92 Ala. 537 | Ala. | 1890
Mrs. Cynthia A. McDonald died in Jeffer
The bill in this case was filed by three of the sons and one of the daughters against their father and their other brothers and sister. It alleges that the personal property left by said testatrix was of small value, but that she left certain real estate in the City of Birmingham which at the time of her death was of large value, and was then bringing in a handsome rental income, of not less than -two- hundred and twenty-five dollars per month; that said rental income has been growing steadily larger, and for the last three years said W. J. McDonald as trustee under the will, has collected rents from said real estate amounting to not less than eighteen thousand dollars over and above all legitimate expenses of the property, and that he is now receiving as rents from said real^estate seven thousand five hundred and sixty dollars per annum, the rents'being payable monthly. The bill alleges that, since the
A principle question raised by the demurrers of W. J. McDonald, Sr., is, whether by the terms of the will he is vested with such power over the rents, income and profits of said property as, in the circumstances disclosed by the averments of the bill, to preclude the exercise by the court of any supervision or control over his disposition thereof. In dealing with the will of a decedent the court has two important functions-to perform; first, to ascertain the intention of the testator as disclosed by the instrument; second, to require that the lawful directions and dispositions so made by the decedent be carried into effect. In this case, the intentions of the testatrix as to the disposition of her property and the application of the rents, issues and profits arising therefrom are not difficult of ascertainment.' In plain terms, the property is vested in the husband during his life, to be held, managed and controlled by
The bill was filed eight years after the death of the testatrix. It is shown that the debts against the estate did not exceed five thousand dollars; that the trustee has received in rents several times more than the debts amounted to, and that the present annual income from the property in his hands is more than the aggregate of the debts. Where the assets are so largely in excess of the indebtedness, it is not in the power of the creditors, by unnecessarily delaying the collection of their claims, or of the trustee, by a failure to meet obligations which he is amply able to discharge, to indefinitely postpone the assertion by the beneficiaries of their interest of the property. In the circumstances disclosed by the bill it was not incumbent on complainants to show that the debts have been paid.
The foregoing considerations dispose of the several grounds of demurrer. The city court did not err in overruling them.'
Affirmed.