Fike v. . Green

Dick, J. Tbe first exception to tbe report of tbe Eeferee is, that be did not charge tbe executors with tbe value in 1863 of seventeen negroes belonging to tbe estate of tbe' testator. It appears in evidence that tbe testator died in April 1863, leaving no personal property except tbe seventeen negroes mentioned in tbe exception, and they bad been put into tbe possession of bis children sometime before bis death. There were a few small debts against tbe estate, and these were paid off by tbe executors. Tbe testator was surety to tbe debt of tbe plaintiff, and the principal, John *667 M. Green was amply solvent until Ms slaves were emancipated. The plaintiff would not present her debt, as she would not receive Confederate money. Under such circumstances, the defendant acted prudently in not selling the negroes for Confederate money, which could not he used to advantage, .and was rapidly ¡[depreciating in value. The subsequent emancipation of the negroes ought not to result in injury to the defendants. This exception was properly overruled by his Honor : Finger v. Finger, ante 193; Kerns v. Wallace, Ib. 189. The ruling of his Honor as to the second exception, was also correct. The real estate was not assets in the hansd of the executors: Floyd v. Herring, ante 409. Where a will directs real estate to be sold for the payment of debts, .and an executor fails or refuses to execute such trust, he may be compelled to do so by special proceedings properly instituted : Wadsworth v. Davis, 63 N. C., 251. The law requires an executor or administrator, where there is a deficiency of personal assets, to obtain a license from Court to sell the real estate of the deceased, and the proceeds of sale, when received, become assets for the payment of debts. If the personal representative neglects this duty, its perform■ance may be enforced by a creditor. As the land devised to John M. Green was sold within two years from the death of the testator, the alienation is void as to creditors, (Eev. Code, ch. 46, s. 61) and the executors can be compelled to sell it for the payment of the debts of the deceased. We cannot see from the evidence reported, that the executors have been guilty of any laches which has prejudiced the rights of the plaintiff. There is no error. Per, Curiam. Judgment affirmed.