Cady v. Cady

• Decision Date: 10 February 1890
• Citation: 67 Miss. 425,7 So. 216
• Court: Mississippi Supreme Court
• Parties: J. M. CADY ET AL. v. ROBERT E. CADY

7 So. 216

67 Miss. 425

J. M. CADY ET AL. v. ROBERT E. CADY

Supreme Court of Mississippi

February 10, 1890

October 1889

FROM the chancery court of Lowndes county, HON. T. B. GRAHAM Chancellor.

The opinion states the facts.

Decree affirmed.

J. E Leigh, for appellants.

1. The devise to Robert E. Cady lapsed by the death of Adella prior to the testator's death, and therefore the legacies in item 6 of the will lapsed. The devise to him and Julia Riddick in item 6 was a joint personal charge and not a charge upon the land specifically devised; nor was it a charge upon the residuary estate. See Malone v Manning, 40 Miss. 247; Evans v. Fisher, Ib. 644. By accepting the devise, the devisee impliedly promises to pay the legacy charged upon it. He can be sued at law and the remedy is not in equity. Willard's Eq. Jur., § 1247, and cases cited.

The bequest was to be jointly and personally paid. By the death of Adella the devise to her lapsed, the joint condition failed, and the bequest lapsed on account of the failure of the condition. If a legacy is specific, upon the destruction of the property fund or security, the legatee will not be entitled to satisfaction out of the general assets. Malone v. Manning, supra; 1 Roper on Legacies, 327-328; Dillard v. Connoway, 26 Miss. 230. If the bequest directed to be personally paid is valid, it must be a charge on the property which lapsed by reason of the death of Adella Cady, and thereby became a part of the undevised estate. Knotts v. Baily, 54 Ib. 235.

2. If mistaken in above views, the complainant must seek redress out of the residuary estate. 3 Pomeroy Eq. Jur., § 1245, and cases cited; Knotts v. Baily, supra; Hoyt v. Hoyt, 85 N.Y. 142. And a charge on the residuary estate will not charge property specifically devised. 3 Pomeroy Eq. Jur., § 1247. The intention to charge land must appear from express provision or by clear implication. Ibid., § 1245. The land bought by Mrs. Short cannot be charged to pay legacies subject to a condition. 57 Miss. 776; 5 Md. 280; 2 Redf. Wills, 208; 3 Ib., 235; 36 Miss. 564; 32 N.J.Eq. 390.

Wm. Baldwin and Geo. A. Evans, for appellee.

The only questions presented are: [1] Does the will charge the legacies upon any of the lands of the testator; and [2] upon what lands.

1. A devise to A. with directions to pay B., is a charge upon the property devised to A., to the extent of the sum to be paid B., and the acceptance of the devise subject to such a direction makes the devisee subject to the personal charge of paying the money. If the devisee wants to escape the personal charge, he must refuse to accept the devise. 3 Pomeroy Eq. Jur., §§ 1244-1248, and notes.

2. The testator ignored the difference between his personal and real estate, and throughout the will blends them for all purposes.

3. It is manifest from the whole will that the purpose of the testator was that those whom he loved should be provided for in all contingencies. Every possible provision is made for their safety, and when they become of age a small sum is to be paid to each as a legacy. The will is explicit as to how much they are to get and who is to pay them. The fact that this was the only provision for them, that they were young children dependent upon the testator, should have great weight in determining that the testator intended the legacies to be paid at all events and out of the lands if the personalty should not be enough. Hoyt v. Hoyt, 85 N.Y. 148. That they were grandchildren and not children does not alter the rule. Van Winkle v. Van Houton, 2 Green's Ch. [N. J.] 187.

4. The decree properly fastened the charge upon the lands specifically devised to J. M. and Mary Adella Cady. As Mary Adella died during the testator's lifetime, her devise lapsed, but the charge on it in favor of appellee was fixed. As to the land devised to her, the other children took by inheritance as though their father was intestate. But only what was given to her was affected by her, death, not the charge on it. The only difference between this land and that devised to James M. is that he is not personally bound for the portion of the legacies required to be paid by Mary Adella, but the land devised to her remained nevertheless charged with the legacies required to be paid by her. As to this land the heirs took cure onere. It was proper, therefore, to make James M. and Burton bear this burden, share and share alike. As it is, James has received all the property devised to him and has paid the debt or legacy he was to pay, which exonorates him and the property devised to him. But he also got one-half the property devised to Mary Adella, and should pay one-half of the charge on this property.

OPINION

COOPER, J.

This is a bill exhibited by a legatee to enforce payment of his legacy by fixing a charge upon certain real estate devised by the testator.

The testator, William Cady, at the time of his death had three living children, William, James M., and Mary Adella. Two grandchildren of his deceased wife, who were infants of tender years and orphans, were members of his family, and he stood to them in loco parentis.

By the first clause of his will, the testator appointed James B. Bell his executor, and trustee of that portion of his estate devised to his son William Cady.

By the second clause he gave to said Bell, trustee, a parcel of land known as the "Eclipse Stable," in trust for his son William. By the third clause he gave to his son James M. Cady a parcel of land and the improvements thereon, designated as the "Horse Mansion." By the fourth clause he gave to his daughter Mary Adella, his residence, together with its furniture, etc.; but provided that said residence should continue to be used as the home of his children and grandchildren, so long as they should remain as one family, and declared that, "the necessary supplies and provisions for the family be a charge upon the property devised in items two and three, unless my son William and his son Burton shall cease to live with the family, in which case it shall be a charge upon the property devised to my son James M. alone in item three." By the fifth clause he directed his executor, at his discretion, to sell the residue of his estate real and personal, and the money arising therefrom and from collections of debts due him, and from all other sources, was first to be applied to the payment of all debts due by his estate, and the residue to be distributed, one-fourth to William Cady and the remaining three-fourths equally between James M. and Mary Adella.

The sixth clause of the will, which gives rise to the present litigation, is as follows: "My son James M., and my daughter Mary Adella, are to have and bear jointly, the care and expense of the education and maintenance of my grandchildren, Robert Cady and Julia Reddick. The said Robert and Julia are each to receive the sum of five hundred dollars when they become of age, to be paid jointly by the said James M. and Mary Adella Cady."

By the seventh and last clause the testator provided that, in event of the death of either of his children, the property devised to such child should be equally divided between the survivors.

Mary Adella Cady died in the life of the testator. Robert Cady and Julia Reddick were maintained and educated, as provided in the sixth clause of the will, and, upon her reaching majority, Julia was paid by James M. Cady the legacy given to her.

In January, 1885, James M. Cady executed a mortgage upon a portion of the property known as the "Horse Mansion," which has been foreclosed, and the land sold, and it is now owned by Mrs. Julia A. Short. In December of that year James M. Cady conveyed to his wife Fannie L. Cady, for life, with remainder to his daughter Annie L. Cady, in fee, the interest taken by him in the residence of the testator, which had been by will devised to Mary Adella, and which, upon her death, passed by the seventh clause of the will to the surviving children of the testator. In the year 1888 an execution issued under a judgment which had been on the -- day of December, A.D. 1887, rendered against James M. Cady, and was levied on that part of the property known as the "Horse Mansion," which had not passed by the mortgage executed by the said Cady, and at the execution sale thereof Mrs. Short became the purchaser.

William Cady, the son of the testator, has died, leaving one child, Burton Cady.

Robert Cady, the legatee, having reached his majority, demanded payment of his legacy, which not being paid, he exhibited this bill against Burton Cady, James M. Cady, Annie L. Cady and Mrs. Short for the purpose of charging the lands devised by the testator to James M. and Adella Cady, with the payment of the same.

The chancellor decreed that Burton Cady [who held the undivided one-half interest in the lands devised to Mary Adella] should pay one-half of the legacy, in default of...