84 Miss. 715 | Miss. | 1904
delivered the opinion of the 'court.
In July, 1893, L. N. Baldwin died, leaving a last will and testament, dated July 8, 1890, naming his friend, J. IL. Gordon, and his wife, Mary J. Baldwin, executor and executrix of his estate. That will is as follows:
“In the name of God — Amen: I, Lemuel N. Baldwin, of the town of Port Gibson, and state of Mississippi, of sound mind and disposing memory, do make, ordain, and publish this as my last will and, hereby annulling and revoking all wills heretofore made by me.
“2nd. In addition to my previous gift of one hundred dollars to my old and faithful servant, Sukey Russell, I give her one hundred dollars to be expended in repairs on her house in Port Gibson, and the sum of ten dollars per month, payable on the first of each and every month, for and during her natural life.
“3rd. In case George Russell, Jr., shall, at the date of my death, be indebted to J. II. Danjean for and on account of his contract of $225.00 for building him a house on the lot conveyed to him by his mother and myself and wife in Port Gibson, I appropriate out of my estate a sum not exceeding two hundred dollars to pay said debt if so much is unpaid, but no more than the balance due said Danjean.
“4th. My gold watch and chain and buttons I give to my nephew, John Field MoDougall, and my gold-headed cane I give to my nephew, Aaron D. Baldwin.'
“5th. I give and bequeath to my beloved wife, Mary Jane Baldwin, all my personal property, including paintings in my residence and upon my premises, and carriage house property, for and during her natural life, Avith power to sell and dispose of the same as she may see fit; but in such event the proceeds are to be placed in the corpus of my estate subject to the provisions hereinafter specified.
“6th. I hereby expressly direct my executors hereinafter appointed, to sell as soon as can be done without too great loss, my two marble-front houses and premises in the city of Chicago and state of Illinois, originally numbered Nos. 121 and 123 on Calumet avenue, and for that purpose my executors are hereby authorized to lease or sell, in their discretion, at public or private sale, said premises separately or otherwise, and execute titles thereto to the purchasers as fully as I could do if alive. And
“7th. I do hereby give to my executors, hereinafter named, full power to carry on and cultivate my plantations or to lease the same, in their discretion, and to sell here or to ship any and all crops to New Orleans for sale, as I have heretofore done. And they are fully authorized to sell at private or public sale or sales, in their discretion, any and all personal and real estate of mine in this state which may be deemed necessary or expedient to pay my debts, and execute the proper titles to the purchasers.
“But I do hereby request that in such case my five places on the Bayou Pierre, in this county, and my place on Tchula Lake, in Llolmes county, be held to the last, and other lands first sold, and all reported to the chancery court.
“8th. I desire that my said wife claim no ‘allowance’ and charge no commissions for services against my estate, but that she be allowed a reasonable amount for the support of herself, family, and household, to be charged in her account against my estate, to be decided by her own judgment.
“9th. Subject to the foregoing articles, I give to my said executors the entire control of my estate, and to my said wife, Mary Jane Baldwin, the entire use and incomes, rents and profits thereof, for and during her natural life, with power to dispose of one-fourth of my estate remaining at the time of her death, by last will and testament, in default of which the said one-fourth shall remain as a part of my estate and lapse.
“10th. Subject to the life estate of my said wife, and on her death I give, devise, and bequeath to my nephew, Aaron D. Baldwin, my niece, Fannie Baldwin Haines, my grand-niece, Fannie Baldwin Duriand, the one-half of my estate in equal
“11th. I have purposely left my wife independent of her and my relations, knowing that she will do right and will aid them as her judgment decides and their consideration for her may justify. I want no interference in behalf -of her or my own relatives. My bequests and devises to her are in full of all claims on my estate.
“12th. I do hereby constitute and appoint my wife, Mary Jane Baldwin, and my friend, John H. Gordon, to be- executors of this my last will and testament, and I do expressly relieve them from giving security for acting as executors.
“13th. In case of the death or nonqualification of John H. Gordon as executor of this will, I do hereby nominate and appoint my friend, John A. Shreve, as executor, with same duties and powers and conditions conferred on said Gordon, and in that event I request him to qualify at once as executor in the chancery court.
“Thus done and this page and the three preceding pages written wholly by me and in my own handwriting, this the 8th day of July, A.D. 1890. L. N. Baldwin.
“Witnesses: James W. Person, Charles D. Wharton, Thos. M. Pea.
“Filed August 16th, 1893. A. K. Jones, Glerh.
“Becorded in Will Book No. 3, pp. 142-144.”
Six accounts were filed, the executors having in the meanwhile taken charge of the decedent’s property, cultivated the farms, managed it all as directed in the will, collected debts owing to the estate, and having paid debts due from the testator; selling for this purpose both real and personal property, some
We are clearly of'the opinion, without protracting these observations, that Mr. Baldwin’s will created an express trust for the payment of his debts, and consequently that, under § 1838, Code 1892, as well as the general principles applicable to such trusts, the statute of limitations invoked against these unprobated claims is no bar, and the executors were fully justified in the payment of the same. We have made no extended reference to authorities, since they have been very ably collected in the briefs on both sides. The principles announced in the cases of Perkins v. First Nat. Bank of Yazoo 81 Miss., 358; s. c. 33 South., 18, and Abbay v. Hill, 64 Miss., 340 (1 South., 484), cover the case perfectly. See also King v. Bishop, 62 Miss., 555, and Story’s Equity Jurisprudence, sec. 980.
The decree is reversed, and the cause remanded to be proceeded with in acordance with this opinion.
Reversed.