
    N. J. BARHAM and wife SUSAN L. BARHAM v. R. H. GREGORY and THOS. H. MORROW, Ex’rs of DREWRY S. MORROW.
    In a suit for a legacy to the sole and separate use of a Feme eovert, the husband is not a proper party plaintiff.
    It being admitted in the answer of executors sued for a pecuniary legacy that there are' assets sufficient to pay the complainant and the other pecuniary legatees, the latter are not necessary parties.
    Where it is contended by the executors that a pecuniary legacy is payable in Confederate notes on hand at the death of the testator, the residuary legatees should be made parties in a bill by the pecuniary legatee seeking the payment of his legacy (at par) in the currency of the United States.
    Where a man of large estate, who died in 1864 without children, bequeathed to a sister-in-law a legacy of $1,000, held that the legatee was entitled to payment in lawful currency of the United States; notwithstanding that he had on hand, at his death, Confederate notes sufficient in amount to pay that and the other pecuniary legacies.
    T Bill for an account and payment of a legacy, filed to Fall Term, 1866, of the Court of Equity for Granville, and at Spring Term, 1867, set tor hearing upon bill and answer, and transferred to this court.
    The bill states that Drewry S. Morrow, the testator of the defendants, died in January, 1864, seized and possessed of a large estate real and personal; that by his will, dated in May, 1868, he bequeathed to the complainant, Susan L. Bar-ham, (who was his sister-in-law,) $1,000, “for her sole, separate and exclusive use, excluding the jus mariti of her present or any future husband,” and that the defendants, who qualified as executors at February Term, 1864, of the County Court of Granville, had received assets sufficient to pay the debts and legacies; and charges a refusal on the part of the defendants to pay the legacy to the complainant Susan.
    The will referred to, besides the Legacy to Susan L. Bar-ham, contains devises and bequests of a specific character, and also several other pecuniary legacies to relatives of the testator. The residue of his property is devised and bequeathed to a niece and certain nephews, among whom is the defendant Thomas H. Morrow.
    The answer admits the material allegations of the bill, but says that the testator, at his death, had on hand about $9,000 in Confederate currency, and that he designed the pecuniary legacies to be paid out of that money; that the complainant Susan, soon after the death of the testator, through her son and agent, signified a willingness to accept such money in payment of her legacy, and directed the same to be invested in other Confederate securities; and that some of the other pecuniary legatees have accepted such money. The defendants say further, that they have' delivered over most of the property to the legatees to whom it was specifically given, because they supposed there was money enough on hand to pay all the pecuniary legacies. They insist that the legacy to the complainant Susan was payable in Confederate money, and that the complainants shall suffer the loss from its becoming worthless. The answer admitted further that the defendants have bonds and notes on hand sufficient, if they could now be collected, to pay the claim of the complainants.
    The defendants insist that the residuary legatees ought to have been made parties.
    
      Graham and Edivards, for the complainants.
    The question, whether a specific pecuniary legatee is entitled to satisfaction in preference to the residuary legatees, cannot be affected by the fact that the will was made during a revolution, and the testator died'before its close. Written instruments must be construed by their terms, and resort must not be had. to matters in pais. When the testator speaks of $1,000 in the legacy to the complainant Susan, he means $1,000 in money, i. e., lawful money.
    It being admitted that the defendants have assets in hand, it is not necessary that the residuary legatees be made parties. Story Eq. PL 104. Eesiduary legatees never required to be parties to a suit by a creditor, lb- 76, b and c and note, 148, 150; Ooclcburnv. Thompson, 16 Yes. 326. Nor need they be parties defendant in a suit by a specific pecuniary legatee. Story Eq. Pi. 263. Such legatees may sue for his own legacy only; he is not in pari jure with residuary legatees. lb. 104, 136.
    
      Moore, for the defendants.
    This is the husband’s bill and cannot be sustained for the sole estate of his wife. 1 Dan. Ch. Pr. 142-3; Sto. Eq. PL s. 61; Grant v. Van Sehoonhoven, 9 Paige 255; Hughes v. Evans, 1 Eng. Con. Ch. Cases 92.
    Confederate money was meant; such as the testator had on hand. Pie by many clauses gives his property by parts and parcels; first his lands, then his slaves, then his money, &c.
    
      The court may look to the history of the times to ascertain the kind of currency meant.
    The unpaid pecuniary and the residuary legatees ought to be before the court. The former because it is not alleged or admitted that there is a sufficiency of assets to pay both them and plaintiffs; and the latter because they are interested in the property sought to be charged. Vanhorn v. JDuclcworth, 7 Ire. Eq. 261; Calv. (17 L. Lib.) 171; Sto. Eq. PI. s. 89 — 104,
   Pearson, C. J.

The bill seeks to recover a legacy given by the will of Drewry S. Morrow to the feme plaintiff, in these words: “ I give and bequeath to my sister-in-law, Susan L. Barham, for her sole, separate and exclusive use, excluding the jus mariti of her present or any future husband, the sum of one thousand dollars.'’

On the argument three preliminary objections were made: 1st. The feme plaintiff must sue by next friend. This we think is well taken. As it now stands, the bill is that of the husband, and a decree will be no bar to another bill in the name of the wife by next friend, for the reason that the fund is secured to the separate use of the wife, and the husband is not at liberty to sue for and recover it as an ordinary legacy. 2d. The other pecuniary legatees are necessary parties, as the bill asks for an account of the estate. The other pecuniary legatees standing on the same footing ought to have been made parties, so as to bind them by the account, and subject them to a rateable abatement in the event of a deficiency of assets to pay all; but this objection is obviated by the admission of the answer, that the executors have an ample fund provided they are allowed time to collect the notes due to the intestate. 3d. The residuary legatees are necessary parties ordinarily in a suit for a pecuniary legacy. The residuary legatees are not necessary parties, but, under the peculiar circumstances of this case, we think they should be parties, for they are the persons directly interested in the question raised by the bill and answer: that is, whether the pecuniary legacies should be paid off in Confederate treasury notes, leaving' a rateable part for the residuary relatives; or should be paid in good money, leaving the Confederate treasury notes to fall into the residue ? The executors have no interest in this question, but are stake-holders, and the parties interested are not before the court. This objection is taken in the answer. Upon an intimation of this opinion by the court, the defendants consented that the bill should be amended so as to remove these objections, upon the payment of costs, as if the bill were dismissed, which terms were accepted and the case was then argued upon the main question.

It was insisted by the plaintiff that “ one thousand dollars’’ means that amount in specie: i. e., United States money, a currency recognized by the government of the United States as the representative of money, and that, “ so far as the court can see in this case, there has at no time been any other currency in this country than lawful money of the United States.”

It was insisted for the defendants that, in putting a construction upon this will, which speaks in 18&4, the time of the death of the testator, the court is bound to take notice of the fact that at that time Confederate treasury notes constituted the currency of the State of North Carolina, and must take the testator to mean one thousand dollars in Confederate treasury notes. In aid of this construction the learned counsel relied upon these special facts: that is, the testator gives other pecuniary legacies amounting in all to $9,200; he had on hand at his death Confederate treasury notes to the amount of $8,800, and was indebted not exceeding $100; and by another clause of his will he gives “ all of my crop, stock, plantation tools, money and provisions on' hand, and debts due me at my death, after paying and satisfying the legacies and legatees hereinbefore mentioned, and all other property not hereinbefore mentioned, I give and bequeath to my nephews,” &c.

These special facts do not aid in the construction one way or the other; for the obvious reply is, if he meant that the pecuniary legacies should be paid out of the Confedérate treasury notes on hand, the amounts being- nearly the same, why charge expressly his crop, stock, plantation tools and debts due to him ? So we have a general question of construction on the words “ one thousand dollars,” used by a testator who died domiciled in this State in 1864.

It is a well settled rule of law that pecuniary legacies are to be paid in the currency of the country where the testator had his domicile, in the absence of anything to show a different meaning. Saunders v. Drake, 2 Atk. 404. The rule, nothing is a legal tender in payment of debts except gold and silver coin, does not apply to legacies. The courts are bound, in putting a construction upon wills and other instruments, to take notice of the facts, as a part of public history, that in 1864 our State was at war with the government of the United States, and that the people of North Carolina, in their ordinary conversation and business transactions, spoke and acted as if the State had separated from the Union, and that we did in fact use other currency than the lawful money of the United States; and it is manifest that, in order to arrive at the true meaning of words, we must take into consideration all of the circumstances which surround the man at the time he uses the words.

If therefore the testator had died in 1861 or 1862, at a time when Confederate treasury notes were recognized and used as the representative of money, and were received in the payment of debts contracted before the war by creditors, sheriffs and collecting agents, so as to constitute a currency for the country, although somewhat depreciated, we would hold that the legacy could be satisfied by the payment of an amount equal to the value of one thousand dollars in Confederate treasury notes at the time of his death.

But by the aid of the same knowledge, (of the public history of the times;) we know the fact that Confederate treasury notes had ceased to be a currency. No man would receive them in payment of debts contracted before the war; a sheriff or other collecting officer was not at liberty to take them in payment, and if he did so and made an acquittance he was liable for the full amount, without notice on the part of his principal not to receive such paper. Atkins v. Mooney, 1 Phil. 31. In short, Confederate paper had then ceased to be a currency, and was only used as a substitute when articles were rated at 10, 20 and 50 times their value in money. A country without a currency is an anomaly, but such was the fact. So we cannot entertain the idea for a moment that the testator, who Avas a man of very large estate and had no children, in giving these pecuniary legacies to his sister-in-law and other near relatives, meant to give them Confederate treasury notes, without supposing that he intended to mock them!

The testator is careful to provide that this one thousand dollars, payable, as is said, in Confederate treasury notes, which would not buy more than ten barrels of flour, shall be for her sole, separate and exclusive use, excluding the Jus mariti of her present or any future husband." This provision is absurd, unless he meant that the legacy should be paid in good money.

The court declares its opinion to be that the plaintiff Mrs. Barham is entitled to one thousand, dollars in the currency of the United States. In consideration of the fact admitted by the answer, that the executors have paid over to the residuary legatees all of the stock, plantation tools, &c., re-taining only the notes due to the testator, upon which this legacy is charged, and which have been bearing interest, we think the plaintiff is entitled to interest on her legacy, to begin one year from the death of the testator, for the residuary legatees have no right to expect to be gainers by the delay in paying the legacy.

There will be a reference to the Master to inquire whether the defendants, the executors, have collected, or by reasonable diligence might have collected, of the notes due the testator an amount sufficient to pay the plaintiff’s legacy with interest-; and the cause will stand for further directions.

Per Curiam.

Decree accordingly.  