In Re the Administration of the Estate of Knowles

CONNOR, J. We concur with the order made by his Honor affirming the action of the Clerk. It is settled' that the court will not remove an executor by reason of insolvency, when such condition existed at the time the will was executed and was known to the testator, unless it appears that he is wasting or misapplying the assets. Barnes v. Brown, 19 N. C., 401; McFadgen v. Council, 81 N. C., 195. In the absence of any such reason, or any well-grounded apprehension that adevas-tavit will be committed, a bond will not be required. The Clerk in this case finds that the property sold 'by the executors has been duly accounted for and the debts paid, and the accounts filed and made a part of the record sustain the finding. The petitioners, however, insist that by delivering to the widow the personal property not sold, including the money on hand, the executors have committed a devastavit. They contend that it was the duty of the executors to have sold the property and with the proceeds, together with the money on hand, created a fund, to be invested during the lifetime of the widow, paying to her the interest, to the end that upon her death the corpus be paid to them. The learned and diligent counsel cited to us a number of cases which he con *465 tended sustained bis view. -It is, of course, tbe duty of tbe court, in all'cases involving tbe construction of a will, to ascertain and effectuate tbe intention of tbe testator. This, it bas been wisely said, is the “pole star” by which tbe court will be guided. "While this statutory proceeding is not in a strict sense a suit to have tbe will construed, it becomes necessary to do so for tbe purpose of ascertaining whether, in delivering tbe property and paying the money to tbe life tenant, tbe executors have committed a devastavit. For this purpose only, and not for tbe purpose of concluding the parties in interest in any other properly instituted proceeding, we proceed to consider tbe duty of the executors tinder the provisions of thfe will. In Smith v. Barham, 17 N. C., 420, Ruffin, C. Jdiscussed the question respecting the duty of the executor when specific articles are given to one for life, with remainder over, and when, after disposing of his estate by specific bequests, the testator gives the residue to one for life, with remainder over. "While conceding tbe difficulty of carrying out the intention of the testator in “most cases” by following the “positive and ancient rule of the common law,” be concludes, that “When a residue is given as such, it is to be sold by the executor. The several things are not given, the testator supposing them not worth giving as corpora, not knowing how much or which of them it may be- absolutely necessary to sell "for payment of debts and pecuniary legacies. When there is a gift of a specific chattel for life, and then over, the executor may assent to tbe legacy and discharge himself from liability to the remainderman by delivering it to tbe tenant for life, for tbe assent to that legacy is an assent to the one in remainder.” The Chief Justice notes that it was formerly held that the executor should take from tbe legatee for life a bond that tbe article should be forthcoming at his death, but that now, unless there is collusion, the life tenant is only required to give a receipt *466 to tbe. executor, unless there is cause to believe that the article will be destroyed or sent away. The rule laid down in Smith v. Barham was followed in Jones v. Simmons, 42 N. C., 178. As in Barhamts case, there was a gift for life of the residue, subject to the payment of debts. In Ritch v. Morris, 78 N. C., 377, the gift for life was subject to the payment of debts and charges of administration. Judge Bynum, with his usual industry and clearness, reviews the cases which, at first glance, appear to be conflicting, and shows that they follow the distinction made or rather pointed out in Smith v. Barham, supra. Referring to the cases in which the executor was directed to deliver to the legatee for life the articles bequeathed, he says: “There being no bequest of a general residue for life, these latter cases have no application, and Smith v. Barham, supra, stands unopposed to any of the cases we have reviewed.” We note some of the cases referred to by Judge Bynum. In Tayloe v. Bond, 45 N. C., 5 (25), Pearson, J., referring to Barham's case and, Jones' case, supra, says: “In those cases a mixed and indiscriminate fund is given as a residue to one for life, with a limitation over.” Enumerating the distinctive features of the several wills, he says: “The very object of the gift is that Mrs. Ashburn may be supported by the use of the property." The same conclusion was reached, for the same reason, in Williams v. Cotten, 56 N. C., 395. In Chambers v. Bumpass, 72 N. C., 429, the bequest was “all of the residue of my estate,” etc. Pearson, G. J., finds in this language “the intention of the testator that the plaintiff should enjoy the use of his house, furniture, farming implements, specifically, during her life or single state, and not that she should have the interest or what it should sell for.” He says: “This is not a residuary legacy, but a universal legacy.” The Chief Justice cites none of the authorities. It- is not necessary that we shall inquire whether the decision is in harmony with Smith v. Barham; in any view it sustains the judgment in *467 tbis appeal. In Hodge v. Hodge, 72 N. C., 616, there was a legacy of money for “the use and benefit” of one for life, remainder over. The Court held, upon the authority of Camp v. Smith, 68 N. C., 537, that the executor should pay the money to 'the legatee without requiring bond. Settle, J., says: “The principle seems to be that, as the testator has entrusted him with the money without requiring security, no person has authority to do so.” In Britt v. Smith, 86 N. C., 305, the testator gave to his -wife “all of my personal property” during her natural life or widowhood, and after her death or widowhood, over, etc. Ruffin, J., reviewed the authorities, saying: “So far as we have been able to inform ourselves, from a critical examination of all the adjudications upon the subject to which we have access, no operation has in any instance been given to the rule (in Barham’s case), save in the case of a residuary bequest given eo nomine as such.” The language of the learned Justice is so appropriate that we quote it as conclusive of this appeal. He says: “We are struck at the very outset with the strong purpose manifested by the testator to make an ample and certain provision for his wife. 13y one comprehensive clause he gives her all his lands for life, and, with the slight exceptions indicated, all his personalty, the latter consisting in a great degree of articles absolutely essential to the enjoyment of the former and, indeed, we may say, necessary to her immediate comfort and support, and such as she could not supply, in the event of a sale, without incurring debt ,or other inconvenience.” The language of the will in this appeal, the age of the wife, the inventory showing the character of the property bequeathed, all point with unerring certainty to the intention of the testator. It is the expression of the purest and highest sentiment and manifest duty of the husband to provide for the comfort and welfare of the wife, free from molestation or interference on the part of those whose duty it is to be her aid and comfort, after a lifetime spent in their *468 rearing and support. It would do violence to tbe testator’s sense' of obligation and duty to so construe this provision for his widow as to strip her of the substance gathered by their joint industry and frugality, sell the household and kitchen furniture, not only necessary to her comfort, but'having sacred association with her married life, its joys and sorrows. To give her land and leave her without supplies, implements, teams and other necessary property to make it contribute to her support would be most unreasonable and unjust. The property and money are hers, to use for her support and comfort. The executors properly delivered them to her. They have paid the debts and funeral expenses and, so far as this record shows, freely discharged their duty according to law. She is entitled to use the property, including the money to supply her needs, for her support in the state and manner suited to her age, health and condition in life. The inventory shows what she has received, and what has not been consumed in the use will at her death go to the petitioners. But it is said that she claims it all as her own, to do with as she pleases, and should therefore be required to give security. His Honor’s judgment fully protects them. Complaint is made that the costs are taxed against the petitioners. The Clerk’s findings of fact, sustained by his Honor, show that they were overanxious about the widow’s legacy. Railing to sustain the charge of misconduct, it is but just that they pay the cost. The statute so directs. The judgment is Affirmed.