
    
      R. J. Gage, ex'r of John Rogers, v. Mary A. E. J. Rogers.
    
    Where the marriage settlement transferred to the husband the use and occupation, as well as all the proceeds arising from the real and personal estate of the wife, during their joint lives, and, in case the wife should die first, leaving issue, directed the property to be divided bettveen the husband and the issue, according to law — reserving, in tire meantime, the legal title in a trustee of the wife; and the wife died in February, and the husband in July, of the same year, after after having bequeathed to his daughter, the only issue of their marriage, all like estate of which his wife was possessed at the time of their marriage, and directing that she should be suitably maintained and educated out of the proceeds of the same, and after having planted a crop with his own, and the negroes of the trust estate — the Court adjudged to the executor the crop severed before the last day .of December-, of the year in which the testator died, subject to be charged with the maintenance and education of the daughter, and the rent and hire for the use of her share of the land and negroes.
    The executor is not entitled to have the money reimbursed, which his testator advanced in his lifetime, to purchase claims against the property secured to his wife by a marriage settlement.
    The estate of a testator is liable for the costs of a suit brought by the executor against a legatee of the estate.
    
      Before Caldwell, Ch. at Union, June, 1847.
    Caldwell, Ch. John Rogers and Ann Fincher made a marriage settlement on the 2d of June, A. D. 1836, and immediately afterwards intermarried. By the settlement it was agreed that the said Ann Fincher transfers to the said John Rogers the use and occupation, as well as all the proceeds arising from the real and personal estate whereof the said Arm is now possessed, during the joint lives of the said Aun nnft John, reserving the right and title of the said real and personal property in her, the said Ann, by and with the consent of him, the said John, in William H. Gist, as trustee, or any other person hereafter agreed upon, by her, the said Ann, as trustee for her, the said Ann ; and it is further stipulated and agreed upon, should she, the said Ann, die before the said John, after having issue, or child or children, of this intended marriage, then the real and personal property, with the increase, is to pursue the provisions of the law in such cases made and provided, or any other property that the present may be exchanged for. And it is further agreed, that at .the death of her, the said Ann, she, the,said. Ann, is to leave by will or deed, to the present .children .of him, the said John, an amount equal to the sum that the said John may have to expend in purchasing up the interest of the heirs,of Jesse Fincher, deceased, as will .shew by his last will; provided the said Ann die without child or children living, at the time of her death, by this intended marriage.
    The defendant is the only issue of said marriage, and her mother died in February, A. D. 1838, and her father died in July following. The testator, on the 28th of June, before his death, made his will, by which, among other things, he devised and bequeathed as follows :
    Item 2d. ■‘‘I give, devise and bequeath unto my daughter Mary Ann E. J. Rogers, all the property, both real and personal, which her mother, my late wife, had and was possessed at the time of our marriage, together with the increase of the negroes, and also one negro girl, named Matilda; but if my said daughter should die without leaving a child, living at her death, then all the above property to be equally divided among my sons, .Tames W. Rogers, John R. Rogers, George W. B. Rogers, William M. Rogers, Ira J. Rogers, and Lemuel M. H. Rogers, or such as may be living at her death.”
    Item 5th. “I wish, and direct that my daughter maybe raised and educated in a manner suited to her rank and condition in life, and the necessary expenses be defrayed from the proceeds of the property devised to her.”
    Several of the relations of Ann Fincher’s former husband were entitled, at the time of her intermarriage with testator, to an interest in the land and negroes included in the marriage settlement, which was purchased partly by her before her marriage with testator, with money borrowed of him, and after their marriage by him, as appears by her notes to him before, and the receipts of the legatees (of her former husband) after their marriage. The plaintiff is the only executor that has qualified, and submits in his bill, that a fair construction of the testator’s will, in connexion with and explained by the marriage agreement, would only give defendant one sixth of the property embraced in the settlement, that being all that her mother was possessed of at the time of its execution, and that the estate of his testator is entitled to the remainder, and the estate of defendant is properly chargeable with whatever was advanced to buy up the interest of the legatees in the property possessed by his wife, with a proportionate part of the profits arising therefrom, since it has been in the possession of her guardian, G. S. Noland, who claims of the plaintiff an account of the crop raised in 1838, on the plantation included in the marriage settlement. The plaintiff presents two questions, 1st, Whether the estate of his testator is entitled to have the money reimbursed, which was advanced by his testator to purchase the claims of and to the property possessed by his wife. 2d, Whether he is liable, to account to the guardian of the infant, Mary A. E. J. Rogers, for any part of the crop raised in 1838, and if so, what part. The answer of the defendant, by her guardian, G. S. Noland, generally admits the facts stated, but relies upon the intermarriage as satisfaction of all debts between the parties, or connected with the trust estate : defendant submits that on the death of her mother she became entitled to two-thirds of the property conveyed in the marriage settlement, and that she is also entitled to two-thirds of the crop of that year, as her mother died in February, 1838 ; and finally insists that she is entitled to the whole crop of the trust property, by virtue of the deed and of the will of testator. It appeared from the evidence that John Rogers paid Thomas and Jesse P. Fincher $1,646, for their interest in the property after the marriage.
    The intermarriage of John Rogers and Ann Fincher not only suspended, but annulled, all their pre-existing contracts, except their marriage settlement; as the husband becomes liable to pay his wife’s debts, his right as a creditor to receive, would neutralize his liability to pay it; it is inconsistent and absurd, that an individual should be indebted to himself. The settlement provided, that if she survived him, and should die without leaving child or children, living at the time of her death, she should leave, by will or deed, his other children, (alive at the marriage) an amount equal to the sum that he expended in purchasing up the interest of the heirs of Jesse Fincher, deceased; but as these events have notRappened, the trust estate cannot be subjected to such claim. The testator had an adequate inducement to purchase their interest, as he was entitled, under the deed, to the use, occupation and proceeds of the estate of which she was possessed, during then-joint lives, and he may have expected reimbursement from the crops for what he expended ; independently of this consideration, there was nothing to restrain him from disembarrassing the property for the benefit of the defendant. On the death of the another, in February, 1838, the daughter became entitled to two-thirds, and the testator to the other third of the property, as tenants in common. There was no partition of it in his life time, and the whole of it continued in his possession until his death, in July following. As she was entitled to two thirds of the property, it follows that she would also be entitled to the same proportion of the rents and profits of it, and the executor must account for them in that year.
    By the fifth clause, the testator directed that the defendant if be raised and educated in a manner suited to her rank and condition in life, and the necessary expenses be defrayed from the proceeds of the property devised to her,” and the question arises, does the other third of the crop of 1838, go to the devisee or the executor 1 The extent of the testator’s debts, (which were provided to be paid, by the first clause, out of any money he had on hand, or which might be collected from debts due him) could not control the construction of the fifth clause, but may be resorted to as indieative of his knowledge of his affairs, that the fund appropriated would be sufficient to pay his debts, and that neither the crop nor any other part of his property would have to be broken in upon, for the payment of debts. Proceeds is commonly defined issue, rent or produce, and has a sufficient general signification to include the growing as well as any future crop. When a tenant in fee devises land, the growing crop passes to the devisee, and the executor is excluded from the emoluments ; even when a devise is made before sowing, and the devisor afterwards sows, and dies before summer, the devisee shall have them and not the executor. The rule is different between the executor and the heir, and the distinction is founded on the presumed intention of the devisor in favor of the devisee, but this may be rebutted by words which show an intent that the executors should have it. (Williams on Ex. 455 ; Com. Dig. B. G. 2 vol. 142; 3 Coke’s Eliz. 61 ; 2 Gill. L. Ex. 560 ; 6 East, 604; 8 East, 343; 2 Des. Eq. R.)
    Here there is nothing to contradict, but much to confirm, the intention that may be presumed from the nature and condition of the property, and the provisions of the will. ■ It was argued,- that the Á. A. of 1789, P. L. 496, 6 Stat. of S. C. Ill, controlled the proceeds, and that the executor was entitled to them; but it was not the object of the Act to deprive one in the possession of land and slaves, of the power to dispose of the crop — the statute was intended to prevent the loss of the crop, and any injury to the estate (by the death of the owner after the first of March) that had frequently occurred under the existing law, by which the slaves employed in the crop were liable to be withdrawn and sold, at a season of the year when their services might be indispensable to its cultivation, and when their price would not be enhanced, and no one would be willing to take charge of the crop or to rent the land. The slaves thus employed are put upon the footing of lands leased for life; the crop is expressly made assets, subject to debts, legacies and distribution, which distinctly recognizes the power of its being disposed of by will.
    It is therefore ordered and decreed, that the trust property embraced in the marriage settlement is not liable for the amount the defendant’s father paid out, in purchasing up the interest of the legatees of Jesse Fincher, deceased. It is further ordered and. decreed, that the plaintiff, as executor of John Rogers, deceased, do account for and pay over to the guardian of the defendant, the proceeds of the property appraised in the year of our Lord, one thousand eight hundred and thirty-eight, with interest after one year from the testator’s death. The costs to be paid out of the testator’s estate. 3 Des. E. R. 366; 1 M‘C. C. R. 148.
    The complainant appealed from the foregoing decree, and moved the Court of Appeals to reverse the same in the following particulars.
    1. Because the estate of John Rogers should have been re-imbursed the money advanced to purchase up the claims on the estate of Jesse Fincher, deceased.
    2. Because complainant, as executor of John Rogers, was entitled to the proceeds of the crop raised in 1838, and if not the whole, to one-third part thereof.
    3. Because defendant should have been ordered to pay half the costs.
    Dawkins, for the motion.
   Johnston, Ch.

delivered the opinion of the Court.

This Court is entirely satisfied with the decree of the Chancellor, so far as it is drawn in question by the first and third grounds of appeal, and leaves the decree to speak for itself on those points. But we are of opinion it should be modified in other respects.

By the terms of the settlement, the joint usufructofy interests of Rogers and wife were determined in February, 1838,. when the wife died; and the trust estate became instantly distributable between Rogers and the defendant, Mary, in the proportions of one-third to the former and two-thirds to the latter. Rogers, the father, with the lands and slaves lately belonging to the trust estate, and (as it is stated here and admitted) with some of his own slaves, proceeded to plant the crop of 1838. We must regard this crop as his own, and pitched on his own account. So far as the joint property of himself and his daughter were employed, it is the ordinary case of a tenant in common making use of property belonging to himself and his co-tenants, and accountable to them for the use of their shares. Then, regarding the crop as belonging to Rogers, who died in July, it would certainly have fallen to his representative as assets of, his estate, under the Statute of 1789, (5 Coop. Stat. 111, §23) if he had made no will. It depends, therefore, upon the terms and effect of the will which he did make, whether the crop is diverted from this destination.

The 2d clause of his will, giving to his daughter “ all the property, real and personal, which her mother had and was possessed of at the time of her marriage, together with the increase of the negroes,” certainly is no express gift of the crop growing on the land; and it could only pass with the land, in virtue of the common law authorities quoted by the Chancellor. Certainly, by the common law, not only com and grain of all kinds, but anything of an artificial and annual profit, that is produced by labor and manurance, passed to the devisee of the land, (and also to the dowress) though not to their heir. Co. Litt. 556, and see 1st Wm.’s Ex’ors, 453, notes m, n, o, p. The distinction in favor of the devisee was founded upon a presumption of an intention on the part of the testator, that he who takes the land should take the crops which belong to it; because every man’s donation shall be taken most strongly against himself; though this presumption might be rebutted by words in the will shewing an intent that the executor should have the emblements. 1 Wm’s Ex’ors, 455; Gilb. Ev. 214.

But we think that the principle carrying the annual crops with the land to the devisee, is overruled by the statute before referred to, 5 Coop. Stat. 111, §23, which enacts, “that if any person shall die after .the first day of March in any year,” the slaves employed by him in making a crop shall be continued on the land until the crop is finished, “ and such crop shall be assets in the executor's or administrator's hands, subject to debts, legacies, and distribution, (taxes, overseer’s wages, «fee. being first paid.) And the emblements of the lands, which shall be severed before the last dap of December following, shall, in like manner, be assets in the hands of the executors or administrators. But all such emblements, growing on the lands on that day, or at the testator’s or intestate’s death, if that happens after the said last day of December, and before the first day of March, shall pass with the lands.”

The fifth clause of the will has been relied on as a gift of the crop to the daughter. But our opinion is, that regarding the crop as embraced under the-word “proceeds,” the utmost that can be made of the words of the will, is that the testator intended to charge the rearing and education of the daughter .upon the annual income of the property given her, including the income or crop of the current year. To this extent we are willing to go; and it a construction as favorable to the daughter as we feel at liberty to adopt.

It ie ordered, that the decree be modified, so as to adjudge to the plaintiff, as ex’or of John Rogers, the growing crop of 1838, severed before the last of December of that year, as assets, charged, however, with the maintenance and education of the defendant, Mary A. E. J. Rogers, for the residue of said year, to be ascertained by the Commissioner, on reference.— And it is also referred to the Commissioner to ascertain what should be allowed her for the testator’s use of her share of the land and negroes in making said crop. In other respects the decree is affirmed.

Dunkin, Ch. and Caldwell, Ch. concurred.

Decree modified.  