Litaker v. . Stallings

Stagy, C. J. The case presents for construction the will of Mrs. M. M. Litaker. Item 1 provides for the payment of debts. “Item 2. I will and bequeath to my beloved son Chas. L. Litaker five hundred dollars. “Item 3. I will and bequeath to my beloved daughter Louise Y. Litaker all of the rest of my proj>erty both real and personal of whatsoever kind.” Item 4 names Ohas. L. Litaker as executor. The personal property is not sufficient to pay the decedent’s debts and the costs of administration. Louise Y. Litaker predeceased the testatrix and left no issue her surviving, hence the devise to her in Item 3 of the will lapsed. 28 R. C. L., 336; Note, 44 L. R. A. (N. S.), 814. The respondents, who are also children of the testatrix, claim the land, devised in Item 3, as tenants in common with their brother, Chas. L. Litaker. The only question presented for decision is whether the specific bequest of $500 to Chas. L. Litaker is to be paid out of proceeds derived from a sale of the land, which it must be, if paid at all, because the personal property is not sufficient to pay the decedent’s debts and the • costs of administration. . Conceding that the decisions elsewhere are variant, as counsel point out in their briefs, the rule in this jurisdiction is, that when in a residuary clause land and personalty are made a mixed fund, both may be resorted to for the payment of pecuniary legacies. “This, however, is not on the footing of a charge on the land,” says Pearson, C. J., in Robinson v. McIver, 63 N. C., 645, “but on the ground that in order to ascertain what is embraced in the residuary fund, it is necessary to take out the specific legacies and then to deduct the pecuniary legacies, and only what remains is The rest or residue of the estate.’ ” Johnson v. Farrell, 64 N. C., 266. See Rinehart v. Rinehart, 98 W. Va., 93, 126 S. E., 402, reported in 42 A. L. R., 649, with full annotation. Where a lapse is brought about by the death of the legatee or devisee, as in the instant case, the intent of the testator may be ascertained by striking out the name of such legatee or devisee and inserting in lieu thereof the names of those entitled to take, whether they come into such right by descent or under the will, for while the legacy or devise, as *8 such, lapses, it may nevertheless be used to discover the intent of the testator. Robinson v. McIver, supra.. In this respect, McGehee v. McGehee, 189 N. C., 558, 127 S. E., 684, is distinguishable, the whole will in that case being void. We agree with the trial court that the will reveals an intent on the part of the testatrix that the specific bequest to Chas. L. Litaker in Item 2 should be paid out of her property real or personal. Hill v. Toms, 87 N. C., 492. Affirmed.