Brooks v. Eskins
| Decision Date | 10 January 1887 |
| Citation | 24 Mo.App. 296 |
| Parties | JOHN BROOKS ET AL., Respondents, v. PETER ESKINS ET AL., Appellants. |
| Court | Kansas Court of Appeals |
APPEAL from DeKalb Circuit Court, HON. JOSEPH P. GRUBB, Judge.
Affirmed.
Statement of case by the court.
This was a suit in equity to establish and enforce a lien upon real estate.
Alexander Judy, by his last will, devised to Miner F. Judy, his son two hundred acres of land in Clay county, Missouri. The will further provided: " And it is further stipulated and required of my said son, Miner F. Judy, in this bequeathal to him, that he owe, be indebted, and pay to my sons-in-law John Brooks and James Williams, and to their heirs and assigns, for the heirs of their deceased wives, the sum of one thousand dollars, to draw ten per cent. interest per annum from the death of my said wife, until paid."
The will was probated in 1872, and a certified copy of it was filed for record and duly recorded in the office of the recorder of deeds of Clay county, on February 5, 1875. Miner F. Judy, on the twentieth day of February, 1875, sold and conveyed said land in fee to Peter Eskins, who sold and conveyed said land in fee to Ben. Estill.
By the terms of the will the sum of one thousand dollars was payable upon the death of the testator's wife. She died on the twentieth day of August, 1883. After her death this suit was instituted for the purpose of establishing said sum as a lien upon the land in the hands of the present owners, and to enforce the payment thereof by a sale of the land.
The case was submitted on an agreed statement of facts in which it was admitted that Miner F. Judy was insolvent at and prior to the institution of this suit. The only questions involved in the case are questions of law arising from the facts already stated. The case was instituted in the Clay circuit court, but sent on a change of venue to the DeKalb circuit court. The latter court decided the case in accordance with the theory of the plaintiffs. The defendants have appealed to this court.
HENRY SMITH and SIMRALL & SANDUSKY, for the appellants.
I. The courts have uniformly held that to create a charge or lien in favor of a legatee, the testator must express his intention to that effect, by direct expression or plain implication on the face of the will. If the testator designs to charge his estate it is easy to do so in direct terms, as he can convey his meaning in such clear and unambiguous manner as to show no doubt of his intention. Miltenberger v. Schlegel, 7 Pa.St. 241; Hockadorn's appeal, 11 Pa.St. 86; Wright's appeal, 12 Pa.St. 256; Montgomery v. McElroy, 3 Watts & Serg. (Pa.) 370; Owens v. Clayton, 56 Md. 129; Kirkpatrick v. Chestnut, 5 S.C. 216; Gilder v. Gilder, 1 Del.Ch. 331; Johnson v. Poulson, 32 N.J.Eq. 390; Read v. Gather's Adm'r, 18 W.Va. 263. Taylor v. Howell, 65 Ala. 1; Lupton v. Lupton, 2 Johns. Ch. (N. Y.) 614.
II. Our statute expressly provides that a purchaser from a trustee shall not be responsible for the proper application of the purchase money; the purchaser in this case, the devisee (who held the fee-simple title with the jus disponendi as its incident), will be protected. Sect. 3937, Rev. Stat.; Turner v. Turner, 59 Miss. 775; Brandt's appeal, 8 Watts (Pa.) 198. A mortgage or sale of the devised property might be necessary to discharge the legacy, and the vendee or mortgagee, under our statute, is not responsible for a misapplication of the money. No particular form of words is necessary to create a trust. Shacker's Est. v. Reed, 61 Mo. 592.
III. The English authorities, cited in 4 Ohio St. 459, have never found favor in our law, and the principle upon which that case (4 Ohio St.) finally rests, that the purchaser must look to the application of the purchase money, does not obtain under our statute. Sect. 3937, Rev. Stat. In the case of Dudgeon v. Dudgeon (87 Mo. 218), the controversy was between the original legatees and devisees, and this is not a case of equality among children, as in that case.
D. C. ALLEN, for the respondents.
I. The general doctrine of the courts of England and America, in reference to charges on land (or even on personalty), recognizes and enforces charges by implication. Such charges are where the language employed sufficiently denotes that such is the testator's design. 2 White & Tudor's Leading Cases in Equity (3 Am. Ed.) 346. The general doctrine is recognized in this state. Austin v. Watts, 19 Mo. 293; Allison, Ex'r, v. Chaney, 63 Mo. 278; Dudgeon v. Dudgeon, 87 Mo. 218. The cases in Pennsylvania are not in harmony with the general doctrine, or with the decisions in this state.
II. Where land is devised to one who, by the same or another clause of the will, is directed to pay a legacy, the legacy is not only a charge upon, but primarily payable out of the land devised. Cases cited in I. Clyde v. Simpson, 4 Ohio St. 445; Brown v. Knapp, 79 N.Y. 136; Hoyt v. Hoyt, 85 N.Y. 142; Porter v. Jackson, 48 Am. Rep. 704; La Fevre v. Toole, 11 Rep. 65.
III. The provisions of section 3937, Revised Statutes, as to seeing to the application of purchase money in payment to a trustee, is not applicable to the facts of this case. The relationship here is one of creditor and debtor on a charge.
IV. To arrive at the intention of a testator all the clauses of his will must be examined and interpreted in connection with each other, Dudgeon v. Dudgeon, supra; Brown v. Knapp, supra; Clyde v. Simpson, supra.
V. The central thought in the will, in this case, controlling the testator, was equality among his children. If third parties intervened in this case after notice, as fully appears by the record, that fact cannot affect the rights of plaintiff.
Did the will impose the legacy of one thousand dollars to the plaintiffs as a personal liability only upon Miner F. Judy; or did it also fix such legacy as an equitable charge or lien upon the land devised to said Miner F. Judy? Upon this subject Chancellor Walworth has spoken as follows: " Upon a full examination of the authorities, therefore, I am satisfied that where real estate is devised upon condition to pay a legacy, or with a direction to the devisee to pay the legacy in respect to the estate so devised to him, and because that real estate has thus been devised, such real estate is in equity chargeable with the payment of the legacy, unless there is something in the will to rebut the legal presumption; or from which it can be inferred that the testator intended to exempt the estate devised from that charge." 7 Paige 427.
In Clyde v. Simpson et al. (4 Ohio St. 462), the case just cited was approved, and, after a full review of the authorities upon the subject, it was said:
In Dudgeon et al. v. Dudgeon et al. (87 Mo. 218), the devisee was required by the will to restore equality in the distribution of the testator's estate by paying to the other children the excess given to him by the devisee. In that case it was said, that " in such case the law attaches an equitable lien on the land for the sum required to be paid." And Clyde v. Simpson ( supra ), was cited with approval.
We hold that the circuit court properly decided that the legacy was an equitable charge or lien upon the land devised.
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