Torian v. Sanders
| Decision Date | 01 February 1937 |
| Docket Number | 32552 |
| Citation | 172 So. 142,178 Miss. 18 |
| Court | Mississippi Supreme Court |
| Parties | TORIAN v. SANDERS |
1 WILLS.
Rule that personal bequests lapse in absence of personalty to satisfy them, must yield to intention of testator when that intention is sufficiently disclosed.
2 WILLS.
Devise of plantation to use of devisee for four years at an annual rental to be paid to designated beneficiaries held, to pass an interest in the land itself, and not to be subject to general rule of entire abatement because of insufficiency of personalty to pay debts in view of testatrix's manifest intention not to require abatement, in that acceptance of devise by the devisee bound him to make the payments therein stipulated, whether he made the same out of the use of the plantation or not.
3 WILLS.
Where use of real property is given by will, presumption is that the net income or profit is meant and that the beneficiary must pay out of the gross receipts all expenses of a reasonable upkeep, taxes, and like charges against the devised property.
4. WILLS.
Under devise of use of plantation for four years specified rental to be paid to designated beneficiaries whereby devisee was bound to make rental payments, whether he made the same out of the use or not, devisee held required to pay out of gross receipts all expenses of reasonable upkeep, taxes, and like charges, but not the interest on previous or mortgage debts of the devised property, and required to contribute only proportionately to the cost of administration and other debts.
5. WILLS.
Where testatrix devised first plantation, subject to four-year use, to adopted daughter, and second plantation to others, no part of first plantation could be encumbered or sold to pay mortgage encumbrance on second plantation.
6. WILLS.
Where testatrix devised first plantation, subject to four-year use, to adopted daughter, and second plantation to others, proceeds of sale of realty in another state and all available net rents collected during execution of will, but not including first four years on first plantation, should be applied half and half to mortgage indebtedness of both plantations.
7. APPEAL AND ERROR.
Supreme Court would express no opinions on questions expressly and definitely reserved by chancellor.
HON. N. R. SLEDGE, Chancellor.
APPEAL from chancery court of DeSoto county HON. N. R, SLEDGE, Chancellor.
Suit between H. D. Torian, guardian, and J. W. Sanders, executor, for construction of the will of Mrs. C. T. Knight, deceased. From a decree of the chancellor, the former appeals. Affirmed in part, and reversed in part and remanded.
Affirmed in part, and reversed in part and remanded.
Holmes & Bowdre, of Hernando, for appellant.
Item II of Codicil V is not a devise of land, nor in the nature of a devise of land, At most, it is a gift of the use of land for a period of four years for an annual rental of $ 2500 per year, admittedly for a very much less than a fair rental value. No title to the land passes. It is not a charge on the land. It is more in the nature of a demonstrative special legacy. The land could not be sold to satisfy this legacy. It is really an offer or option to J. W. Sanders for him to lease the Glover Plantation for four years at an annual rental of $ 2500 per month. It is optional with him. He can take it for one year or more, and then abandon it. It is not a devise. At most it is a leasehold, which is personal property, and if J. W. Sanders should die today it would be a personal asset which would go to his administrator. If it is personal property as to J. W. Sanders, it is also personal property as to Mrs. C. T. Knight's Estate, and is a legacy by virtue of her will which carves the four year lease out of her estate in this land. It is personalty.
We are referring to the gift to J. W. Sanders, that is the differential between $ 2500 annual rental and a fair rental value (which, according to our contention, is about $ 8000) which is approximately $ 5500 per year. The legal status of the gift is practically the same as if the testatrix had bequeathed to J. W. Sanders a legacy of $ 5500 per year for four years, to be paid out of the annual rents of the Glover Plantation in excess of $ 2500. It differs, however, from an annuity, in that it's an uncertain amount.
The whole difficulty which confronts the court in this matter arises out of the insufficiency of the personal estate to pay debts and expenses of administration. We understand the general rule to be as follows: first: the residuum abates; second: the general legacies abate; third: special legacies abate ratably as to each other. All of these abate, if necessary, to their complete extinguishment before there is an abatement of the specific devises.
Gordon v. James, 86 Miss. 719.
Item XI of the will is a specific devise of the Glover Plantation and all personal property located thereon to Kate Nash Torian. The legacy of said personal property has already abated. The devise of said land should not be required to abate in whole or in part until all other available assets have been appropriated to the payment of debts and expenses.
It was the dominant purpose of said testatrix that Kate Nash Torian should receive the Olover Plantation devised to her under Item XI of said will free from debt, and that the devisees, Mrs. Helen Knight Howard, Mrs. Willie Woodson Gaither and Margaret Sangster Roach, should receive the Long Pond Plantation free from debt, including the mortgage debt against said plantation. There is nothing in the will or any of its codicils that negatives this intention. This dominant purpose should prevail and. should be given effect even if to do so it becomes necessary for the bequest to Joe Sanders, in Item II of Codicil V, to abate. This is not defeating the intention of the testatrix. Her intention fails because of the insufficiency of the amount of the estate.
It is therefore necessary and proper to consider the whole will with the codicils thereto attached, and that the will, together with all codicils, shall be construed together as one instrument.
In construing a will and codicils it is the duty of the court to ascertain the controlling intention of the testator and arriving at the testator's intention effect should be given as far as possible to all the provisions of the will and codicils read in as one document.
Joyner v. Joyner, 117 Miss. 507.
The income from all other DeSoto County land, other than Long Pond Plantation and Glover Plantation, is inconsiderable. But this income should be applied, so long as necessary, to the payment of the mortgage debts against Long Pond and Glover Plantations. And the. Chancellor should have, in his said decree, adjudged that the income from all of said DeSoto County farms, other than the Long Pond and the Glover Plantations, should be applied to the payment of said indebtedness and the expenses of the administration. And the Chancellor should have adjudged that all of the DeSoto County farms, other than the Glover Plantation and Long Pond Plantation, are primarily liable to abate to their extinguishment, before the devise of the Glover Plantation and the Long Pond Plantation should abate, to any extent whatsoever.
R. F. B. Logan and John W. Barbee, both of Hernando, for appellees, Mrs. Gaither and Mrs. Allen.
We respectfully insist that the use of the Glover Place for four years at and for the sum of $ 2500 per year under the will of Mrs. Knight is personal property and, of course, should abate as other bequests have already abated under a decree of the lower court.
7 Cyc. 125; 32 Cyc. 666, 668; 50 C. J. 763, sec. 37; Hancock County v. Imperial Stores Co., 93 Miss. 822, 47 So. 177, 17 L. R. A. (N. S.) 693, 136 Am. St. Rep. 861; Orrell v. Manufacturing Co., 83 Miss. 815, 70 L. R. A. 881; Jones v. Adams, 104 Miss. 397, 61 So. 420; 40 Cyc. 1899.
Abatement is the reduction of the legacy on account of the insufficiency of the estate of the testator to. pay all of his debts and legacies in full.
Where the assets prove insufficient to pay the debts of the testator and all of the legacies, general, specific and demonstrative, the loss falls primarily upon the general legacies, which must abate proportionately; unless the will shows an intention on the, part of the testator to prefer one general legatee over another; and this is true although the general legatee be the widow of the testator, where the reservations made for her by the will exceed her common law rights, at least so far as the excess is concerned.
40 Cyc. 1904; 69 C. J. 985, sec. 2185.
Counsel for the executor concede that the leasehold to Joe Sanders is personal property, but contend that it is a charge on the land and, therefore, should not abate. We respectfully insist that opposing counsel are in error because there is nothing in the will of Mrs. C. T. Knight that shows an intention on her part, either expressly or by implication, to charge the use of the Glover Place to Joe Sanders for four years on the Glover Place, and if she did not make it a charge on said Glover Place, then it cannot be a charge on said place.
If in her will she had said I give the Glover Place to Kiate Nash Torian for life with the understanding that she shall take it subject to the four year lease given Joe Sanders, or if she had used any other similar words showing an intention to charge this four year lease on said place, then in that event it would be a charge on said place but having failed to do this, we respectfully insist that no matter what the bequest to Joe Sanders of the use of the Glover Place for four years may be, or may be called, it must abate as other bequests...
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Thomson v. First Nat. Bank of Jackson, 38124
...of the court, or, as the decree says, 'subject to the proper orders of this Court in respect to all these matters.' Torian v. Sanders, 1936, 178 Miss. 18, 172 So. 142. Appellants argue that a present necessity was shown by the evidence as to the financial needs of the beneficiaries, and the......