Eatherly v. Winn
| Decision Date | 29 May 1939 |
| Docket Number | 33729 |
| Citation | 189 So. 99,185 Miss. 742 |
| Court | Mississippi Supreme Court |
| Parties | EATHERLY v. WINN et al |
Suggestion Of Error Overruled June 12, 1939.
APPEAL from the chancery court of Washington county HON. J. L WILLIAMS, Chancellor.
Proceeding in the matter of the estate of Mrs. Annie P. Eatherly deceased, wherein Wilson R. Eatherly filed a claim for taxes which was opposed by Eustis H. Winn and another, executors. From a decree disallowing and denying the claim, Wilson R Eatherly appeals. Reversed and rendered.
Reversed and decree here for appellant.
Ernest Kellner, of Greenville, for appellant.
The will provides that her executors shall pay the debts of Mrs. Eatherly and devises the land to appellant charged with one-half the mortgage debt on the entire tract of land. These are the only provisions in the will as to the payment of the debts of Mrs. Eatherly.
Sections 1643, 1675, Code of 1930.
The provisions of the will of Mrs. Eatherly that the executors pay all her debts, except, of course, the mortgage debt specifically charged against the land devised to appellant, and the foregoing sections of our code demonstrate the error of the Chancellor in his holding that appellant should pay the taxes on the land devised to him.
The taxes in question were due and owing by Mrs. Eatherly on December 15, 1937.
The taxes in question were a debt of Mrs. Eatherly recoverably by action against her.
The will of Mrs. Eatherly directs her executors to pay her debts. Section 1675, Code of 1930, makes it mandatory upon an executor or administrator to pay all taxes due on the property of an estate. Section 1643, Code of 1930, makes the personal estate of a decedent, if sufficient, as in this case, primarily liable for the debts of a decedent, whether he died testate or intestate, in the absence of a direction to the contrary, as the mortgage indebtedness against the land devised to appellant in this case.
The general rule as to the order in which a decedent's property is liable for the payment of his debts is that the personal estate must be first applied, and then the realty, and the application of the rule in a particular case is not prevented by the fact that it will result in depriving legatees of participation in the estate.
It is very generally considered that, even though a debt is secured by a mortgage or other lien on land, if it is a personal debt of the decedent, it is to be paid primarily out of the personalty, although the personalty cannot be applied to relieve land of a lien which does not involve any debt of decedent.
Taxes or assessment on realty, if assessed or becoming due before decedent's death, are payable primarily from the personalty, but those accruing subsequently are a charge on the land.
24 C. J. 460, sec. 1262; Gordon v. James, 86 Miss. 719; Anderson v. Gift, 156 Miss. 736; Gidden v. Gidden, 176 Miss. 98; Tonnar v. Wade, 153 Miss. 722.
I concede, of course, that a testator may, as Mrs. Eatherly did, designate and appoint an umpire to settle disagreements in the administration of his or her estate, and that the decision of an umpire so appointed is final, subject, of course, to certain well defined restrictions.
So far as I have been able to find there is no decision of this court squarely in point on the question. However, there are certain related principles which have been definitely decided by this court.
A testator may dispose of his property as he wishes if it does not violate law.
Low v. Bank, 162 Miss. 53; Holcomb v. Holcomb, 173 Miss. 192.
The intention of the testator ( the will as a whole) is the polar star for inquiry.
Under either one or both of these principles the contention that the decision of Judge Wasson is final and binding on the appellant is manifestly unsound.
69 C. J. 124, sec. 1166; Pray v. Belt, 1 Peters 670.
I concede, of course, that the decision of Judge Wasson, although it does not assign any ground therefor, was made in utmost good faith, however, I respectfully submit and earnestly urge (a) that it is contrary to the plain intention of the testator in that it attaches a condition to the devise to Wilson R. Eatherly not attached by the testator: (b) it contradicts the clear provision of the will that the executors pay all the debts of the testator except the mortgage indebtedness against the devise to Wilson R. Eatherly; and (c) it violates our statute and the decisions of our court that the lands of a testator cannot be resorted to for the payment of debts (unless specifically charged therewith) until the personalty is exhausted.
Although not an issue, the Chancellor held that if the taxes on the land devised to the appellant should be paid by the executors, thereby and under the provisions of section 1643, Code 1930, the appellant would be liable for rent of the land devised to him for the year 1938. With utmost deference to the learned Chancellor, I am frank to admit that I do not follow his reasoning in this holding, and I assert that Section 1643, Code 1930, does not sustain the same.
Under the provision of the will creating the devise, if, as she did, Mrs. Eatherly should die before April 1, the appellant was to have possession of the land as soon as the will was admitted to probate. Therefore, regardless of the liability or not of the appellant for the payment of the taxes on the land for the year 1937, he could not be liable for rent of the land for the year 1938.
G. Ramsey Russell and Wynn, Hafter & Lake, all of Greenville, for appellees.
Immediately upon the death of Mrs. Annie P. Eatherly on January 11, 1938, the lands devised to Wilson H. Eatherly became the property of Wilson R. Eatherly, the appellant, and Wilson R. Eatherly became the owner of those lands within the meaning of Section 3122.
Beach v. State, 178 Miss. 336, 173 So. 429.
Wilson R. Eatherly then was personally responsible and liable for the payment of those taxes and being so personally responsible his obligation to pay those taxes was primary. The payment by Wilson R. Eatherly of the taxes for the year 1937, on the lands devised to him, therefore, was a payment of his own personal obligation. Therefore, having paid his own obligation, the appellant is not entitled to reimbursement of this payment from the appellees, or from any other person.
The appellant relies upon Section 1643 and 1675 of the Mississippi Code of 1930. Section 1643 is not in point in that it simply provides that the property of the decedent shall stand charged with payment of all debts and funeral expenses and expenses of settlement of the estate. We have already assumed, for the purposes of argument, that Mrs. Eatherly was responsible for the payment of these taxes and that the taxes constituted a debt against her estate.
Section 1675 is not pertinent for the reason that it simply imposes upon the administrator or executor the duty to pay taxes on land belonging to the estate.
In all the cases that we have examined in regard to this point, the facts were that it was necessary to carry on the administration of the estate for some period of time holding both real and personal assets in the estate. Specifically in such a situation, it would be the duty of the executor or administrator to pay the taxes accruing against the real and personal property in order to protect the estate and the creditors of the estate. Moreover, in none of the cases decided under this section is there any intimation or decision that if executor or administrator should pay such taxes he would not be entitled to reimbursement from the devisee of the lands for any sums paid out for taxes upon such lands.
There are no cases in this state where the exact question at issue has been determined. We respectfully submit that neither equity nor justice will be served if the appellant, who was benefitted under the will of the deceased, Annie P. Eatherly, to the extent of a valuable section of land, should be allowed reimbursement from the estate of Annie P. Eatherly for taxes already paid by him upon the lands devised to him.
Assuming further, for the purposes of argument, that under our statutes, and the decisions of this court, the deceased, Mrs. Annie P. Eatherly, was personally obligated for the payment of the 1937, taxes upon the lands herein involved, and further that Wilson R. Eatherly was not liable as owner of said lands under the provisions of Section 3122, Miss. Code of 1930, for the payment of 1937, taxes thereon, we submit that the opinion and decision of Judge Wasson, named by the testatrix, Mrs. Annie P. Eatherly, in her will as umpire in the event there should be a difference of opinion on any matter between her executors, was final and binding.
Unless the decision of an umpire does violate a clear rule of law or does depart from the clear intention of the testatrix, the decision of such an umpire is final and binding and not subject to review by the courts.
Assuming, for the purposes of argument, that the appellant is correct in his contentions that the appellees should indemnify him for payment of 1937, taxes on the lands devised to the appellant, still his recovery must be limited to amounts paid out for taxes other than drainage taxes. Drainage taxes do not constitute a personal obligation on the land owner and therefore do not come within the rule of law which the appellant seeks to apply to the present case.
Nickey v. State, 167 Miss. 650, 145 So. 630.
By the same token, separate school district taxes do not and cannot constitute a personal debt against the testatrix or against the estate of the testatrix and therefore the appellant cannot claim indemnity or contribution therefor from...
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