LITTLE, EXECutrix v. HageR AND OTHERS.

judged the legacy of $400 to be a charge on the land, and the plaintiff appealed to this Court.

Blackmer & McCorkle, for the plaintiff.

W. P. Caldwell and Bailey, for the defendants.

The residuary devise of real estate is not liable to pay the pecuniary legacy to the plaintiff.

I. Not on the principle of abatement. (1.) Because a residuary clause, embracing both real and personal estate, quoad the real estate is specific; a residuary devise of realty is always specific. Roper on Legacies, vol. 1, p. 453.

Nor is this principle affected by Rev. Code, chap. 119, sec. 6, which is a copy of the English statute known as the Wills act, as expressed by the Lord Chancellor in Hensman v. Fryer (Law Reports) 3 Ch. Appeals, 420.

A specific legacy in general does not abate in favor of a general legacy. Roper, vol. 1, 253-284, and a specific devise is never required to abate in favor of a general legacy, unless the whole estate is given away. Ibid. vol. 1, p. 254. Though if the real estate be charged with payment of debts, the specific devisee of it will be required to contribute (in a deficiency of personal assets) with the specific legatee of a chattel. S. P. Even as betwen general legacies, in a deficiency, they must abate proportionably inter se. Ib. 284. Graham v. Graham, Busb. Eq. 291.

(2.) Even if the legacy to plaintiff was specific, as a horse, it would abate on a deficiency to pay debts, and must be applied to pay debts before the realty. Knight v. Knight, 6 Jon. Eq. 134. Especially since Rev. Code, chap. 46, sec. 44.

II. Nor can plaintiff recover on the principle of ascertaining the amount of the residue, as in Robinson v. McIver, 63 N. C. 645; for she alleges that there was personalty sufficient to pay her legacy, which has been lost by matter ex post facto, and, in that regard, is on "all fours" with Johnson v. Ferrell, 64 N. C. 266.

LITTLE, EXECUTRIX v. HAGER AND OTHERS.

III. For the same reason, she cannot recover on the doctrine of marshalling, as the single fund was not exhausted to pay debts, i. e. there was $400 sub.

IV. Nor on the ground of a charge. 1 Roper, 446 et seq., 454 et seq. Roper collates the cases, and furnishes a rule at p. 454. In no case have legacies been construed a charge where there is only an express charge for debts. Expressio unius exclusio alterius,

A direction to pay "all my just debts," &c., was held, by high anthority as not sufficient to constitute a charge to pay debts, Keeling v. Brown, 5 Ves. 359, and by no construction can be extended to legacies.

V. It is to be observed, that the plaintiff, as Executrix, realized in money $400, the exact amount of her legacy, and while she funded it as Executrix, the fair inference is because the money was about to be scaled 33 per cent. At any rate, the question of her assent to her own legacy, if deemed material, should be set down for trial.

RODMAN, J. Two questions are presented in this case:

1. Was the legacy of $400 to Mary Little paid? She was an Executrix and received assets to an amount greater than her legacy, but as it finally turned out, not sufficient to pay the 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 of 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 crediters would not receive Confederate money. The mere identity of the amount invested with that of her legacy is of no importance, since the

LITTLE, EXECUTRIX v. HAGER AND OTHERS.

bonds were expressly taken in her representative character and on account of 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 paying 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 Dieh. 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 atterwards 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.

BURNS & SMOCKER v. HARRIS & ALLEN.

BURNS & SMUCKER vs. HARRIS & ALLEN.

A portion of the effects of a partnership can be set aside to one of the partners, as his personal property exemption, with the consent of the other partner or partners. Without such consent it cannot be.

[Mistake in the report of Burns & Smucker v. Harris & Allen, 66 N. C. 509, corrected.]

This cause was before this Court at last term, when it was remanded to the Superior Court of FRANKLIN, whence it came up that the facts might be ascertained and the rights of the parties determined.

At Spring Term, 1872, of Franklin Superior Court, the defendant Harris made a motion, to discharge an attachment obtained by the plaintiff, as to certain goods of the firm of Harris & Allen, which had been set apart to him as a personal property exemption, under a Justice's execution. The motion was, by consent, heard before Moore, J., at Chambers.

The parties agreed to the following (in addition to those set forth in the case as reported in 66 N. C. R. 509) as the facts, which this Court intended shou'd be ascertained:

1. The partnership effects were insufficient to pay the partnership debts.

2. The members of the firm had no individual property outside of their interest in the partnership property.

3. The property set apart was no part of that for which the plaintiff's claim was contracted, but was a part of the stock of goods purchased from the plaintiffs and others.

His Ionor overruled the motion of the defendant Harris, and, on motion of the plaintiffs, ordered that the clerk, with whom the proceeds of a sale of the goods in controversy were deposited under a former order in the cause, apply said proceeds to the payment of the plaintiff's judgment for their debts. From this judgment and order the defendants appealed.

BURNS & SMUCKER v. HARRIS & Allen.

The defendants having been adjudicated bankrupts on creditors' petition, and C. L. Harris being appointed their assignee, at this terin, said assignee filed a petition to be made a party defendant, by Moore & Gatling, his attorneys.

Batlle & Son, for the plaintiffs.

A. M. Lewis, for the defendants.

READE, J. The motion of C. L. Harris, assignee in bankruptcy of Harris & Allen, to be made party defendant, is allowed, but we do not adjudicate any conflicting claims between the assignee and the defendants, as the defendants have no notice.

One of two or more partners cannot have a portion of the partnership effects set apart to him, as his personal property exemption, without the consent of the other partner or partners; because the property is not his. But if the other partner or partners consent, then it may be done. The creditors of the firm cannot object, because they no more have a lien upon the partnership effects for their debts, than creditors of an individual have upon his effects. In our case the partners did assent.

It is proper to say, that the counsel for the plaintiffs in this case were misled by a misprint, in the opinion of this Court, when this case was before us heretofore, (66 N. C. R.) "Sufficient" is printed for "insufficient."

There is error. Judgment reversed, and judgment here that the property levied on be discharged from the levy, and the money in the hands of the clerk or other person will be paid over to the defendant. And if the money under the order of the Court below has been paid over to the plaintiffs, there will be judgment in favor of the defendant against the plaintiffs for the amount. And it the counsel do not agree, the clerk will ascertain the facts.

PER CURIAM.

Judgment accordingly.