98 So. 775 | Miss. | 1924
delivered the opinion of the court.
The question involved in this case is the construction of three provisions of a will executed by James M. Montroy, Sr., deceased. The decisive inquiry is whether or
The suit is by bill filed by appellee Phillips, trustee in bankruptcy, to have certain provisions of the will construed so as to determine whether or not the life estate of Jas. Montroy, Jr., vested in the trustee in bankruptcy for the benefit of the creditors of James Montroy, Jr., or whether the life estate was such as could not under the will be subjected to the debts of the bankrupt; and from a decree declaring the life estate subject to the debts of the said Jas. Montroy, Jr., life tenant, and that it vested in the trustee in bankruptcy for the benefit of the creditors of Jas. Montroy, Jr., this appeal is prosecuted.
The bill alleged that Jas. Montroy, Jr., bankrupt, was the owner of an unconditional life estate in certain lands described in Coahoma county, title to which he had derived through and by virtue of the last will and testament of his father, Jas. Mon troy, Sr.
The items of the will involved in this case are numbered 5, 8, and 13, which we shall here set out in their numerical order, to-wit: ,
Item '5. “All of my other property, real, personal and mixed of which I may die seized and possessed, other than the property hereinbefore bequeathed and disposed of by item previous to this item, I hereby give, devise and bequeath to my beloved wife, Mary E. Montroy, who was to me a devoted and loving wife, to have and to hold the same to her for and during her natural life, and during the term of her life I hereby direct that James Edward Montroy, I. J. Morris and J. C. Slater as joint trustees shall control and manage all of my said property so devised to my ;said wife during her natural life, and they shall pay over to my said wife any part of the income of said property which she may request to be paid over to her for her support, maintenance, comfort and support. It is my will that the said James Edward Montroy shall
Item 8. “I give and devise to my son James Montroy, Jr., the reversion and remainder of the following land owned by me in Coahoma county, Mississippi, to-wit: The north half of the northwest quarter (N. -J of N. W. %)> and the southeast quarter of the northwest quarter (S. E. % of N. W. %) of section twenty (20), township twenty-nine (29) range three (3) west, and all profits income and advantages that may result therefrom, from and after the decease of my wife, Mary E. Montroy, to have and to hold the same unto the said James M. Montroy, Jr., for and during the term of his life, and at his death I hereby give and devise the remainder of reversion in said lands unto the heirs of his body, if any there be, and in default of issue of his body, then I give and devise the reversion or remainder of said land to my right heirs in fee simple. ’ ’ Item 13. “It is my will, and I so direct that neither my said wife nor any of my said children named in this, my last will, shall sell or incumber with a lien of any kind any of the property herein given, devised or bequeathed unless such sale be made to, or such incumbrance be in favor of one or more of the devisees named in this will. ’ ’
It is contended by the appellee Montroy that the provision of item 13 of the will is a valid restriction against selling or incumbering the property with any kind of a lien unless such sale or incumbrance be made to one of the other devisees named in the will, and that the life estate devised could not be incumbered or sold or made liable in any manner for the debts of the life tenant. On the other hand, the appellee urges that the restraint against alienation of the life estate as provided in item 13 is void under the common law, for the reason that a com
The appellant relies upon two cases to sustain his view, namely, Leigh v. Harrison, 69 Miss. 923, 11 So. 604, 18 L. R. A. 49, and Crawford v. Solomon, 131 Miss. 792, 95 So. 686. But we will not discuss these cases with the view of pointing out the difference'between them and the case at bar, except to say that in the 'latter case the court was dealing with the question of whether or not the devisees could voluntarily alienate the estates devised to them, while here the question is whether the life estate devised may be subjected to the payment of the debts of the devisee. We may also say, in passing, that the two decisions referred to seem to deal with, or are at least affected with the nature of, trust estates or “spendthrift trusts,” whereas in the case before us the legal title is completely devised to the life tenant. As we have said, however, it is unnecessary to review here the two decisions in the cases referred to, since our decision of the present case will be determined upon the question of whether the life estate is subject to the debts of the life tenant.
We are convinced the holding of the lower court was correct. The life estate here was subject to the debts of the life tenant, for the plain reason that the testator placed no restriction upon the devise as to liability for the debts of the devisee. The language used by the testator in item 13 only restrains the life'tenant from selling or incumbering the property with a lien of any hind except to one of the other devisees in the will. If the testator had intended the property devised should not be subject to the payment of the debts of the devisee he could have, and should have, used the necessary language to express such intent; but all that he said and meant, in our judgment, was that the devisee could not voluntarily sell or incumber the property except to one of the other devisees. The liability and right to go against the property
It is a well-settled rule that, where a complete estate is devised, no restrictions will be imposed against its alienation or incumbrance, or liability for debts by operation of law, unless the language of the testator clearly expresses such intent. It must conclusively appear that the testator intended to restrict alienation or restrain the full and complete enjoyment of the property.
It will be observed that we have omitted deciding the question of whether the restriction against alienation as contained in section 13 of the will is valid; nor have we decided whether or not a restriction against liability for the debts of the life tenant would be valid if item 13 of the will had contained such restraint; it being obviously unnecessary to pass upon these questions because item 13 contains no restriction against liability for debts arising by operation of law.
The judgment of the lower court overruling the demurrer and contruing the will is affirmed.
Affirmed.
