The
appellee, F. A. Raynolds, recovered, in 1888, a judgment in a
court of law for $44,941.60 against Cassius B. Hanna and his
wife, Hattie L. Hanna. An execution issued, and has been
returned nulla bona. Upon this footing this bill was filed to
subject an alleged equitable interest arising under certain
trusts created by the will of Robert Hanna, father of
Cassius. The executor, J. Twing Brooks, denies that Cassius
Hanna has any estate or interest under the will of Robert
Hanna which may be subjected by his creditors. The circuit
court held, on final hearing, that Cassius had an equitable
interest, until the final distribution of the estate of
Robert Hanna, in an undivided one-fourth of the net income
thereof, which might be subjected to the payment of the
complainant's judgment. Both parties appealed; the
complainant contending that Cassius has an undivided half
interest in the income which may be subjected by his
creditors; the executor insisting that he has no interest
under the bill which can be subjected by complainant.
The
clauses of the will which bear upon the questions for
consideration are these:
'Item
4. Excepting the household articles devised to my wife in
foregoing item three, I devise and bequeath to my executor
hereinafter named, in trust to be disposed of by him as
hereinafter provided, all my property, real and personal
of any and every description, wherever the same may be
situated, and however my interest or title in the same
evidenced; I hereby giving my said executor full, ample
and complete power to manage, direct, and control the same
and every part thereof, according to his own best judgment
and discretion; also, to rent, sell, or improve the whole,
or any part, of my real estate, and in such manner, and
upon such terms and conditions, as he may think best, and,
in case of sale, either at public or at private sale, as he
may deem best, and to make, execute, and deliver deed or
deeds in fee for the same. I also hereby authorize and
empower him to dispose of, whenever, in his judgment, it
will be best for my estate so to do, any and all of
my personal property, stocks, bonds, chattels of every
kind, either at public or private sale, and to invest, and
from time to time reinvest, in such manner, and in such
property, whether real or personal, as he may deem best,
the proceeds arising from the rent or sale of my real, and
the income or sale of my personal, estate; and, in case of
purchase of real estate by him as aforesaid, I direct that
the title to the same be taken to himself as executor and
trustee of my estate,--it being my wish and purpose to
invest, my executor hereinafter named with power to manage
and control my entire estate according to his own judgment
and discretion, the same as I could do myself, if living,
and subject only to, and be restrained by, the special
limitations herein imposed and expressed by me.'
'Item
7. I hereby authorize and direct my executor, as soon as
convenient after my death, and in case my son, Cassius,
shall so request, to purchase a home for him at a cost not
to exceed twelve thousand dollars, taking title to himself
as executor and trustee as aforesaid, the same to be kept
as and for a home for Cassius, free of rent, so long as he
desires so to occupy the same; but in the final settlement
of my estate, as hereinafter provided, I direct that the
money expended by my executor in insurance, taxes, and
assessments on the home so occupied by Cassius, together
with six per cent. interest per annum on the cost of said
home for the time it shall be so occupied by him, shall be
deducted from the amount that is to be paid to Cassius or
his children, as is hereinafter provided, or, if my said
executor shall deem it best to deduct the amount of said
annual insurance, taxes, assessments, and interest from the
annual income that is to be paid to Cassius or his
children, as hereinafter provided, he is hereby authorized
and directed so to do.
'Item
8. So far as the same is practical, in conformity with the
other provisions of this will, I desire the income of my
estate each year to be applied as follows: First, to the
payment of taxes, insurance, assessments, and repairs that
may be levied or become necessary to be made on any part of
my estate, together with the necessary expenses of the
administration of the same, including the compensation
hereinafter provided to be paid to my executor. Secondly,
to the payment of the annuity of two thousand dollars
hereinbefore provided for my wife, Harriet A. Hanna.
Thirdly, after the payment of the items hereinbefore
mentioned, I desire the remainder of the yearly income or
increase of my estate that shall be collected or received
to be divided into two equal parts, one part to be expended
by my said executor for the benefit of my son, Cassius, and
his family, so long as he (Cassius) shall live; or, in case
my said executor deem it prior and best, but in no event
otherwise, he may pay the whole or any part of such portion
of the yearly income of my estate (subject, however, to the
deduction hereinbefore provided to be made of insurance,
taxes, assessments, and interest on the cost of the home to
be proved for him as mentioned in item 7) to my son,
Cassius, in cash. The other of the said equal parts of
which the net yearly income of my estate is to be divided
as provided in this section I direct my executor to expend
for the benefit of the children of my deceased daughter,
Arrial T. Whitaker, in such manner that each of the
children shall have an equal and the same portion of said
part with the other. In case any of said children of my
daughter, Arrial, should die without issue before the final
division of my estate, then the share of the income of my
estate of such child or children so dying shall be divided
between the other children of my daughter, Arrial, or the
issue of them, they in such to take per stirpes and not per
capita; and in such case any of the said children of my
daughter, Arrial, should die before the final distribution
of my estate, leaving issue, I direct that the share of the
income of my estate which should be coming to such child of
Arrial if living shall be paid to the issue of such child,
share and share alike; and I hereby authorize my executor
to pay in cash, if he shall deem best, the whole or any
part of such share of the income of my estate as may be due
to each of the children of my daughter, Arrial, as
aforesaid, he to take, in such case, the receipt of the
guardian or such other person who, for the time being, may
be charged with the care or custody of said children, or
either of them, for any payment so made; and in the
expenditure of income for the benefit of my son, Cassius,
and his family, as well as for the children of my daughter,
Arrial, I desire my executor to have in view the maintenance
and education of my grandchildren on a scale comporting with
their condition and rank in life; and if, in the judgment of
my said executor, the net annual income of my estate, as
above described, cannot all be properly and judicially
expended or advanced to Cassius and his family and to the
children of Arrial, as hereinbefore described, I authorize
and direct my executor to invest such surplus as may remain
after what he deems a reasonable expenditure has been made
for the benefit of the child or grandchild who would be
entitled to it under the foregoing plan of distribution.
'Item
9. I will and direct that my executor shall continue to
control and manage my estate, and distribute and invest the
annual income of my estate, as hereinbefore provided, from
year to year, until the youngest child of my daughter
Arrial, then living, shall come of age, or until such further
period as, in his opinion, the welfare of my son, Cassius, or
of my grandchildren, will be thereby promoted, and whenever
it shall so seem prudent to my executor, but in no event
until then. I authorize and direct him to divide and
distribute the whole of my estate among my grandchildren,
share and share alike, to each that may be living at the time
of such distribution, or if, before such final distribution,
any of my said grandchildren shall have died leaving issue,
the issue of such deceased grandchild shall take the share
that would be due to such grandchild if he or she were
living, share and share alike. And I hereby authorize my
executor, if at any time it shall seem suitable and prudent
to him, to advance any portion of the final share of my
estate to either of my grandchildren that would be due to
them under the plan of distribution herein provided, and in
such final settlement I direct my said executor to invest a
portion of the share hereinbefore provided for each of my
grandchildren in a home for such grandchild, in which said
child shall have a life estate, with the remainder to his or
her heirs, it being my wish and purpose that each of my said
grandchildren shall be secured in a home beyond any
contingency during the period of his or her life; provided,
however, that such final distribution of my estate shall in
no event be made during the lifetime of my wife, Harriet A.
Hanna, nor shall advances be made to my grandchildren, as
hereinbefore provided, to such an extent as to impair the
annuity of two thousand dollars which is to be paid to my
wife as aforesaid: and provided, further, that before any
such advances are made, or before any advances are made as
hereinafter provided may be made, to my son, Cassius, for the
benefit of himself and his children, and in any event before
the final distribution of the principal of my estate, as
aforesaid, shall be made, I wish and direct my executor to
ascertain the amount of...
