Volume 45 — North Carolina Reports

Cause removed from the Court of Equity of Bertie County, at tbe Spring Term, 1852. Lewis Bond died in June, 1851, leaving a will, in which he bequeathed as follows* :— 1. “I give, devise and bequeath to my wife, Mary E. Bond, her heirs and assigns forever, all the estate and property of every kind, real, personal and mixed, which I have acquired or may acquire by my marriage with her, and which shall belong to, or be a part of my estate at the time of my death.

Cause removed by consent from the Court of Equity for Northampton County, at the Fall Term, 1852.

Cause removed from the Court of Equity for Guilford County, at Pall Term, 1852. James Cole died sometime about the year 1848, leaving a will in which he bequeathed as follows :— “ I give and bequeath to my granddaughter, Elmira Braswell, my negroes Patty, Harnett, Fanny, Amy, Sarah and Miles, and their increase. Also a bond I hold on B. W. Braswell for $860, with interest thereon, two feather beds, and furniture.

Cause set for bearing upon the bill and answer at Tyrrell, on the last Fall Circuit, and by consent removed to the Supreme Court. The case will be found sufficiently stated in the opinion delivered by this Court.

<p>Upon a motion to dissolve an injunction, staying the collection of a debt recovered by judgment at law, tlie injunction will be dissolved, although, the answer- does not respond to an allegation of a fact, not charged to be within the knowledge of the defendant</p> <p>The rule in injunctions of this class is, the injunction must be dissolved, unless the equity of the bill is confessed by the answer, or unless the answer is unfair, evasive, and so defective as to be subject to exceptions.</p> <p>It is otherwise as to injunctions of a special nature, as to stay waste — there the bill is read as an affidavit.</p> <p>See Lloyd v. Heath et al., decided at this term.</p> <p>(The cases of Smith v. Thomas, 2 Dev, & Bat. Eq., 126 — JSdney v. Mots, 6 Ire. Eq., 234 —Purnell v. Daniel, 8 Ire. Eq., 9, cited and approved.)</p>

This was an appeal from an interlocutory order of the Court of Equity of Martin county, at Fall Term, 1852, made in the cause by his Honor Judge Settle, dissolving the injunction which had been granted therein. The plaintiff owns a large tract of land in “ Quitsney poco-sin,” and valuable only for the timber.

Cause removed from the Court of Equity of Halifax county, at Pall Term, 1852. The facts of the case are sufficiently stated in the opinion delivered by this Court.

Cause set for hearing upon the bill and answer at Person Court of equity. Fall Term, 1852, and 'by consent transmitted to the Supreme Court. John W. Williams, late of Person county, died some time in the early part of 1852, having previously made and published his last will and testament, which was duly admitted to probate, and the defendant, one of the executors therein named, took out letters testamentary, and assumed all the duties pertaining to his office.

Cause removed from the Court of Equity for the County of’ Guilford, at the Fall Term, 1852. James McNeely died intestate in the early part of the year 1849, leaving surviving him, a widow, the feme defendant, since intermarried with the other defendant, and two children, the feme plaintiffs. His widow administered on his estate, and this bill is filed for a settlement of her accounts as administratrix.

<p>In a bill filed to redeem property, conveyed to the defendant by a deed absolute on its face, a Court of Equity^vill not relieve the plaintiff, upon mere proof of the parties’ declarations. There must be proof of fraud, ignorance or mistake, or of facts inconsistent with the idea of an absolute purchase.</p> <p>(The case of Kdhj v. Bryan, 6 Ire. Eq., 283, cited and approved.)</p>

Cause removed from the Court of Equity for Carteret county, at Spring Term, 1852. Stephen Fulford died in the year 1824, having previously made and published his last will and testament, in which he devised as follows: “1 will and bequeath unto my beloved wife, Louisa, the house “ and plantation during her widowhood, and after her death, to “ my son, Thomas Fulford, and all the back lands included.

Cause removed from the Court of Equity for Bladen County, at Fall Term, 1852.

Cause removed from the Court of Equity for Guilford County., at Spring Term, 1850. In 1842, John Beard, by deed conveyed his estate real and personal to the defendant Worth, in trust to secure the payment of all his debts — the plaintiff being one of his creditors.

Cause removed by consent of parties, from the Court of Equity for Orange county, at Fall Term, 1853. The facts of the case are suificiently stated in the opinion delivered by this Court.

Cause removed from the Court of Equity of Moore county-at Fall Term, 1851. The pleadings and facts necessary to an understanding of the case, as it was considered on the hearing, are sufficiently stated in the opinions delivered by the Court. The case was argued at a former Term by Strange, Reid and Mendenhall, for the plaintiff, and by Winston, W. H. Haywood and Horton, for the defendant; and again at this Term, by

<p>A Court of Equity will not entertain a bill for specific performance, in wbiclx the material terms of the contract sought to be enforced, are not distinctly set forth.</p> <p>Hence, a hill brought by the widow against her husband’s devisees and representatives for specific performance of an ante-nuptial agreement to settle upon her ts a plantation and permanent home fox' life,” must distinctly set forth what land, where situate, the uumber of acres, &c.</p> <p>Xn equity, as at law, the proofs must correspond with the allegations of the bill 5 and the Court will neither allow substantial amendments of the bill to be made on the hearing,} in order to meet objections on account of variance, nor, except under peculiar tíircum » stances, will it remand the cause, with a view to having such amendments made in the Court helow.</p> <p>See Williams v. Chalmers > ante.</p> <p>(The case of Foster v. Jones, 2 Dov. & Bat. Eq. 201, cited and approved.)</p>

The plaintiffs filed their petition in the Court of Equity for Bladen County, at Spring Term, 1852, praying for the sale of certain lands therein described.

Cause removed from the Court of Equity of Stanly county, at Fall Term, 1852. The plaintiff by her bill, filed 11th February, 1851, alleges that several years since, her father, John Mason, now deceased, contracted with one Henry Davis for the purchase of a small tract of land, at the price of fifty dollars.

The bill was filed by the next of kin of Thomas W. Lilly, deceased, against the defendant as guardian, and afterwards administrator, of the said deceased, for an account and settlement. The defendant, in his answer, submitted to an account; and, upon a reference to the Clerk and Master, he made a report in which he stated the defendant’s accounts, both as guardian and administrator.

<p>Where the step-father becomes g-uardian to his step-child, he is not entitled to charge for board and other necessaries, furnished his ward antecedently to his appointment as guardian — the infant being incompetent to contract therefor.</p> <p>Hence, where such guardian procured a release from the husband of his ward, soon after his marriage, of all his liability to account for property of the infant converted by him, and the consideration thereof was the alleged indebtedness of the ward for board &c., before he became guardian, a Court of Equity will restrain him from availing himself of such release in a suit at law by the ward on his guardian bond — the same being without consideration.</p> <p>(The casé of Long v. Nofcom, 2 Ii‘e. Eq. 354, cited and approved.)</p>

<p>A widow who dissents from her husband’s will, is entitled, under the Act of 1836, to the same share of her husband’s personal estate, as in case of his intestacy,</p> <p>therefore, where the testator, by his will, gave to his wife certain slaves and other personal estate, and the executors hired out all the slaves, and the proceeds of those bequeathed to the widow were less in proportion than those of others, and one of the slaves bequeathed to her died: — Held, in a bill brought by the.representatives of the widow, (who dissented,) that she was entitled to an account of the estate, as of the time of settlement, and not of the death of testator. *</p>

<p>However the general rule may be, both here and in England, as to whether a will and codicil, when admitted to probate as one instrument, must be so construed, yet this Court will not, in determining the particular case before it, overlook the fact that the testator calls the second paper a codicil, and that the bill and answer so designate it.</p> <p>Where a testator by his will directed his slaves, consisting of a mother and her children of various ages, to be removed in as short a time as practicable, and with the intent to a permanent settlement in some State or country where emancipation was unrestricted, and there to be entirely emancipated, and also made provision for their subsistence and education; and eight years thereafter, made a codicil and republished his will, and gave to trustees a house and lot in Ncwbern and certain personal property, including household furniture, and a cow and calf, upon trust that they should permit the mother to use» occupy and enjoy the same during her life, and at her death, to surrender up the estate to the other slaves: — Held, first, that this provision indicated a change of mind of the testator, and his intention that the mother should reside on thp lot — so as to revoke the provision of the will for’her removal', and secondly, that as the testator had thus evinced a disposition to evade the law as to the mother, it ought to appeal* by the codicil, that he wished the fate of the children to be different from hers, or it must be presumed he intended that they also should remain.</p> <p>(The cases of Hayioood v. Craven, 2 Car. L. Repos. 557, Pendleton v. Blount, I Dev. & Bat. Eq. 491, Sorrey v. Bright, Ibid 113, and Lemmond v. Peoples, 6 Ire. Eq. 137, cited and approved.)</p>

Cause removed from the Court of Equity for Wake at Spring Term, 1848. The cause was heard upon exceptions to the Master’s report, which are sufficiently stated in the opinion delivered by the Court.

Cause removed from the Court of Equity for Davidson County, at Spring Term, 1852. The bill was filed by the plaintiff, as the administrator de bonis non, cum testamento annexo of Alfred Smith, to obtain a construction of his will. All the legatees who were living, and the representatives of those who were dead, were made parties.

Cause removed from the Court of Equity for Hyde county, at Fall Term, 1852. The bill is filed to follow the assets of the estate of Benjamin Russell, who died in the year 1847. Upon the death of said Benjamin Russell, administration upon his estate was by the proper authorities granted to Charles B. Russell, who entered into bond with the plaintiffs as his sureties.

At August Terra, 1849, of this Court, the interlocutory order which had theretofore been granted in this cause in the Court below, dissolving the plaintiffs’ injunction, was affirmed, (6Ire. Eq Rep. 278) ; and the plaintiffs having retained ’ their bill as an original, and amended the same, and replied to the answer, the cause was, by consent, removed to this Court, from the Court of Equity for Burke County, at Spring Term, 1851.

<p>Under the 47th section of the Rev. Stát., ch. 31, no person can he allowed to sue in forma pauperis, in a merely representative character.</p>

<p>The tax imposed upon legacies by the Act of 1846, ch. 72, is to be paid by or charged to the legatees or distributees respectively.</p>

This was a bill filed by the complainant, as executor of the will of William H. Whitfield, deceased, against the. legatees and devisees in said will, in order to obtain a construction of certain clauses therein contained, and which are as follow :— “ Itém 3d. — I give unto my youngest child, William Haywood Whitfield, the sum of three thousand dollars, to be due and paid when he comes to twenty-one years of age, out of the proceeds of the sale of my lands, and one negro girl…

The Bill in this case sought an injunction against the purchaser of a slave, and the facts disclosed by the pleadings and evidence were as follow :— In April, 1849, Mary Anne Thacker made a deed of gift for the slave in controversy to her son, the complainant reserving to herself at the same time a life estate. She was at that time in .debt to the amount of about one hundred and fifty dollars ; she was about seventy-one years of age, and quite infirm.

<p>A testator, leaving a wife and six children, made tlie following provisions for them by will: — u I give and bequeath to my loving wife, as long as she is single after my death, all my property, real, personal and mixed. I wish the negroes kept on the plantation if manageable; if not, I wish my executors to hire them 'out privately to honest, humane men. My children I wish educated from the proceeds of the plantation and funds in hand. When my eldest son arrives at legal age, I wish him to have a distributive share of the estate’, and my other children, when they shall have arrived at the same age, I wish them to have a like share with their eldest brother, provided the estate has retained or accumulated property in the mean while. Should my wife marry again, I wish her to have what the laws of her country will allow her, viz.: one-third of the estate. If she remains single till her death, I wish my children to be made equal in their several lots of my estate; and if she marries and deducting her portion, then a like share of the residue—</p> <p>Held, 1, That the children are all entitled to be maintained and educated out of the profits of the estate, free of charge, and when they respectively arrive at the age of twenty-one years, they will be entitled to their respective shares, without being re- . quired to account for the expenses of their maintenance and education.</p> <p>2. That the expenses of the maintenance and education of the children are to be paid out of the profits of the plantation, and the interest of the funds on hand.</p> <p>‘3, That the term “funds on hand” means cash on hand, and money due the estate by bond, note or other security; and that the children are respectively to receive such an education as is suitable to their estate and condition in life.</p> <p>4. That the widow is entitled, while she remains single, to all the issues, rents, profits and interest of the estate, so far as the same may be necessary in the first place, for her decent support, and then she is entitled to all that remains after the proper maintenance and education of the children.</p> <p>5. That the children, until they shall respectively come of age, are entitled to nothing out of the estate but what is necessary for their maintenance and education.</p> <p>6. Each child on coming of age will be entitled to one-sixth part of the capital of the whole estate, after deducting the widow’s dower in the land, and a child’s part of the personal property, to wit, one-seventli.</p> <p>7. The share now due. to the child who has come of age, is to be allotted to him absolutely, and he cannot hereafter be called upon to refund any part thereof.</p> <p>8. The executor must permit the widow to retain possession of all the estate, except such part as may from time to time he allotted to the children, as they respectively come of age.</p> <p>Held, also, That the testator intended that his widow, in case she married again, should have dower in his lands, and a child’s part of all the personal estate absolutely..</p> <p>In construing wills, the Court will confine its opinion to things to which it can give effect by a decree, and will not speculate upon questions in which the parties may never be interested.</p> <p>(The case of Tayloe v. Bond, ante p. 5, cited and approved.)</p>

The question before'the Court in this case was raised by a motion to reopen biddings for a tract of land, which, having been allowed in the Court below, came up by the appeal of the former purchaser. The bill praying a sale of the land was filed to Fall Term, 1851, of the Court of Equity of Currituck county.

<p>This cause was transmitted to this Court from the Spring Term, 1852, of the Court of Equity of Randolph county. The pleadings and facts are sufficiently stated in the opinion delivered by the Court.</p>

This cause was transmitted from the Court of Equity for .Pitt County at Spring Term, 1852. The case is sufficiently stated in the opinion of the Court. 1. The plaintiff was bom within 280 days from the execution of the deecf, and so was in esse. Coke Lit. 139, n. b. Infants en ventre sa mere are capable of taking a gift.

<p>A creditor Having sued His deceased debtor’s administrator, obtained judgment for so. much of his debt as the jury found covered the assets, and for the remainder, judgment was entered for the defendant. Thereupon a bill was filed to recover this balance from certain persons alleged to be fraudulent donees of the debtor:—</p> <p>Held, 1, That the bill Could not be sustained, because the creditor, by his.own allegations had a plain remedy at latV against the defendants, as executors de son tort.</p> <p>2. That, admitting the creditor’s right to come into equity for discovery, or an account, of for the purpose of following the fund, still his bill must be framed according to the course of the Court — matting the personal representative of the debtor a party in that character; stating that the debtor left no real estate, and showing that the alleged debt has been established by a judgment at law. ,</p> <p>S¡ That the judgment in question, being in favor of the administrates, is not a judgment of the character required.</p> <p>(Tlie case of Dozier v. Dozier, 1 Dev. & Bat. Eq., 96, cited, distinguished and approve cd; the cases of Rambaut v. Mayfield, 1 Hawks, 86; McKay v. Williams, 1 Dev. & Bat. Eq., 398; Brown v. Long, 1 Ire. Eq., 192, and Peeples v. Tatum, 1 Ire. Eq.> 414, cited and approved.)</p>

The bill in this case was filed to Spring Term, 1850, of the Court of Equity for Pitt county. Having been set for hearing, upon the bill, answer and proofs, it was, at Spring Term, 1852, transferred to this Court.

This bill was filed at Spring Term, .1853, of the Court of Equity for Cumberland county, by the plaintiff, to obtain a construction of his testator’s will. At the same Term the cause was set for hearing upon bill and answer, and transmitted to this Court. No statement is required beyond what appears in the opinion.

The bill in this cause was filed at Spring Term, 1852, of the Court of Equity for New Hanover county. At Spring Term, 1853, the cause was set for hearing upon the bill, answer and proofs, and transmitted to this Court. 1. That the second mortgage was void, as not having been proved and registered according to law. Smith v. Cast fix, 5 Ire. 518. Carrier v. Hampton, 11 Ire. 307. 2.

<p>A testator bequeathed to his debtor the bond which constituted the debt. After the ma--Ifing of the will, he, for the convenience of other creditors, caused the debtor to renew the bond, adding to the principal the interest that had accrued : — Held, that the renewal was no ademption of the legacy.</p>

<p>The personal representative of a deceased mortgagor is not a necessary parly to á bill filed for a foreclosure of a mortgage of land.</p> <p>Where a bill by its prayer submits to a sale of the land mortgaged, a sale is usually ordered, as most convenient for both parties.</p> <p>(The case of Ingram v. Smith, 6 Ire. Eq. 97, cited and approved.)</p>

Tms bill in this case was filed to the Fall Term, 1847, of the Court of Equity of Anson county. It. alleged that one Reading Anderson of whom the complainant was administrator, had been doing business for tlie complainant for several years previously to his death in 1846.

The bill in this case was filed to Fall Term, 1852, of the Court of Equity for the county of Robeson. After the defendant had filed his answer, orders of replication and commission were taken ; and at Spring Term,'1853, the cause was set for hearing on the bill and answer, and transmitted to this Court.

In this case the complainant’s bill, which was filed to Spring Term, 1853, of the Court of Equity of Cumberland county, alleged that on the 10th day of December, 1849, she leased to the defendant James R. Grist, until the 1st of January, 1858, all thepines.suit* able for making turpentine, that might be found on certain tracts of land belonging to her, and lying in the counties of Cumberland and Robeson ;■ that she excepted from that lease the lands, within the limits…

<p>The material facts of this case are to be found in the opinion of the Court and in the case referred to therein.</p>

The bill in this case was filed to Spring Term, 1852, of the Court of Equity for Martin county. A demurrer to it was put in by the defendants ; and at Spring Term, 1853, the cause was set for hearing, and transmitted to this Court.

Fuedemck Johnson, Sen., died in the year 1819, leaving a will, which was duly admitted to probate in the County Court of Craven county, and David Chapman one of the defendants, is surviving executor thereof. The testator, by his said will, gave in different proportions the whole of his estate, real and personal, to his wife Penelope and his two 'daughters, Sally and Mary, his only children.

The bill in this case was filed at Spring Term, 1852, of the Court of Equity of Franklin county, by the late William H. Haywood, Esq , for the administrator of Stephen Sparkes, who had married Elizabeth White, against Drucilla White, Shemuel Kearney and Richard W. Kearney ; the last two being trustees under a deed to secure creditors, made by the plaintiff’s intestate.

Causes removed from the Court of Equity for Henderson county, at Spring Term, 1848. In 1831 Thomas Jones died intestate, seised and possessed of a tract of land in the pleadings mentioned, and leaving eleven' children, to wit, Martha, wife of Hiram Carland, and the defendants in the case first above stated.

This was an appeal from an interlocutory order, made by bis Honor, Judge Ellis, at Iredell, on the last Spring Circuit, dissolving the plaintiff’s injunction, which had theretofore been granted in the cause.

• Undee. a petition filed in the Court of Equity for Cleaveland by the heirs at law of one George Champion for a sale and partition of his real estate, Richard Champion, one of the heirs, became the purchaser of two tracts of land at the price of $1,875, for which sum he gave his bonds to the Clerk and Master ; but he died before the same were paid.

Cause removed from the Court of Equity for Mecklenburg, at Spring Term, 1851. The defendant, Robert B. Wallace, in 1834, purchased the tract of land in controversy, from one Alexander Wallace, and took his deed therefor. In 183T, Robert bargained and sold the land to the defendant, Frederick, who paid the purchase money, $75., and took,an assignment from Robert, of Alexander Wallace’s deed to him.

Cause removed from the Court of Equity for Mecklenburg, at June (special) Term, 1852. The pleadings and facts are staled in the opinion delivered by this Court.

Cause removed from the Court of Equity of Rutherford county, at Spring Term, 1853.

William S. M. Baxter, a minor, died intestate, leaving as bis only next of kin, the plaintiff, bis mother, and the feme defendant, Sarah C., his sister, intermarried with the other defendant, William Costin, who administered on his estate.

.This was an appeal from an interlocutory order of his Honor Judge Caldwell, dissolving the plaintiff’s injunction, at Rowan Court of Equity, Spring Term, 1853.

<p>James BrowN died intestate, and seised of a tract of land, leaving the plaintiff Nancy bis widow and the other plaintiffs his heirs at law. The personal estate of the said James being insufficient to pay bis debts, his real estate, descended to the plaintiffs, was, in 1833, after regular proceedings had, sold to satisfy executions in the hands of the sheriff; and the land in controversy was, at the sheriff’s sale, bid off by the defendant’s testator, William Carson, who took a deed therefor.</p> <p>The plaintiffs allege, that before the sale of said land, they had made an arrangement with one Berryhill to raise the necessary funds for the purchase of the same, and that the said Berryhill and James, one of the heirs of said intestate, attended the said sale— Berryhill canying with him some $250 in cash, wherewith to purchase the said land for and on behalf of the widow and children, -the plaintiffs. But the plaintiffs allege, that before the’ sale of the land was made, Carson, the defendant’s testator, (at whose instance the judgment was obtained under which the land was sold,) after understanding from them, the said Berryhill and James Brown, their intention to purchase, and the fact of Berryhill’s having the sum of $250 for that purpose, proposed to them that he, Berryhill, should not bid for the land, and that he, Carson, would buy the same, and would give the widow and children, the plaintiffs, the right to redeem the same when it suited their convenience : and this proposition having been assented to, Carson bid off the land at the price of fifty dollars — the same being worth, as the plaintiffs allege, some six hundred or a thousand dollars. And the plaintiffs expressly charge that the said Carson, under said agreement and understanding bid off said land, and that they were to redeem the same, and have a conveyance of the title purchased by him, on their payment of the said sum of fifty dollars and interest. And they further state, that at the time of said sale and ever since, they have lived on the said tract of land and have cultivated the larger portion of \h& cleared fields thereof; but that said Carson, shortly after his said purchase, took possession of a part of the same, to wit, some thirty-five or forty acres ; and they allege that out of the profits thereof he has been fully reimbursed and paid the amount of his said bid and ipterest thereon, and, indeed, that on a fair account in this behalf, he is indebted to the plaintiffs.</p> <p>The plaintiffs further allege, that the said Carson, during his life, always recognized their right to a re-conveyance of the said land, and that on several occasion when they proposed a settlement of the matter, and to lake a deed, he postponed them, but still admitting their right and his said agreement — -saying that they would not suffer any injury, as they were living on the land, and cultivating such parts as they needed ; and they allege that he recognized and admitted their equity in this behalf even to the hour of his death. The prayer is to have defendants, the executors and devisee of said Carson, declared trustees for the plaintiffs — for a conveyance — and an account.</p> <p>The defendants answer, and admit the purchase by their testator, but being ignorant of the material facts alleged in the bill, hold the plaintiffs to proof thereof. And they rely on the length of time which has elapsed since the alleged agreement was made, upon the statute of frauds, and statute presumption of the abandonment of the right to redeem.</p> <p>The plaintiffs replied to the answer, -and the parties proceeded to take testimony ; after which, the cause was set for hearing, and by consent, transmitted to the Supreme Court for hearing.</p>

Cause removed from the Court of Equity for Cleaveland county, at Spring Term,,1853. The allegations of the bill are sufficiently set forth in the opinion delivered by this Court, and the Reporter deems it unnecessary to state the pleadings further, which are very voluminous — the defendants’ answer denying any equity in the plaintiff, according to his own .showing, upon which point the case turned in this Court.

The plaintiff, in 1848, executed his single bond to John and ’William Richards, partners in trade, for the sum of $225. Shortly thereafter John died, leaving a will and the defendant Coffin bis executor.

Cause removed from the Court of Equity for Henderson county, at Spring Term, 1853. The defendant had, some twenty years before the filing of the bill, intermarried with one Rhoda Gadd, who, previous to and at the time of their marriage, owned the two negro slaves and other personal property named in the pleadings ; and the parties, being pretty far advanced in life, bad no prospect of any issue.

Ikt 1826, Joseph Beal, Sen., died seised of a tract of land containing about two hundred and ten acres, as set out in the pleadings, and leaving a will by which be devises the same to his wife for life, and after her death, devises to Joseph Bea], Jr.,'his .son, one hundred acres of the land, and directs that the rest of the land (except one acre for the Meeting House,) should, after the death of his wife, be sold, and the proceeds of the sale be equally divided among his…

<p>Some time before 1829> a deed was made conferring a life estate in land upon A. and Ilia wife; and about the Same time A. conveyed this land in fee to B.; the wife survived A., and died in 1849 :■ — Held, that the possession of B. did not become adverse to those having the remainder after the life estate, until after the death of A.’s wife.</p> <p>Where a deed is made to husband and wife, they are seised of the entirety as one per* son, and the survivor will take the whole estate.</p>

This cause was set for hearing upon the bill and answer, and removed from the Court of Equity for Lincoln, at its Spring Term, 1852. The pleadings and exhibits are stated in the opinion delivered by this Court. *

This iras a bill filed by the legatees in the will of John I). Graham, deceased, against, the executor, for a settlement of the estate and payment of the legacies respectively. The will was as follows Calling to mind the uncertainty of life and the certainty of death, I, John D. Graham, of Lincoln county, North Carolina, do make, ordain and publish this, as my last will and testament. I request my just debts to be all paid.