The evident construction of this will is that after the life estate is exhausted, the executors shall sell the property for the benefit of the children. The assent operates only upon the life estate; because, before the remainder can vest in the children, a sale must take place. It is the circumstance by which this case is distinguished from the common cases, where an assent to the first taker vests the property in the remainderman. The executor must be considered as trustee for the purposes of the sale and distribution amongst the children, and therefore have a right to recover. Judgment for the plaintiff.
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ALLENv. WATSON,5 N.C. 189(1808)
THE EXECUTORS OF ALLEN v. WATSON.
Supreme Court of North Carolina
A bequeathed negroes and other personal property to his wife during her life; and after her death to be sold and equally divided among his children. After her death, B converts the property to his own use. The executors of A can bring trover for this conversion.
THIS was an action of trover, brought for certain horses, cattle and sheep bequeathed by the plaintiff's testator to his widow, in the words following, to wit: "I give and bequeath unto my beloved wife, Elizabeth Allen, six negroes, to wit, Idy, Fib, Nazora, old Jack, Nimbri and Squire; also, three horses, one by the name of Voltaire, one by the name of Brandy, and one by the name of Ball; also, ten cows and calves, eighteen head of sheep, four feather beds and furniture, and four lots in the town of Smithfield, known and distinguished by the numbers 8, 9, 10 and 11, during her natural life,and after her decease to be sold and equally dividedamong my children."After the death of Elizabeth Allen, the widow, the defendant converted the personal property, mentioned in the above bequest, to his own use. The defendant at the time of the conversion was guardian to four out of five of the testator's children. It was contended on behalf of the defendant that the executors of Allen, after their assent to the bequest for life, had no property in the articles converted, and could not bring trover to recoverPage 150damages for the conversion; and it was referred to this (190) Court to decide whether the plaintiffs can support this action.
TAYLOR, J., delivered the opinion of the Court.
The evident construction of this will is that after the life estate is exhausted, the executors shall sell the property for the benefit of the children. The assent operates only upon the life estate; because, before the remainder can vest in the children, a sale must take place. It is the circumstance by which this case is distinguished from the common cases, where an assent to the first taker vests the property in the remainderman. The executor must be considered as trustee for the purposes of the sale and distribution amongst the children, and therefore have a right to recover. Judgment for the plaintiff.Cited: Acheson v. McCombs,38 N.C. 555;Baines v. Drake,50 N.C. 154;Windley v. Gaylord,52 N.C. 57;McKay v. Guirken,102 N.C. 24.