#### ROBERT N. JOHNSON Guard’n, &c. v. JOHN T. FARRELL, Ex’r. and others.

A testator died in 1864, leaving lands, and a sufficiency of personal estate to pay debts and legacies; by Emancipation the latter afterwards became insufficient; after giving some money legacies, and devising certain lands &c., to his wife for life, the testator had given to others “all my real and personal estate not heretofore disposed of Upon a question between the claimants of the money legacies, and those who claimed the land under the last provision, Held, that the loss subsequent to the death, fell upon the legatees, and not upon the devisees.

(Robinson v. McIver. 63 N. C. 645, cited and approved.)

Action for a legacy, tried before Tourgee, J., at Eall Term 1869 of Chatham Court.

The facts were that one James 0. Burke, the defendant’s testator, died in 1864, leaving a will by which he gave to his wife two slaves and other personalty, also some land for life; then, to one grand child, $400, and to others, amongthem, $500; and afterwards, to his four living children, naming them, ‘‘all my real and personal estate not heretofore disposed of, to be equally divided between the four.” At the time of his death the testator owned six slaves, of average value, besides other personal property, and lands.

The slaves were emancipated by the'results of the war *267before the estate had been 'settled, and, after paying the debts &c., there remained in the hands of the executor, for the satisfaction of the money legacies above, about $292 00.

The legatees claimed that the land given by the residuary clause was to be sold, and their legacies paid out of the proceeds, before the residuary devisees could take. This was resisted by the residuary devisees.

His Honor ordered that the land be sold, and its proceeds applied as prayed for by the plaintiff’s; and the defendants appealed.

Phillips & Merrimon for the appellants.

1. It is doubtful how far the doctrine of mixed or Hended residues of realty and personalty applies in North Carolina; as in England it seems to be a corollary from a proposition not received here: See MoUnson v. Mclver, 63 N. 0. 645 ; also dissenting opinion in Biddle v. Carrmvcvy, 6 Jon. Eq.. 95 ; Bunn v. Keeling, 2 Dev. 283; Knight v. Knight, 6 Jon. Eq. 134; Graham v. Little, 5 Ire. Eq. 407; Karris v. Ross, 4 Jon. Eq. 413. As all devises are still specific, even where found in a residue (Kensman v. Fryer, Law Eeps., 3 Oh. Ap. 420) the language in Kmght v. Kmght &c., as to funds primary hable, is still law.

2. Where the deficiency in the personalty results from some accident after the testator’s death (as hero), there .seems to be no reason why devisees of land (upon whom it devolves immediately, Patton v. Patton, Winst. 2d, 20, and not through the executor,) should refund, in consequence of a charge alleged to have arisen after they received their portions, Lupton v. Lupton, 2 John. Ch. 614 (p. 626).

This is upon a principle different from that in Byo.se v. Byose, (Wms. Ex’rs, 2d 1167), which has been overruled in England; and never was accepted in North Carolina, Cloud v. Martin, 2 D. & B. Eq. 274. There, the whole fund remained with the representative of the testator: Here, the *268part sought to be subjected, bas gotteu home. At tbe time when 'tbe land reached tbe devisees, there was no pretence that it was subject to diminution. Tbe devisees of tbe land are not to share in a calamity which bas fallen upon tbe claimants of tbe personalty.

(3.) Again, so far as tbe personalty bas been taken to pay debts, these claimants are not entitled to be made whole: See McBee, ex parte, 63 N. 0. 332; Kmght v. Knight (above).

Mamnmg, contra.

This is a case of a mixed residue of realty and personalty, within tbe principle laid down in Kohinson v. Mclver, 63 N. 0. 645. He cited also 1 Bed. Wills, p. 279, §§ 15 and 18, Gramos v. Howard, 3 Jon. Eq. 302,1 Bop. Leg. 675, 2d Bed. Wills, 370 and n., Bray v. Land), 2 Dev. Eq. 372.

Peaüsoít, C. J.

In Robinson v. McIver, 63 N. C. 645, it is said: “When land and personal estate are made a mixed fund in a residuary clause, tbe land, as well as tbe personalty is subject to the payment of pecuniary legacies. This, however, is not on tbe footing of a charge on land, like tbe annuities in this case, but on tbe ground that, in order to ascertain what is embraced in tbe residuary bind, it is necessary to take out tbe specific legacies, and then to deduct tbe pecuniary legacies, and only what remains is ‘the rest or residue of tbe estate.’ Tbe residuary legatee (and de-visee) takes only what is left.”

In tbe will under consideration, all of tbe real and personal estate, “ not heretofore disposed of,” is given to tbe four living children of tbe testator. In order to ascertain what is embraced under this clause, according to a well settled rule that tbe personal estate is tbe primary fund for tbe payment of debts and pecuniary legacies, it is necessary to take out of tbe personal estate enough to pay debts. Then *269take out tbe specific legacies to the widow; then deduct enough, to satisfy the pecuniary legacies; and the rest passes •under the description, “personal estate not heretofore disposed of.”

By a like process, take out what land is given to the widow, and the rest passes to the devisees, under the description, “ real estate not heretofore disposed of.” If there had been a deficiency of personal estate to satisfy the pecuniary legacies, it may be that it would have been necessary to deduct from the land enough for that purpose, “not on the footing of a charge on the land,” but as a means of ascertaining what land was embraced by the description.

In this case the personal estate was ample to pay debts, to set apart the specific legacies, and to satisfy the pecuniary legacies, leaving four slaves of average value, which, subject to these legacies, passed under the residuary clause. So the land, other than that given to the widow, was embraced by the description, and vested in the devisees, free of any charge.

It so turned out that afterwards the four negroes were lost to the fund by civil death. The question is, shall this loss fall on the pecuniary legatees, or have they a right to resort to the land which had already vested in the devisees. We can see no principle on which to make the land liable. Herein lies the significance of the distinction taken, in Robinson v. McIver, supra, betwen a charge on land, and the process by which to ascertain what land is embraced by the description. If these legacies had been charged on the land, like the an-nuti.es in the case referred to, as the devisees would have taken cum onere, the loss would fall on them. But as the land vested in them free of the charge, the loss by a subsequent event, that is the emanicipation of the slaves, must fall on the pecuniary legatees, in which loss the widow, in respect to her two negroes, and residuary legatees in respect to their interest in the other four, must be common sufferers.

His Honor being of opinion that the land in the hands of *270tbe residuary devisees was liable for the pecuniary legacies, made an order of sale, and directed so much of the proceeds of sale as shouid he necessary, to he applied to the satisfaction thereof.

In this there is error.

Let this be certified.

Per Curiam. Order reversed.