
    DAVID W. STONE, Ex’r. of SARAH STONE vs. JOSEPH B. HINTON et UXOR et al.
    Where a testatrix directed her negroes to he sold in families, not to speculators, but to persons: purchasing for their own use, and “ the money arising from the sale” to be invested in bank stock, the interest on the stock to he paid two thirds to her sister, and one third to her brother, during their lives, and then the stock to be paid to another person, it was held, that though there was no direction in the will to that effect, yet the testatrix intended a sale of the negroes on a credit; that twelve months was a reasonable term of credit; that the interest on the purchase money accrued from the day of sale to the time of payment, was “ money arising from the sale,” to he invested with the principal in stock; and that the legatees of the interest on the stock, were not entitled to the interest accrued on the purchase money before the investment.
    A bequest of a slave to one for life, and, at the death of the tenant for life, to be sold or made free, if his conduct should, in the opinion ef the tenant, “ merit such a distinction,” will not give to the legatee a larger estate than for life.
    Where a testatrix in her will, bequeathed certain bank stock to her nephew, G. D., and in a codicil declared as follows: “ I desire that, in case the education and tuition of G. D. is withheld from me, not having confidence in those that now direct his ways, I give the bank stock before named and disposed of, to be divided between the said G. D., S. E. D. and E. M. D.;” and it appeared that the testatrix did not have the direction or controul of the education and tuition of her neph■ew G. D., from a time anterior to the making of her will to her death, it was held, that the contingency mentioned in the codicil had happened, upon which the stock was to be divided between G. D. and the two other named legatees.
    The bill was filed in October, 1839, and stated that Mrs.. Sarah Stone, late of the city of Raleigh, died in the summer of the year 1838, leaving a will, made in June, 1834, where-, in were contained the following clauses:
    “ I consider the most benevolent plan that loan pursue towards my negroes, will be the following: I desire that they shall all be sold in families; that husband and wife, where I own both, and their small children, shall be put up together. They shall not be sold to speculators, but to persons for their own use.” “ Happy, Penelope’s daughter, 1 leave to my sister during her life, and to be sold at her death, or to be made free, if her conduct should merit such a distinction, in the opinion of my sister.” “ The money arising from the sale of the above negroes, shall be vested in bank stock. My sister, Margaret G. Hinton, to receive two thirds of the interest; and my brother, Thomas B. Dashiel, one third, during their lives. At their death, the bank stock to be given to Grayson Dashiel, the eldest son of my brother, Thomas Dashiel.”
    To this will the testatrix, in July, 1836, added a codicil in the following words:
    “ Feeling and knowing at all times the uncertainty of life, I desire that, in case the education and tuition of Grayson Dashiel is withheld from me, not having confidence in those that now direct his ways, I give and desire the bank stock before named and disposed of, to be divided between the said Grayson Dashiel, Sarah Ellen Dashiel, and Elizabeth Mary Dashiel; the two latter named persons are the children of my youngest brother, George Warren Dashiel. If Grayson should die without heirs, his portion to be divided between Sarah Ellen and Elizabeth Mary Dashiel.” The bill then stated that the plaintiff, who was named executor in the said will, and had qualified thereto, had sold the slaves, required by the will to be immediately sold, upon a credit of twelve months, with interest on the purchase money from the date; and that, as the term of credit was about expiring, he was desirous, as soon as he could collect the money due on the sales, to invest it in bank stock, according to the directions of the will; but that a difficulty was likely to arise, in the execution of the said trust; for that the defendant, Joseph B. Hinton, whose wife was the sister of the testatrix named in the will, insisted that nothing was to be invested in stock but the principal sum for which the sales uvere made, and not interest accruing on such sales from the time when they were made, up to the day of payment; and claimed that two thirds of such accruing interest should be paid over to him, as due to his wife as profits, interest or income. The bill further stated that the said Joseph B. Hinton insisted, that under the-clause of the will in relation to the negro Happy, she passe to his wife, and had consequently vested in him absolutel , and not merely for the life of his wife; and he had expressed a design to sell the said slave. But the plaintiff alleged he was advised, that in both of these claims of the defendant Hinton, he was wrong; and the plaintiff could not safely yield to his demands.
    The bill further stated that Grayson Dashiel, the legatee named in the will, came with his father and mother to the residence of the testatrix, in the year 1829 or 1830, and remained with her, as members of her family, about the space of two years, when he and they left her, and never returned to her house; nor was the said Grayson ever after under the direction and control of the testatrix. Whether the said Grayson was entitled to the whole principal of the bank stock according to the will, or whether the case had arisen under the codicil, entitling the said Sarah, Ellen, and Elizabeth Mary Dashiel to take with him, the plaintiff alleged that he was unable to decide; and that he was advised by counsel that it was a question of doubt and difficulty, on which he ought not to determine. The bill then prayed that the rights of the parties and the duty of the plaintiff, upon all the questions above stated, might be declared by a decree of the court; and that should the defendant, in the opinion of the court, be entitled only to an estate for the life of his wife in the negro Happy, he might be decreed not to sell or remove her; and that proper and adequate security might be taken, under the direction of the court, that she might be forthcoming at the expiration of the life estate.
    The answer of the defendants admitted the facts set forth in the bill, but insisted upon their respective rights under the will of the testatrix.
    
      Badger for the plaintiff.
    
      W. H. HayiOood for the defendants.
   Gaston, Judge.

Upon the questions which have arisen between the plaintiff and the defendants, Joseph B. Hinton and wife, the Court is of opinion with the plaintiff.

The testatrix directed by her will certain slaves to be sold;' the money arising from the sale to be vested in bank stock; and the interest of that stock to be paid two thirds to her sister, Mrs. Hinton, and one third to her brother, Thomas B. Dashiel, during their lives, with certain limitations over after their death.' The executor has sold these slaves, allow-011 some ^em a c-redit of twelve months, taking bonds from the purchasers drawing interest from the day of sale.. — . And upon these facts, it is contended by the defendants, Hinton and wife, that only the principal money secured by the bonds is to be invested in stock; and that the interest which accrues on the day of payment, is divisible as that of the Bank stock would have been, had the price of the slaves been instantly, on the sale, paid in cash and converted into stock. The will is silent as to the terms and conditions of sale; but we hold that the testatrix did intend a sale upon credit. This is the universal usage of the State; and where the will intimates nothing variant from this usage, it is1 fair to suppose that the will was made with an implied reference to it. This custom is either founded upon; ox has caused the enactment of the statute, which makes it imperative on executors or administrators who sell to pay debts, or to-make division of the persoual estate of their testators or intestates, to give not less than six month’s credit for enhancing the price of the property. See act of 1794,1 Rev. Stat. ch.46. sec. 11. A credit of twelve months on the sale of slaves is usual, and it cannot be deemed unreasonable where the testatrix has forbidden that they be sold to speculators, or to others than those who might bu y for their own use. Such purchasers have usually to look to" their annual crops for the means of meeting their engagements. Believing that the testatrix contemplated a sale upon credit, and entertaining the opinion that the credit allowed was not unreasonable, we hold that the amount which the purchasers are to pay upon . the expiration of the term of credit, in whatever form such payment may be reserved or secured, is in the language of the will, the money arising from the sale.”

On the second question raised between these parties, we are at a loss to see upon what ground a larger estate in the negro girl Happy is claimed by Mr. and Mrs Hinton, than for the life of the latter. The case of James’s executors v. Masters, 3 Mur. 110, where this Court held tb it the legatee took but an estate for life, was one far more favorable to claim of the absolute property than that arising upon the bequestnowunder consideration. The poxoer which the testatrix has conferred on Mrs. Hinton, directing the girl to be sold or set free at her death, in no way enlarges her estate.

Upon the other question whereon advice is prayed, the Court is of opinion that inasmuch as it is admitted upon the pleadings, that the testatrix did not have the direction or controul of the education or tuition of Grayson Dashiell from a time anterior to the making of the will of the testatrix until her death, the contingency mentioned in the codicil thereof, upon the happening of which the interest in the bank stock bequeathed in the body of the will to said Gray-son, became, according to the terms of the codicil, divisible between the said Grayson and Sarah- Ellen and Elizabeth Mary Dashiell, has occurred. The dissatisfaction which the testatrix declares in the codicil, with the manner in which his education and tuition were then conducted, furnishes a clear exposition of the sense in which she uses the phrase in case the education and tuition is withheld from me.” She intends that the conditional and prospective disposition made in the codicil, shall depend upon the fact, whether the training of this youth shall continue as it then was, with those in whom she had not confidence, or be brought under her guidance and direction. In -the sense of the testatrix, it was withheld from her, because she had it not.

The plaintiff is to pay the costs of the suit out of the fund.

Per Curiam. Decree accordingly.  