into the hands of a guardian, as my executors may see proper and most 
advisable for the interest of my children.

7th: At the death of my wife, should any land remain unsold, I desire that my 
executors should expose it at public sale, giving one or two years credit with 
interest from the date of sale; and the proceeds arising therefrom to be 
equally divided between all of my children, or their lawful representatives. 
Also, every species of property, except the negroes, which may remain 
belonging to my estate not before disposed of I desire to be sold and an equal 
division of the proceeds thereof to be equally made between all of my children 
aforesaid, or their lawful representatives.

8th: Now I wish this my last will to be understood, that on a final division 
of my estate of every denomination whatever, my children be made equal heirs, 
share and share alike; and as John and Rebecca have had about sixty dollars 
each advanced to them, that is not before mentioned in this will, I wish that 
each of my younger children to have sixty dollars allowed to them extra, in 
the price of a horse, valued to them as in money; and if I should advance any 
of my children any property or money, after the date of this will, I shall 
charge it to them in my guardian book; which I wish them to be charged with on 
a settlement of my estate.

9th: I nominate and appoint my wife Mildred A. T. Powell executrix and my son 
John D. Powell and my friend John Ligon executors to this my last will and 
testament, revoking all former wills by me made.

In Witness whereof, I the said Jesse Powell have hereunto set my hand and seal 
this 12th day of February, in the year of out Lord A.D. 1842. All corrections 
made before assigned.

The executors have sold the land and applied the proceeds of the sale to the 
payment of the debts. The fund on hand consists mostly of negroes. The 
executor John D. Powell alleges in his answer, that the debts are not yet all 
paid and remain a charge upon the estate. Mrs. Powell, who is also an 
executrix, alleges, that she is in advance out of her own funds for the 
maintenance and education of the younger children, after applying the profits 
of the unsold part of the estate to those purposes, with the exception of a 
large amount received for the hire of negroes, which has been applied to pay 
the debts of the testator.

The negroes have been divided by an order of the Court below, into eight 
shares, and such of the children as are married or of age have had their 
shares allotted. The shares of the widow and the children, who are unmarried 
and under age, remain in common. No exceptions are filed to the report of the 
commissioners who made the division.

G. W. Haywood, for the plaintiffs
W. H. Haywood, for the defendants

[NC Supreme Court]
Pearson, J.
The report of the commissioners will be confirmed, and a decree for the 
plaintiffs to receive the shares allotted to them, subject to contribution for 
the liabilities above stated. The costs will be paid out of the fund in the 
hands of the executors.

Per Curiam
Decree accordingly

[See court case for Judge Pearson's complete findings]

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