Tyson v. . Walston

Dillard, J., after stating the case. The intention of the testator was, and such we think is the legal effect of the will, *94 to dispose of his estate of every kind. After giving real and personal property specifically described to his sons, Joseph A. and J. J. Walston, he devised his home place and all the residue of his estate not given to them, to his three daughters, charged with his debts and two pecuniary legacies, one to his step-son and the other to his wife. This being done, clearly there would be no debts or liabilities contracted by the testator to pay, and nothing left in the hands of the executors as such, to pay with. Hence it would seem to have been the purpose of the testator to put his entire estate as soon as possible in the devisees and legatees respectively, including the residuary fund to the daughters after paying his debts and the two pecuniary legacies, and not to have continued it as a trust in the executors to be answerable out of his general assets for the possible debts contracted on behalf of his daughters in the conduct of the farm devised to them, which might come as a burden on property specifically willed to others. This view of non-liability of the estate of the testator for the possible debts contracted for labor on the farm devised to the daughters, is put beyond question, when regard is had to the manner of the devise and the special directions given by the testator in reference to the management of their property. The gift is of the home tract of land of four hundred acres, presently enjoyable by the daughters as an actual residence, and to be kept in common until the full age of the youngest, with the support and education of each from the annual income from the sale of crops to be made under the management and direction of their guardians, who are appointed in the will and are the same persons who are named executors therein. And to the end that there may be income from crops raised on the farm, the testator empowers the guardians “ from time to time to purchase farming implements, teams, and such other things as may be necessary for that purpose, and to employ laborers *95 at wages in money or a portion of the crops, as they may deem best.” From this provision of the will, we take the intention to be clear that the land was to vest in possession at the death of the devisor, and to pass at once into the managémént of the guardians,' and be. worked under their control and direction; and that the expectation was, that the crops raised after paying all expenses in producing them, including the payment of wages to laborers, would yield a surplus adequate to educate the daughters. We. think therefore the true intent and meaning of the will is, that the trust of conducting the farm and paying expenses thereby incurred was put on W. Walston and J. J. Walston in their characters as guardians, and that the means for such purpose, was to be derived from the sale of. crops, or money in their hands as the net surplus of the residuary-fund belonging to the daughters. Seeing then that the plaintiff cannot look to the personal representative, of Jeptha Walston, on the notion that the will created a trust for the payment of his and such like debts, there can be no action against him in any other view, because no executor or' administrator can be subjected in his representative capacity on any demand created or originating wholly after the death of his testator or intestate. Kerchner v. McRae, 80 N. C., 219; Hailey v. Wheeler, 4 Jones, 159; Devane v. Royal, 7 Jones, 426; Kessler v. Hall, 64 N. C., 60; Hall v. Craige, 65 N. C., 51. How then is the plaintiff to be paid ? He ought to be paid his debt by some one. The labor and advances of the plaintiff for which this action is brought, were rendered and furnished on the land devised to the three daughters; but it was at the time when J. J. Walston, the surviving guardian and then the owner by purchase of the shares of Martha and Amanda, was living on the land with Della, now the ward of J. R. Thigpen, and therefore it .is to be taken that the debt was- made upon an .express or .implied *96 contract with J. J. Walston, who was then occupying and conducting the farm for himself and Della. J. J. Walston being in possession and conducting the farm for himself and Della, and contracting with the plaintiff as we have seen, the liability was on him in his life time, and on his administrator since his death to pay the plaintiff, with the right in accounting with Della in respect of her third interest in the crops sold and other assets embraced in the residuary fund, to take a proper credit on account of the plaintiff’s debt, that is, for one-third thereof. Della being in wardship is not herself personally responsible, nor Thigpen, her present guardian, but only the administrator of J. J. Walston. Where there is a guardian, the infant cannot contract even for necessaries. And hence the contract of the plaintiff, express or implied^ must have been made with J. J. Walston, her then guardian, and his cause of action was against him in his life time, and against his administrator since his death. Fessenden v. Jones, 7 Jones, 14, and cases cited. The conclusion then is, that His Honor erred in adjudging Joseph A. Walston, as administrator d. b. n. with the will annexed of Jeptha Walston, to be responsible for the plaintiff’s demand, and the judgment below to that effect is reversed. Error. Reversed.