
    DAVID CRESSWELL & AL. vs. WILLIAM EMBERSON.
    A. bequeathed a slave to his wife for her life, and, after her death, to be emancipated. Held, that though the provision for the emancipation of ■ the slave was void, yet the s'avc did not belong absolutely to the wife, but, sifter her death, went to-the next-of kin, or passed by the residuary cluuse, if there was one.
    Cause removed from the Court of Equity of Iredell County, at the Spring Term 1848.
    In the year 1881. Adam Moore made his will, in which he gave to his wife, Hannah Moore, the whole of his property, after the payment of his debts, during hpr natural life, except such part as she might choose not to retain, and he directed such part to he sold by his executors, and the proceeds to be put out at interest, until her death, and then to be divided. He then gives to her one third of the proceeds of this sale, and the whole of the increase of the estate, except the negroes. He further directs, that, after the death of his wife, his boy, George Wash» ington, shall be emancipated. The defendant, Ember-son, was appointed one of the executors Mrs. Moore died, and by hpr last will, appointed the plaintiffs her executors, and the bill is filed for an account; and among other things, charges that the testatrix, by her will, gave to the plaintiff. Creswell, the hoy Washington to be emancipated, as soon as the laws will permit; that the defendant. after the death of Mrs Moore, sold the boy Washington, as the property of his testator, and that, during the life of the testatrix, Mrs Moore, he hired out, for several years, a valuable negro hoy and received a large sum therefor, and claimed the money as belonging to the estate of Adam Moore.
    The answer of the executors of A. Moore admits the contents of their testator’s will to be, as set out in the bill, the sale of Washington, and the hiring out of Stephen, and that the amount of his hire is in their hands. They aver, as to Stephen, that, apprehending that the perishable property and the other properly directed tobe sold would not pay the debts, they obtained an order from the County Court to sell Stephen, but as the deficiency was not large, and the negro was willed to Mrs. Moore for her life, at her request, instead of selling him, they hired him out for the purpose of paying the debts.
    No more of the pleadings are set out than is necessary to bring in view* the question submitted to this Court at this time.
    The bill was filed at September Term 1841 and the answmr at Spring Term 1S43. Upon the hearing a decree for an account was made, and, at the same term, by an order of Court, the case was referred to a commissioner. The order of reference was as.follows; “on motion of the plaintiff’s counsel, it was ordered, that this cause be referred to J. P. Caldwell, to take an account and report to the next Court of and concerning the assets of Adam Moore, deceased, &e., the amount of that portion of it belonging to the late Hannah Moore, and that he report the facts in relation to the bequest, and sale of the slaves Washington, &c.” At spring term 1848 the commissioner made his report, and, among other things reported, 1st. That the negro boy Washington belonged to the plaintiff, Creswell, and, he, now assenting to the sale, is entitled to recover the amount he sold for with interest, asset forth in the report. 2nd. That as to the hire of Stephen, I decide that, the plaintiffs, as the executors of Hannah Moore, have a right to recover the same with interest as stated. 3d. Of the growing crop of corn and hay, I de* cide, they properly belong to the estate of Hannah Moore, and that the plaintiffs had a right to recover the same.
    To this report the defendants filed the following exceptions: 1st. That the commissioner has adjudged the title of the slave Washington to be in the plaintiff Creswell. and has accordingly charged for the said plaintiff the value of the slave against the defendant, whereas the title to the said slave was in the next of kin of Adam Moore, and the plaintiffs are not of the next of kin. 2d. That the commissioner has charged the defendants with the hire of the boy Stephen, and adjudged the value theieofto the plaintiffs, when the same constitutes no charge against the estate of Adam Moore, and should form no part of this account, the plaintiff’s remedy being wholly a legal one, if any, against the defendants individually Sd. That the defendants are charged in the said account with the sum of S288 for certain corn and bay, belonging to the plaintiffs, as executors of Hannah Moore, and which they should have taken care of, but for which the defendants, as executors of Adam Moore, are not liable to account in this suit, the plaintiffs having a clear remedy at law. The 4lh, 5th, and 6th exceptions were abandoned» as not being supported by testimony.
    
      Avery, Alexander and Bynum, for the plaintiffs.
    
      Osborne, Guión and Gaither, for the defendants.
   Nash, J.

The first exception is sustained. The plaintiff claimed the negro Washington under the will of Mrs. Moore. She had but a life estate. ' In making her will she doubtless thought, and the commissioner has acted under a similar impression, that, as the negro Washington was given to her for life, and the subsequent disposition was void, she took an absolute estate in him under the-win of her husband, Adam Moore. It is true that the direction given for-his emancipation, was void, as being contrary to law, but Mrs. Moore’s interest in him was not thereby enlarged. By the express provisions made for her, she has an estate but for her life. With her death that interest ceased — -she had nothing to leave to another. Washington, therefore, upon her death', passed either to the next of kin of Adam Moore, or sunk into the residuum, if there was one. This has been repeatedly declared by the Court. The latest case on the subject, and we hope it will be the last, is that of Lemond v. Peoples, decided at this term. The slave, Washington, therefore, or his value, is in the hands of the defendant, Emberson, as of the estate of Adam Moore.

The 2nd exception is overruled It appears, that Stephen was one of the negroes left to the widow during her lile, and to her also the testator gave, after the payment of his debts, the whole increase of the estate except the negroes. The defendant, Emberson, admits, that he did hire out Stephen for the purpose of paying debts : that, with that view, he obtained an order from the County Court to sell Stephen, but at the request of Mrs. Moore? as the balance of the debts to be paid was small, he, instead of selling, hired him out. It turned out afterwards, that the hire of Stephen was not required to pay the debts and the money is in his hands. The consent of the executor to a legacy is necessary. He is not obliged to part with the property, until the debts of the testator are discharged, and it appears, that the defendant did not assent to the legacy as to Stephen, but neither Stephen nor his hire became necessary, and the widow was entitled under the will to both. The hire of Stephen is in the hands of the defendant Emberson, for the use of the plaintiffs, representatives of Mrs. Moore. The third exception is overruled. The exception is, that the hay and corn, for which the sum of $288 is allowed by the commissioner, belong to the plaintiffs, as executors of Hannah M°9r®> but for which the estate of Adam Moore is not liable to account in this suit, the plaintiffs having a clear remedy at law. The question attempted to be raised is not open. It was disposed of by the decree, made on the hearing for an acoount. The other exceptions are overruled, there being no evidence to support them. The report of commissioner Caldwell is in all things confirmed, except as to the slave Washington.

Per Curiam.

Decree accordingly.  