Newsom v. Thornton

• Decision Date: 18 July 1883
• Citation: 82 Ala. 402,8 So. 261
• Parties: NEWSOM v. THORNTON. [1]
• Court: Alabama Supreme Court

8 So. 261

82 Ala. 402

NEWSOM v. THORNTON. ^[1]

Supreme Court of Alabama

July 18, 1883

Appeal from chancery court, Colbert county; THOMAS COBBS Chancellor.

Whitmell Rutland died in 1856, leaving a will dated January 2, 1855. After making a devise and bequest of land and personal property to his daughter Penelope M. Newsom, the will gave certain slaves to several grandchildren, pecuniary legacies to two others, and one of $2,000 to Elizabeth W. Johnson "to be paid unto her as soon as possible out of my estate." Then follow six specific legacies of slaves to different grandchildren; a pecuniary legacy of $2,000 to Mrs Johnson, his daughter, the complanant's intestate "to be paid unto her as soon as possible out of my estate;" pecuniary legacies to two grandchildren; specific legacies to two others; and then the following clause: "I give and bequeath unto my grandson, Whitmell Rutland Newsom, upon conditions hereinafter expressed, the two quarter sections of land I bought of C. D. Barton and wife, *** and the east half of my lands according to quantity, to be divided between him and his mother by a line running north and south, parallel with the section lines, so that all the buildings may be on the part allotted to my said grandson; reserving, however, the life-time of his mother, should she never marry, the said Penelope M. Newsom, in and to the dwelling-house and outhouses, for the benefit of her family so long as she may live. I also give and bequeath unto my said grandson, Whitmell Rutland Newsom, the following described lands, *** Also, I give to my grandson, Whitmell Rutland Newsom, upon the same conditions, all the remainder of my estate not already given away, including negroes, stock of every kind, crop of every description that may be growing or housed, provisions of every kind, including notes, money, accounts and claims which I may have at my death, including also the increase either by death or purchase, after the payment of all my debts and specified legacies. My will and desire is, that all the property given conditionally to my grandson, Whitmell Rutland Newsom, shall be kept together and worked on the lands; and that my brother, Turner Rutland, now living with me, may be and remain on the farm, and be supported by his nephew, Whitmell R. Newsom, so long as the said Turner may live. Now, my will and desire is, that should my grandson, Whitmell Rutland Newsom, die leaving no legitimate issue living at his death, then, and in that case, all the property of every kind and description, herein devised conditionally to him, shall go to and belong to my grandson, John Newsom; and in case my grandson, John Newsom, should die and leave no legitimate issue living, shall go to and belong to my granddaughter, Frances Penelope Newsom, and her heirs forever. Lastly, I nominate my grandson, Whitmell Rutland Newsom, sole executor to this my last will," etc. The complainant is the administrator of Elizabeth W. Johnson, and filed this bill, July 18, 1883, against Whitmell R. Newsom, and others, to whom he had conveyed parts of the land specifically devised to him, praying that the legacy of $2,000 be declared a charge on the lands. On final hearing, the relief asked was granted, and the defendants appealed.

R. C. Brickell and Humes & Sheffey, for appellants.

CLOPTON J.

The title of the appellee, who brought the bill, to the relief granted by the chancellor depends upon the determination of the question whether the pecuniary legacy, given to his intestate by the will of Whitmell Rutland, is a charge on the lands devised to Whitmell Rutland Newsom, who was also the nominated and qualified executor. If this question is held adversely to complainant, it will be unnecessary to consider any minor or incidental question presented by the record. The will was drawn by an unskilled draughtsman, inartificially, and without regard to proper punctuation, capitalization, or a proper separation of the several clauses. After making a devise and bequest of land and personal property to one of the daughters of the testator, bequests of personal property to several of his grandchildren, pecuniary legacies to another daughter and two grandchildren, a devise of lands, upon conditions thereinafter expressed, to Whitmell Rutland Newsom, followed by a residuary clause giving to him the residue of the estate, the will contains a qualification or limitation expressed in the following terms: "After the payment of all my debts and specified legacies." One of the specified legacies is the legacy to Elizabeth W. Johnson, who is complainant's intestate, of $2,000, to be paid to her as soon as possible out of the estate; and the purpose of the bill is to enforce a charge on the lands devised to Whitmell Rutland Newsom for the payment of the legacy.

Ordinarily the personal assets constitute the primary, and prima facie the exclusive, fund, from which pecuniary legacies are to be paid. They are not charges on the real estate, unless the testator so directs, either expressly or by implication. There are no explicit words in the will creating such charge; and, when it is sought by implication, the expressions and dispositions of the will, its whole tenor, should satisfy the court of construction of the intention of the testator that, though the personal assets may be insufficient, the pecuniary legacies shall be paid at all events. In the present case, no question arises as to the consideration of extraneous circumstances, none being alleged or proved. The intention of the testator must be inferred from the provisions of the will, and the circumstances apparent on its face. Taylor v. Harwell, 65 Ala. 1. In this state, a devise of land "after the payment of debts" does not create a charge by implication. The doctrine is considered as opposed to the spirit and policy of our statutes, which charge the whole property of the decedent, real and personal, not exempted, with the payment of his debts, and provide for its sale for this purpose. Starke v. Wilson, Id. 576; Lewis v. Ford, 67 Ala. 143. The rule in respect to debts, on the ground upon which it is rested, is inapplicable in the case of legacies. Where debts and legacies are charged together, they are not, under our decisions, considered as placed on an equal footing. As to the latter,...