Green, Ex'r v. . Green .

1. Exception of defendant Winslow: The only ground on which it can be contented that Robert N. Green (the plaintiff) should be charged with the value of Norwood or with half his value, is, that by purchasing from John the half given to him, and by subsequently keeping him in his own exclusive possession, he thereby took him out of the general mass of the property, and converted him to his own use. We do not think that what he did, amounted to such a conversion. The other slaves remained in the possession of the respective executors, to whom the testator had given them, until their emancipation, and we decided in Fike v. Green, 64 N.C. 665, that the continuance of a possession, begun in the testator's life time, did not, under the circumstances, amount to a conversion, such as to make the executors liable for their value. The circumstance which differs the case of Norwood from that of the other slaves, is, that he was directed to be sold, and the proceeds divided between Robert and John. But no sale was made. What was done, amounted only to a division of the common property. If two slaves had been so given, and an actual division had been made, each legatee taking one, the mere division could scarcely be thought to take the case out of the general rule. Nor would the fact that one party paid a sum to the other for equality of partition, and there can be no substantial difference when one purchases the entire interest of the other, an actual partition being impossible. We think the plaintiff is not chargeable with any part of the value of Norwood. Second and third exceptions: We think the plaintiff is chargeable with the value of the services of Norwood, and of all the other slaves, which he had and kept in his employment after the testator's death up to their emancipation. The value of the services is what they could have been hired out for, after deducting the support of those who were unable to earn anything. This value was actually *Page 28 received by the plaintiff, and went into his estate. It is assets which have not been lost, but converted. The account will be reformed in these respects. A sale of the land, or of some part thereof is evidently necessary, and the case is remanded in order that the proper proceedings may be had for that purpose. The debt which will remain after the application of the personality, is a charge on all the lands devised by the testator, according to the value of each devise. It will be for the District Judge to determine how this distribution of the burden shall be made most advantageously to all the parties. Perhaps the parties may agree on the valuation of of their respective lands, and proportion the burden accordingly, and so make any sale unnecessary.