M'Campbell v. M'Campbell

• Court: Kentucky Court of Appeals
• Writing for the Court: Mills
• Citation: M'Campbell v. M'Campbell, 15 Ky. 92 (Ky. Ct. App. 1824)
• Decision Date: 15 April 1824
• Parties: M'CAMPBELL <I>v.</I> M'CAMPBELL.

15 Ky. 92

M'CAMPBELL

v. M'CAMPBELL.

Court of Appeals of Kentucky.

April 15, 1824.

From the Shelby Circuit Court, the Hon. Henry Davidge sole Judge.

J. Logan, for plaintiff; Talbot and Sharp, for defendant.

OPINION OF THE COURT, BY JUDGE MILLS.—APRIL 15.

MUCH of the history of this case, may be learned from the decision on a judgment at law, between the same parties, at the fall term of this court, 1819, to which reference is made. See 2 Marsh., 112.

After that decision, George W. M'Campbell, against whom that judgment was rendered, filed this bill in equity, still asserting and claiming the election of his brother, Andrew, to take an education in lieu of the land, and the subsequent agreement to accept four hundred dollars and learn the farmer's trade, and finally the compromise between himself and said Andrew, after his arrival at age, to accept one-half the land, free from incumbrances, in lieu of the four hundred dollars, or in lieu of the whole of the land, incumbered by the debts of their testator. He alledges that it was expressed by the testator, at the time he dictated his will, as his intention to charge the debts on the home-plantation, which is now the subject of controversy, and that the writer had omitted to insert the clause; but he contended that such was the construction of the will, as it now stands, and that all the family had so understood it; and that in consequence of this expectation and belief, he had discharged out of his own funds, the debts of the testator to a large amount, or had furnished the executors with money to do it, and had also paid off the legacies given by the will to the daughters; and that in all this, the defendant in chancery, Andrew M'Campbell, had acquiesced, and in pursuance thereof, had received half the land laid off and conveyed to him, as detailed in the trial at law. He further charges, that the said Andrew, by the consent and permission of his mother, had, in her lifetime, enjoyed and used for many years, twelve acres of the home-farm, for the rents of which, he ought to account. He, therefore, prays that the said Andrew M'Campbell may be compelled to convey the land to him, or if this cannot be granted him, that the said Andrew shall be compelled to pay the debts and legacies charged on the farm, if they were so charged, and if not, that he, the said Andrew, and the rest of the children, may be compelled to pay their rateable proportion of these debts and legacies; that Andrew may be compelled to pay for valuable improvements, and account for the rents of the twelve acres which he had enjoyed in the lifetime of his mother.

The rest of the children answered, admitting the allegations of the bill, and that they were accountable for their proportions of the debts and legacies, unless they were charged by the will on the mansion tract. Andrew answered, and relies on his judgment at law as conclusive against the legal title being in the complainant, and as putting asleep the question of the farm having been vested in the complainant, by virtue of his supposed election to accept an education. As to the last agreement, after he was of age, in which he received from the complainant a conveyance for half the land, it having been first conveyed to the complainant by the executors, he pleads and relies on the statute to prevent frauds and perjuries. He denies the existence of debts against the estate, or payment of them, and contends that his testator died possessed of considerable personal estate, and that it ought to be accounted for before the land is reached in the hands of the devisees.

The court below dissolved the injunction as to the land, and refused a conveyance thereof, and after directing an account to be taken, decreed that each child should refund, rateably, to the complainant, the debts and legacies which he had paid; that Andrew should pay for legacies charged upon the farm, and for improvements made since the deed made to the complainant by the executors, after deducting rents; and, also, that rents should be charged against Andrew on the twelve acres, which he enjoyed in the lifetime of his mother. From this decree, Andrew M'Campbell has appealed.

The decree of the court below, so far as it decides against the appellee's right to the land, cannot be questioned by the appellant, as it is so far in his favor; nor can it come before the court on this appeal, unless on a reversal of the decree, this court shall be led back to correct all the apparent errors. We shall, however, observe that the question as to the legal estate, was tried in the action at law, and whether there was such an election of an education on the part of Andrew, as divested him of his title under the provisions of the will, is a question set at rest by that trial, so far as respects this suit. Whether the ratification of Andrew, after he came of age, of former agreements, and his acceptance of half the land, did, or did not vest an equitable estate in his brother George, is a question properly triable in equity, and could not be tried in the action at law. In response to this, the appellant has relied on the act of assembly to prevent frauds and perjuries. When this arrangement was made, it was supposed between the parties that the executors alone could convey the title. A surveyor was procured by the appellant, and he divided the land. The executors, who were two of the heirs made defendants to this bill, conveyed to George the whole land, and George conveyed the half thereof to Andrew, and he then executed a receipt to George in full of all demands against the estate. The executors had no authority to convey, and of course their conveyance to George passed no title, and although there was an agreement on the part of Andrew to accept the deed to the half in full of his interest in the estate, yet as he gave no writing conveying his interest in the land or binding himself to do so, his plea of the act must prevail, and the chancellor did right in refusing to decree a conveyance.

But as Andrew, by this agreement, admitted his brother's title to the half of the land now in contest, and the parties then supposed that the title to the half now recovered from George, was vested in him, and under the faith of this agreement and understanding, he proceeded to improve the land, according to repeated decisions of this court, the court below did right in compelling Andrew, who now dissents from this arrangement, to pay for all lasting and valuable improvements or ameliorations of the half of the land now in contest, lessened by the reasonable rents of the premises in dispute.

Nor is there any ground for supposing that the debts of the testator are charged on the mansion farm by the will. The only provision with regard to debts, is to this effect:

"I give and bequeath unto my dearly beloved wife, Martha M'Campbell, the full, free and uninterrupted possession of mansion house, plantation and stock, and profits thereto belonging, during her natural life, for her own use and benefit, and support of the children under her charge. Next, all lawful, just debts discharged." He then devises to James M'Campbell, one of his sons, two hundred and fifty acres of land, another tract; to his son John, a third tract, under the condition that he paid his son, George, now appellee, £100, after George came of age; to William, another son, he devised a fourth tract, on condition of his paying to another son, Samuel M'Campbell, £100. Then he inserts these clauses: "To my son, Andrew M'Campbell, I give and bequeath the plantation, my present place of residence, containing two hundred acres, after the death of his mother. To my daughter, Margaret, I give and bequeath the young sorrel mare and saddle, and whenever she shall marry and remove her residence, she is to have one feather bed with its furniture, two cows, and as soon as her brother can furnish her from the home-place, she is also to have a desk or bureau, whichever she may choose. To Martha M'Campbell, my daughter, I give and bequeath a good mare and saddle, and whenever she shall marry and remove, she is to have one feather bed with its furniture, two cows, and as soon as her brothers can furnish her from the home-place, is to have a desk or bureau, whichever she may choose. And to Jane Logan I give and bequeath £50 to be paid £25 from the home plantation, and £25 by John M'Campbell, which payments are to be made as soon as is convenient. To my daughter, Nancy Elliott, I give and bequeath a cow, formerly lent them, and a yearling heifer. And to Molly Lawson, I give and bequeath £5."

Some months after, he added this codicil:

"As a codicil or small alteration to the former will, I, Samuel M'Campbell, as aforesaid, do leave it as my last will and desire, that my son, George Washington M'Campbell, after my decease, is to have the care and management of the plantation on which I now reside, for the care and maintenance of his mother, and those of the children whose home and residence it may be, as long as he may see cause to act in that business, or until my son, Andrew M'Campbell, shall arrive at the age of twenty-one; and provided my son Andrew may choose to go to education, instead of the plantation, that may be done, and the plantation here alluded to, then to be George W. M'Campbell's, by his paying the expense of his education, and that to be done before he may come of age."

Notwithstanding the clause in this will relative to debts, is expressed defectively, as if something was intended, not expressed; yet as it is capable of construction as it stands, and the debts thereby are left to be discharged out of the general fund not specifically bequeathed, we cannot add thereto or alter it; but must disregard the proof introduced, conducing to show that it was intended to charge the debts solely on the mansion-farm, so far as it is contended that such proof can alter the will.

Nor do we conceive the court below erred in directing the debts...