1. That Archibald McAllister, being seized of a plantation in Brunswick County, called Belleville, and possessed of sundry negroes (319) who had been usually employed upon it, devised the plantation and negroes to his wife, Mary McAllister, for life, remainder to his brothers and sisters, of whom James McAllister was one, and died in the year 1793. *Page 269

2. That after the death of Archibald, Mary, who was tenant for life, and James, who was one of the remaindermen, lived upon Belleville plantation, and made one family; but James had the superintendence and management of the plantation and negroes, and in the spring of 1794 planted the crop of rice in question.

3. That about the month of May, 1794, while the crop was growing, Mary died, leaving a daughter, the petitioner, Sarah Eliza, and a son, to whom she devised the residue of her estate equally, which residue included her share of said crop, and appointed James McAllister and Benjamin Mills, among others, her executors.

4. That upon the death of Mary, James proved her will, and alone qualified as executor, continued to superintend the crop in the same manner as he had done in the lifetime of Mary, and when it was grown reaped and stacked it.

5. That in the month of January, 1795, after the crop was reaped and housed, James married the petitioner, Sarah Eliza, the daughter of Mary, to whom Mary had devised one-half of the residue of her estate as aforesaid.

6. That about the month of April or May, 1795, James McAllister made a contract with one William Prestman, of South Carolina, for the sale and delivery of a large quantity of rice far exceeding the whole crop aforesaid, but no mention was made in said contract of the crop in question, nor was the crop ever delivered, nor during the life of James McAllister threshed out, but remained at his death on Belleville plantation, in the same state and condition which it was in at the time it was reaped and stacked as aforesaid.

7. That James McAllister died about the month of September, 1795, leaving his wife, Sarah Eliza, who is since married to the petitioner, William G. Berry, and upon the death of James, Benjamin Mills, one of the executors named in Mary's will, qualified, took possession of the crop, which remained upon Belleville as aforesaid, caused it to be threshed out, and sold at public vendue as the property of Mary, (320) and took bonds payable to himself as her executor.

Now, the question submitted for the opinion of the Court is, whether that half of the crop which was devised as aforesaid by Mary McAllister to her daughter, Sarah Eliza, was, by the aforesaid acts of James McAllister, vested in him, so as to go to his administrator, or whether it survived to his widow. That part of the crop in question, devised by Mary to her daughter, Sarah Eliza, never vested in James so as to make it his property. He acted only as an executor of Archibald McAllister, and it *Page 270 does not appear that any act of his extended to taking possession of one-half of said crop as his own, and without such interference we must presume he acted as executor. 2 Blac., 433.

NOTE. — See Dozier v. Sanderlin, 18 N.C. 246.