Peebles v. Acker

• Decision Date: 12 December 1892
• Court: Mississippi Supreme Court
• Parties: HELEN PEEBLES ET AL. v. JOEL M. ACKER

12 So. 248

70 Miss. 356

HELEN PEEBLES ET AL. v. JOEL M. ACKER

Supreme Court of Mississippi

December 12, 1892

FROM the chancery court of Monroe county, HON. BAXTER MCFARLAND Chancellor.

The will of W. C. Blackburn, who died in 1859, contained the following clauses:

"2. As a token of the love and affection I bear to my stepdaughter, Ada Leonora McGuire, I give and bequeath to her, out of my estate, so soon as she attains the age of sixteen years, the sum of $ 1,200, and desire that my wife Mary A. Blackburn, as trustee for her, shall loan said sum after that time, at interest, taking notes, renewed annually with two good sureties, until she, the said Leonora, marries then the same to be delivered to her. And it is my desire that she receive a good English education, to be paid for out of my estate, and that she live with my said wife during her celibacy, free of charge for board. Should she die without issue surviving her, the said legacy to her to descend to my said wife and my son William L. Blackburn. Her clothing to be paid for out of interest arising from said loaned sum."

"3. The residue of my estate, real and personal and mixed, of which I may die seized and possessed, I give and bequeath to my wife and son, to descend to them according to the present laws of descent and distribution of property of said state. It is my will that my wife keep my negroes and such of my other property together, as she may deem necessary to carry on the farm, until my said son attains the age of twenty-one years, or marries, then a division to be made of all my said residue of property, and its increase, between my wife and son."

The widow, Mary A. Blackburn, was named as executrix of the will, without bond, with power to sell any of the property devised, and invest the proceeds in other property, if to the interest of the estate.

The will was probated in 1860, and letters testamentary granted to said Mary A. Blackburn, and she continued to be executrix, and resided on the land until her death in 1887, without ever having filed an account or paid the legacy.

In 1880, William L. Blackburn, the son named in the will, presumably claiming title to the land owned by the testator, his mother having only a dower interest, executed a trust-deed thereon to secure an indebtedness to appellee, Joel M. Acker. This trust-deed was foreclosed in 1885, the land being bought in by Acker, who received a deed from the trustee.

Meantime, Ada Leonora McGuire, the above mentioned legatee, was married in 1867, at the age of twenty, to J. B. Walton, and died during her coverture, in 1870, leaving one child her sole heir. This child died in 1884, leaving the father his sole heir, and consequently owner of the unpaid legacy. J. B. Walton made a written assignment of the legacy to W. D. Walton, who assigned it to Helen Peebles and others, the appellants, who are the heirs of said executrix and of William L. Blackburn.

This bill was filed in 1890 by Acker against said appellants, who are in possession of the land, claiming the same, to cancel their claim as a cloud, and for possession.

Defendants answered, and also filed a cross-bill, setting up, among other things, that the legacy owned by them is a charge on the land in controversy, and praying that it be subjected to the charge.

The answer of complainant to the cross-bill denies that the legacy is a charge on the land, and avers that, if it ever was such, it has been barred by the statute of limitations of six and of ten years. It is not necessary to state the case in any other aspect. There was a final decree for complainant, Acker, and defendants appeal.

Decree reversed and cause remanded.

Houston & Reynolds, for appellants.

1. Where the testator, after giving legacies, makes no specific devise of realty, but blends it with the personalty, he thereby charges the realty with the payment of the legacies. 1 Redf. on Wills, 278, 279; Cady v. Cady, 67 Miss. 425; Heatherington v. Lewenberg, 61 Ib., 372; Knotts v. Bailey, 54 Ib., 235; Turner v. Turner, 57 Ib., 775; Perry on Trusts, § 570; Lewis v. Darling, 16 How., 10.

2. The statute of limitations has never begun to run. The legacy is charged on the land, and is an express trust, which the executrix, by accepting the administration, became bound to pay. She has never been discharged, and has never accounted. No cause of action could accrue until a breach of the trust, and nothing has happened to set the statute in motion. Cooper v. Cooper, 61 Miss. 676; Templeton v. Tompkins, 45 Ib., 424; North v. James, 61 Ib., 761; Roberts v. Roberts, 34 Ib., 322.

Sykes & Richardson, for appellee.

Ever since 1848, our statutes have given a right of action at law to recover legacies. The trust here is an implied trust, and is not chargeable on the land; and, hence, both the six and ten-year statutes of limitations apply....