Little v. . Hagar

Rodman, J. Two questions are presented in this caset 1. Was the legacy of $400 to Mary Little paid? She was an Executrix and received assets to an amount greater than lief legacy, but as it finally turned out, not sufficient to pay th< debts and legacy. Much of the money received was Confederate, and she invested $400 of this in Confederate bonds, which we.e made payable to her as Executrix. We think neither of these circumstances amount to a payment. She had no right to apply any oí the assets to her legacy until all the debts were paid. She was not obliged to take payment in Confederate money. And there is no proof that she elected to do so. The investment in Confederate bonds’ may have been because the creditors would not receive Confederate money. The mere identity of the amount invested with that of her legacy is of no importance, since the *139 bonds were expressly taken in her representative character and on account oi the estate. 2. Is the legacy a charge on the lands devised ? or, to speak more accurately, does it go to diminish the lands devised ? The will gives to Mary Little $400, and proceeds : “ Secondly, I will and bequeath to my sister Elizabeth Little to pay all my just debts, and to have all the balance of my estate and property of every kind, after pacing my just debts.” We think the question must be answered in the affirmative, on the authority of Robinson v. McIver, 63 N. C. 645, approved in Johnson v. Farrell, 65 N. C. 267. It is in conformity with the English cases cited in 2 Jarman on Wills, 532, especially Hassell v. Hassell, 2 Dich. 526, Bench v. Biles, 4 Mad. 187, and Cole v. Turner, 4 Russ. 376. It can' make no difference, that the personalty was originally sufficient to satisfy both debts and legacies, if it was. after-wards lost without fault of the legatee. The doctrine must be applied to the property as it turned out to be. The other cases cited for defendant, we think, do not apply. The judgment below is reversed, and the case is remanded to be proceeded in according to law. Per Curiam. Judgment reversed.