65 Ala. 214 | Ala. | 1880
— The power conferred on Thomas M. Hill, by the will of William W. Hill, is thus expressed; “ Should the said Thomas M. Hill die, having made a will and testament, in due form to be admitted to probate, I direct that the said trust estate shall be handed o'ver and disposed of, in such manner as the said Thomas shall by his said will have directed.” The power conferred by the will of Nancy A. Hill is thus expressed : “And it is further herein provided, that my said son, Thomas M. Hill, shall have the authority and the power, by an instrument in writing, to order and direct in what manner, and to whom, and in what proportion, the share or portion hereby bequeathed in trust to my said son, Luther L., shall be divided between his wife and children after his death.” Thomas M. Hill died, having made his last will, which was duly admitted to probate, and by which he disposed of all the property, real and personal, subjects of these powers, embracing the lands now in controversy, devising it to his wife, Mary B. Hill, and their infant daughter, Annie Bowen Hill, to be divided equally between them, and directing that it should be kept together until the marriage of the one or the other. The will contains this provision : “ My daughter, Annie Bowen, as soon as she is old enough, shall be sent to school, and kept at the best schools, until her education is thorough and complete in every department, without being an extra charge on my estate. This I bestow on her, as a parent and affectionate father, over and above her share at the final division and distribution of my estate ” *
1. The powers conferred by each of the wills on Thomas M. Hill were well executed by this devise. There is no general or particular intention, in favor of any class of
2. The words of the devise to his wife and daughter, in the will of Thomas M., importing a division of the estate between them, a separate interest in each, would, at common law, have created a tenancy in common. In this State, joint tenancy does not exist, the statute abolishing its distinguishing incident, the./ws acorescendi. — Code of 1876, § 2191; Dunn v. Bank of Mobile, 2 Ala. 152. And the principle is well settled, that when, as in this case, there is a devise and bequest directly to several; and the period of division or distribution is postponed, the devisees and legatees take and hold as tenants in common, until the period of distribution and division.— Chighozola v. Le Baron, 21 Ala. 406.
3. The statute declares, that an execution may be levied on real property, to which the defendant has a perfect equity, having paid the purchase-money, or in which he has a vested legal interest, in possession, reversion, or remainder, whether he has the entire estate, or is entitled to it in common with others. — Code of 1876, § 3209. The contention of the appellant, that by the sale under execution against her, of her estate in the lands, at which the appellee became the purchaser, he acquired n® title, and that the sale was void, because her estate was not subject to execution, cannot
4. It is unnecessary to consider the effect of the decree rendered by Chancellor John, in 1864, in the suit by the trustee, Little, to which Mrs. Hill and her daughter, were parties. Whether it charged upon the estate of Mrs. Hill a lien for the one half of the expenses of the education of the daughter, and its validity, seem to have been perplexing questions in the Court o± Chancery. Whether the decree is valid, and declares a lien, is not material. The origin and source of Mrs. Hill’s estate is the will of her husband, of which all purchasers from her, and all who succeeded to her estate by purchase at judicial sales, were bound to take notice. By that will, a charge on the whole estate, for the education of the daughter, was created; and to it the estate of Mrs. Hill remained liable, notwithstanding the appellee succeeded to it by the purchase at sheriff’s sale. The enforcement of this charge is one of the' features which imparts equity to the bill, as its enforcement lies exclusively within the jurisdiction of a court of equity. The chancellor was of the opinion, that the charge would be satisfied, by dividing the rents between the daughter and the appellee, requiring the appellee to contribute one half of the share received by him to the education of the daughter. This is ah error pervading the whole proceedings in the Court of Chancery. The charge of the education of the daughter, as directed in the will, rests upon the whole estate, in priority to the right of the mother to participate in the rents and profits; and it must be satisfied, before the appellee can claim any part of them ; otherwise, the expressed intentions of the testator would be defeated, There should have been directed a reference to the register, to ascertain a just and reasonable allowance for the education of the daughter, to which the rents should be applied, first making a deduction of all taxes paid, and the costs of all necessary repairs. It is, however, an allowance for education only, which can be made ; the expenses of tuition, board, if that was proper as an incident, and other usual and necessary incidental expenses. When this allowance is made, if there be any
5. We find no evidence in the record, which would justify a charge against the appellee for any rents other than such as he is shown to have received. Nor do we dwell upon that feature of the bill, impeaching bim for waste. There does uot seem to have been any such negligence in the failure of the appellee to derive rent from the premises, as would authorize a charge against him, if he were an express trustee, and, of consequence, there was no ground upon which to fix a liability upon bim as a mere constructive trustee.
6. A vendee of a tenant in common is entitled to a partition. Stewart’s Appeal, 56 Penn. St. 241. But the right to partition, in this case, depends upon the inquiry, whether it can be bad without violating the will of tbe testator. It was competent for him to fix the time at which there should be a severance of the interests of the mother and daughter; and having appointed it, the courts cannot appoint another and different time. The will limits the division of the estate to the marriage of the daughter, or of the mother, and requires, until the happening of that event, the estate, to employ its own words, shall be kept together. That event not having happened, and mother and daughter being in life, the cross-bill for partition was premature, and should bave been dismissed.
The result is, the decree of the chancellor on the original bill must be reversed, and tbe cause remanded for further proceedings in conformity to tbis opinion. The decree on the cross-bill bill must be reversed, and a decree here rendered dismissing it at the costs of the appellee.
