Gordon v. James

• Citation: 86 Miss. 719,39 So. 18
• Court: United States State Supreme Court of Mississippi
• Decision Date: 24 July 1905
• Parties: WINFIELD S. GORDON ET AL. v. MARY E. JAMES ET AL

39 So. 18

86 Miss. 719

WINFIELD S. GORDON ET AL. v. MARY E. JAMES ET AL

Supreme Court of Mississippi

July 24, 1905

FROM the chancery court of Yazoo county, HON. ROBERT B. MAYES Chancellor.

Gordon and others, appellants, were complainants, and Mrs. James and others, appellees, were defendants in the court below, the bill being one filed by appellants as executors of the will of Daniel A. James, deceased, for a construction of said will and for instructions as to the apportionment of debts distribution of assets, etc. The opinion of the court discloses all the material facts of the case.

Decree modified and cause remanded.

Noel Pepper & Elmore, for appellants.

Are specific devises and specific legacies subject to proportional abatement and debts?

At common law, land, whether devised or inherited, was received free from all charges of every kind, except debts of the specialty kind. The rule has nowhere been changed, so far as we know of, except by statute. Evans v. Fisher, 40 Miss. 665, 666; Holman v. Bennett, 44 Miss. 322, 326.

Legacies are not chargeable on lands unless such an intent appears in the will. Knotts v. Bailey, 54 Miss. 235; Perkins v. Bank, 33 So. 18; Carroll v Botsak, 65 Miss. 350; Cady v. Cady, 67 Miss 425; Brill v. Wright, 8 Am. St. Rep., 717.

In the last case above mentioned the authorities are very fully reviewed on this point.

While there are two sides to this question, as to ratable abatement of specific devises and legacies, and the 19 Am. & Eng. Ency, Law announces (p. 1316) that the minority only gives specific devises superior standing, yet this is almost, if not entirely, a question of statutory construction, and our statute leaves really no question open as to making realty secondarily liable. Whatever modification of the common law rule exists in this state is made by Code 1892, § 1881.

It will be noted that the above section, even when taken in connection with sec. 2543, does nothing more than make rents part of the assets of a decedent's estate of the same class with all of the other personalty, regardless of whether the decedent died testate or intestate and of whether the particular personalty happened to be a specific or residuary legacy or unaffected by the will. The mere fact of such property being originally assets, or made so by the statute, does not in the least affect the rights of others than creditors to such property, nor the subordination of such rights. No suggestion of such purpose is contained in the statute, whose sole purpose, besides adding rents to the column of personalty, seems to be to make land a secondary resort for creditors and the expenses of administration. See Hull v. Hull, 3 Rich. Eq., 65, recognized in Farmer v. Spell, 11 Id., 549; McFadden v. Hefley, 13 Am. St. Rep., 678, 680; Gooch's Ex'r v. Gooch's Adm'r, 1 Am. St. Rep., 161.

This line of decisions embodies correct principles and follows true legal analogies, and is in full accord with our own decisions. Some courts and text writers have held that the claims of the specific legatee are as much in the mind of the testator as the claims of the heir of specific devisee, but this court, looking back. to the common law as our source of light, undimmed except by clear, contrary statutory regulations, has uniformly declared otherwise. Perkins v. First Nat. Bank of Yazoo city, 38 So. 18 (19 Am. & Eng. Ency. Law [2d ed.], 1354); McCampbell v. McCampbell, 15 Am. Dec., 59.

The doctrine that the commingling of realty and personalty in the residuary clause of a will as a fund for the payment of legacies or debts puts the whole fund on a common footing, is not in violation of the rule here maintained, but constitutes a testamentary alteration in the usual legal status, as does a legacy by a person who has nothing but realty from which it could be paid, the one appearing on the face of the will and the other in the application of the testamentary design to the subject-matter

To the ordinary rule of the parity of devises and legacies of the same class, whether general, specific, demonstrative, or residuary, there is an: important exception, based upon sound reason. Devises and legacies are ordinarily pure gifts, matters of gratuity, supported by no valuable consideration. When a valuable consideration enters into the transfer of property, even through a will, some of the distinguishing features of wills are altered. For instance, it is a general saying that the distinguishing feature of a will is its ambulatory character, being subject to revocation until the death of the testator; yet a devise based upon a valuable consideration may make a will irrevocable or an obligation to devise to be held superior, in right, to a devise or bequest. Schouler on Wills, 484; Anding v. Davis, 38 Miss. 594; Sharkey v. McDermott, 91 Mo. 647; Byrd v. Pope, 73 Mich. 483; Carmichael v. Carmichael, 72 Mich:, 76; Roper on Legacies, 431; Williams on Executors, 1365; 2 Redfield on Wills, 551; Brill v. Wright, 8 Am. St. Rep., in note p. 725; Schouler on Wills, 488; Knott v. Bailey, 54 Miss. 238.

The principles and authorities invoked, applied to the present case, establish the following propositions:

(a) That the three plantations, including Stonewall, cannot be resorted to at all for either debts or legacies of any kind until all of the personalty, constituted as assets by statute, are consumed.

(b) That the Stonewall plantation, being received by T. W. James upon the express condition that he would pay or assume the purchase money due thereon by testator, constituted him, as against all others, except creditors, a purchaser for value, and protected that plantation against any diminution or abatement for debts or legacies until all the other property was exhausted.

The court recognized this doctrine to the extent of requiring the unpaid purchase money to be deducted from the value of Stonewall before any abatement could be had. As between T. W. James, who had been subrogated to the rights of purchase-money lien holder, and other creditors of testator, this rule would be correct, but as between T. W. James and the other devisees or legatees, who paid nothing, and were the mere recipients of bounty, a different rule should apply. It is the quality, and not the quantity, of consideration which upholds obligations of all kind, as against volunteers. T. W. James, as devisee, was under no liability for the unpaid purchase money until he accepted the devise and assumed the debt. Then he became personally responsible, regardless of whether, under extraordinary circumstances, the land devised would or would not pay the debt against it, and the liability became unqualified and related back to the death of the testator. 18 Am. & Eng. Ency. Law (2d ed.), 746; 1 Am. & Eng. Ency. Law (2d ed.), 46; Blower v. Morett (N. C.), 2 Ves., 422.

Legacies based upon consideration are entitled to priority over those which are mere bounties, even though greatly in excess of the consideration. 1 Am. & Eng. Ency. Law (2d ed.), 48, 50.

Rents and growing crops go with the land, if not needed for payment of debts.

The authorities we have cited show that, at common law, growing crops and accruing rents go to the heir or devisee. Statutes in derogation of this common law principle are to be strictly construed, at least not extended further than clear intent. The only intentions manifested by the statutes in making growing crops and accruing rents assets are those which, for the purpose of settling the obligations of the estate, give the executor or administrator the same power of disposition as in other personalty. But for these statutes, rents and crops would have been beyond the reach of all creditors, except those by specialty. Our statutes, as to growing crops, leave it with the executor or administrator to determine whether they shall be taken charge of or left to go with the land, and allow rental of lands only for the purpose of paying debts. Secs. 1882 and 1883 of the code. Surely the law does not leave it to the executor or the administrator to control the ultimate disposition of growing crops or accruing rents further than to constitute them, when necessary, a part of the fund for payment of debts. If not needed for debts, the proceeds of growing crops and of accruing rents should go to the heir or devisee of the land from which they were diverted, subject to such abatement as might be incident to other personalty specifically devised, the specific devise of land carrying with it, except as against creditors or expenses of administration, the growing crops. Most of the crops on Stonewall were grown by share hands, the landowner's half maturing as the crops were gathered and cotton made ready for market. The seventy-eight bales of cotton gathered by T. W. James, after he took charge of Stonewall, was to the extent of one-half, the half going to the landowner, subject to abatement, like other specific legacies.

Especially is this true when the provision of item 2 of the will in controversy is considered, providing, as it does, that if the testator dies before the first day of January, 1901, the rents should go to executors, showing an intention--and the intent absolutely controls construction of wills--that if he died after January 1, 1901, the rents were not to go to the executors, but to the devisee. Changed as the will was, in many respects, by the numerous codicils, this provision was not altered. No such provision is made with reference to any of the other plantations nor as to the increment of any property.

According to the decree appealed from, the dividends on stock go to the specific legatees entitled to the stock, and the increment of the land goes with the residuary estate to the creditors. The increment of realty is taken from the...