Wynns v. . Burden

58 N.C. 377

• Court: Supreme Court of North Carolina
• Decided: June 5, 1860
• Status: Published

Opinion

Pv,AR.soN, C. J.

It is a general rule that any fund, which is not disposed of by a testator, shall be applied to the payment of debts before property, which is given by the will, can be subjected ; in other words, a legatee is preferred to those claiming an undisposed of residue, for he is an object of the testator’s bounty, whereas, they take by act of law, simply because, as it is not given away, and there are no debts to which it can be applied, such residue would otherwise be without an owner, or remain in the hands of the executor.

In onr case the words, “ after my just'debts are paid,” which are added to the gift of land and slaves to William D. Wynns, had the legal effect of subjecting the property given to him, to the payment of debts, in exoneration of the property which is given away by the other clauses of the will, but not in exoneration of the property which is not given away. On the contrary, the appropriation of all the land and every thing ■else, of any “ description, that I have not lent nor given away,” to the payment of debts, makes that the primary fund, to the exoneration of the property given to William I). Wynns, in persuance of the principle above stated, no other disposition being made of this residuary fund.

Should there be a surplus of this fund after payment of debts, it is settled that the distribution among the next of kin, will be made without reference to advancements.

Per CuriaM, Decree accordingly.