64 Ala. 188 | Ala. | 1879
The will of David M. Dickson contains unusual, and somewhat contradictory provisions. The 2d item directs the payment of testator’s debts, and makes this, what the law expects, an executorial duty. The 3d clause evidently gives an estate to the widow, to continue during her life or widowhood, but charges upon it the support, maintenance, and education of the testator’s minor children. Its language is : “ It is my will that my beloved wife, Mary
Again : In the 7-th item, testator declares his purpose to be, to allow his wife, “ as one of my [his] legal representatives, during her widowhood, to exercise a reasonable discretion and power in the management of my [his] estate, with reference to the sale of real or other property, and making investments of surplus money, &c., by and with- the advice and consent of the court.” In this item, large power and discretion are conferred on Mrs. Dickson, as one of the personal representatives ; but it is conferred on her alone, not on her and her co-executor. If she had failed to qualify, had resigned, or had otherwise lost or surrendered her authority as executrix, it will scarcely be contended her surviving or continuing co-executor, or an administrator with the will annexed, could have exercised either of these powers. They are personal trusts, confided to Mrs. Dickson; not executorial duties, entrusted to the executorial office. Camp v. Coleman, 36 Ala. 163; S. C. Ib. 159; Hitchcock v. U. S. Bank, 7 Ala. 386, 436 ; Perkins v. Lewis, 41 Ala. 649; Anderson v. McGowan, 42 Ala. 280.
We come, then, to the conclusion that, in this will, there are no trusts, the execution of which is charged on the executorial office ; and it follows, that no reason is shown why the Probate Court should not entertain jurisdiction, and make the final settlement of Mr. Dickson’s estate.— Coleman v. Camp, 36 Ala. 159; Johnson v. Longmire, 39 Ala. 143. The petitioner is entitled to the relief she prays for.
The writ of mandamus,. as prayed for, is ordered to be issued, unless the issue of such writ is rendered unnecessary, by a compliance, in the court below, with the principles of this opinion. Let the costs of this appeal be paid by the contesting parties in the court below.