Wayne County NcArchives Court.....William K. Lane, John Everitt V 1843
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Guy Potts http://www.genrecords.net/emailregistry/vols/00017.html#0004214 March 19, 2015, 11:17 pm

Source: N C Reports
Written: 1843

In the Supreme Court
June Term 1843

John Everitt, Executor, Etc., v. William K. Lane Et Al

1. Where a testator gave to different legatees certain negroes by name, and then 
gave to another legatee "all the balance of my negroes which I am possessed of": 
Held, that this last was s specific legacy of slaves, as much so as if each slave 
had been named, and that the other legacies must abate ratably with this for 
payment of debts in case of a deficiency of general assets.

2. A bequest of A of "five head of horses, one yoke of oxen, three pens of hogs, 
five cows and calves, and five sets of farming tools," is rendered specific by 
the addition to each class of the designation "her choice."

3. So a bequest of "one carriage" and "one set of blacksmith tools" is specific, 
when it is shown that the testator had but one carriage and one set of blacksmith 
tools. When upon the face of the will it appears that the testator meant to 
dispose of something in kind, in the application of the bequest to its subject 
matter it may be shown that he had but one of that kind.

4. A legacy to the testator's widow of "one year's provisions" is not a specific 
but a general legacy.

This cause having been set for hearing at Spring Term, 1843, of Wayne Court of 
Equity, was at that term transmitted by consent of parties to the Supreme Court, 
upon the bill, answers and report to the master.

The bill was filed by the plaintiff as executor of Charles Hopton, and the 
legatees in the said will mentioned were made parties defendant. The bill states 
that in March, 1838, Charles Hopton departed this life, having first published 
his last will and testament in writing duly attested to convey real and personal 
estate.

The only material parts of this will are the following:
"(1) I give and bequeath unto my brother William K. Lane 150 acres of land 
adjoining his own land so as not to take any of my cleared land. Also one negro 
boy by the name of Jacob to him and his heirs and assigns forever.
(2) I give and bequeath to Barbara Ann Everitt one negro girl by the name of 
Lenar, to her and her heirs and assigns forever.
(3) I give and bequeath unto Lavinia Everitt one negro girl by the name of 
Lavinia, to her and her heirs and assigns forever.
(5) My will and desire is that three of my negroes be sold to wit Bill, Burwell 
and Edmund.
(6) I give and bequeath unto my beloved wife the following property viz., all the 
balance of my lands and negroes which I am possessed of and all my household and 
kitchen furniture; one year's provisions; five head of horses her choice; one 
carriage, one yoke of oxen her choice; three pens of hogs her choice; five cows 
and calves her choice; five sets of farming tools her choice; one set of 
blacksmith's tools, to her and her heirs and assigns forever."

The bill goes on to state that the will was duly proved, and the plaintiff 
qualified alone as executor thereof, and took into his possession all the 
personal estate of the testator. 

The bill then represents that the provision made directly in the said will for 
the payment of the testator's debts was the sale of only three slaves to wit 
Bill, Burwell and Edmund, which the plaintiff had sold, and the proceeds of their 
sale amounted to $1,505.75; that in the legacy left to his wife in the sixth item 
of the testator's will were the following slaves to wit Salisbury, etc. (naming 
them to the amount of 21), and their increase now amounting to five; that there 
were outstanding debts to a large amount due and owing by his testator, for the 
payment of which the provision made in the will was utterly inadequate; that by 
an account taken under the direction of the county court of Wayne it appeared 
that there was a balance due to the plaintiff as executor of $10,061.38, which 
sum was now due him and should be paid out of the estate of the testator, and he 
prays he may be substituted to the rights of the creditors in all respects until 
he be reimbursed for the same. 

The bill further states that the plaintiff is not advised how this sum should be 
raised out of the personal estate; that William K. Lane, Barbara Ann Everitt and 
Lavinia Everitt claim that their legacies are specific, and allege that the 
legacy in the sixth item of the will to the widow is a residuary legacy; and that 
therefore their legacies should not abate for the payment of the said sum until 
the said residuary legacy should be exhausted. And on the other hand Philip Hooks 
(who hath intermarried with the widow of said Hopton) and his wife contend that 
the legacy left the said widow is also specific and should only abate in equal 
proportions with the other specific legacies left in the said will.

The bill concludes with a prayer that the plaintiff may be advised as to the 
proper construction of the said will and as to the rights of the said legatees 
respectively, and as to the duty of the plaintiff in the premises that by a 
decree of the court he may be advised as to the true nature and legal operation 
of said bequests; that the plaintiff may be substituted to the rights of the 
creditors whom he has paid until he be reimbursed, and that an account of his 
executorship may be taken under the direction of the court.

The defendants answered severally and admitted all the allegations of the 
plaintiff's bill except that they knew nothing of his disbursements or the state 
of his accounts as executor and joined in his prayer that an account might be 
taken under the direction of the court. They severally too set up the conflicting 
claims set forth in the plaintiff's bill.

A reference was made in the court below to the clerk and master who reported that 
there was a balance due to the plaintiff as executor of $10, 190.38 on 1 April, 
1843. This report was confirmed by the Court.

Husted for plaintiff
J.H. Bryan and Mordecai for defendants

(NC Supreme Court ruling)

Judge Gaston, J. The question submitted for our decision in this case is whether, 
there being a deficiency of assets to pay the debts of the testator, the legacies 
bequeath to the defendants William K. Lane, Barbara Ann Everitt and Lavinia 
Everitt shall abate ratably with the legacy bequeathed to the defendant Elizabeth 
Hooks, formerly the wife of the testator, or whether the burthen of meeting this 
deficiency shall be thrown exclusively on the latter. As it is indisputable that 
the legacies to the first named defendants are specific, the solution of this 
question depends upon the inquiry whether the legacy to the testator's wife be 
specific also.

A legacy is specific where it is a bequest of a specific part of the testator's 
effects, so distinguished from the rest thereof that upon the assent of the 
executor the property in the thing bequeathed vest in the legatee - an individual 
legacy, which cannot be satisfied but by the delivery of the identical subject. 

On the examination of the bequests in favor of the defendant Elizabeth it will be 
found that all the things therein mentioned are enumerated as parts of the 
testator's property: "I give and bequeath to my beloved wife the following 
property, viz, all the balance of my negroes, etc.," and with the exception of 
what may be comprehended under the description of "one year's provisions" they 
are as distinctly specified as the things which are named in the bequests to the 
other defendants. The gift of "the balance of my negroes which I am possessed of" 
is a gift of each of the testator's negroes not previously named. The bequest of 
"five head of horses, one yoke of oxen, three pens of hogs, five cows and calves 
and five sets of farming tools," is rendered specific by the addition to each 
class of things of the designation "her choice." The "one carriage" and the "one 
set of blacksmith's tools" intended by the testator are put beyond doubt by the 
admitted fact that he had but one carriage and one set of blacksmith's tools. 
When upon the fact of the will it appears that the testator meant to dispose of 
something in kind, in the application of the bequest to its subject matter it may 
be shown that he had but one of that kind to be disposed of. But that part of the 
legacy to his widow which is embraced within the terms "one year's provisions" 
cannot we think be deemed specific. If it refers to a corpus it designates no 
particular part of that corpus but gives so much thereof as may be adequate for 
her subsistence for one year.

It is true that in cases of intestacy and in cases of testacy where the widow 
records her dissent from the will of her husband the law assigns to the widow a 
year's provision out of her husband's estate in preference even to the demands of 
creditors. And it can scarcely be questioned but that this part of her legacy was 
given by the testator by way of analogy to the year's provision so assigned by 
law. But here she takes the "one year's provision" as of his bounty therefore as 
a legacy and of consequence subject to the payment of his debts. And being a 
legacy it must be determined to be a specific or general legacy by the same rules 
which govern in discriminating between legacies in other cases. 

There should be a reference to ascertain the values of the respective bequests of 
personal property made by the testator, and it must be declared that the 
defendant Elizabeth is bound in the first place to satisfy the demand of the 
plaintiff to the extent of the value of the year's provision she may have 
received and that the residue of the plaintiff's demands is to be satisfied out 
of the other parts of the legacy to the said defendant and the legacies of the 
defendants William, Barbara and Lavinia, pro rata.

Per Curiam                Decreed accordingly


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