Norris v. Callahan

59 Miss. 140 | Miss. | 1881

■ Campbell, J.,

delivered the opinion of the court.

The most important question in this case is, whether, under § 1956 of the Code of 1871, the land exempted by law from sale, under 'execution or attachment, and devised by the owner, was, by virtue of such devise, made liable to be sold by decree of the court in which the will was proved, on the application of the executor, to pay the debts of the testator after the exhaustion of the personalty, and other land ? It was settled by the adjudications of this court under statutes employing the same phraseology as the section of the Code mentioned above, that the exemptionist had the right to dispose by will of his property, exempted from execution by law, and that it descended, only in case of the intestacy of the owner. Turner v. Turner, 30 Miss. 428; Nash v. Young, 31 Miss. 134. Under § 1956 of the Code of 1871 the property exempted by law from sale did not descend where the owner of it disposed of it by will. That section was operative only in case of intestacy. But a farther question is, did the devise of it render it liable to be devoted to the payment'of the debts of the testator? It would descend, as provided by law, only in case of intestacy, but did the disposal of it by its owner make it liable for his debts, when it was not liable before? We think not. Section 2143 of the Code of 1871 declares that: “ The exempt property, real or personal, may be disposed of, as any other property may be, by the owner, and shall not, by such disposal, become liable to the debts of such owner.” We therefore hold that the fact that the homestead was devised did not subject it to sale for the payment of the debts of the testator. It is quite clear that the will did not charge the homestead with the debts of the testator. It is true it used language held sufficient by itself to charge land with debts. The language is : “ First, after all my lawful debts are paid and discharged, the residue of my estate, real and personal, I give,” &c. But in the will the testator appropriated a specific fund to pay his debts and thus clearly negatived a purpose to charge them on the other land. 3 Jarman on Wills (5th Am. ed.), 411.

We have expressed our view of the foregoing questions because they arise out of the facts contained in the record before us, but are constrained by rules of practice to affirm the decree of the Chancellor, because it is not allowable on exceptions to a report of a sale made under a decree of the court to show error in the decree. Parties summoned to answer a petition to sell land should then present their defence, and will not be permitted to remain silent, and, after a sale made and reported, come in and show cause against the decree for a sale. They should speak when called on to do so or afterward remain silent as to all matters then existing, and within their knowledge. We suppose this to be the ground of the decision of the Chancellor on the exceptions. It is claimed by counsel for the appellants that, because some of them are infants their rights should be protected by the court, notwithstanding the fact that they were not made known until the sale had been ordered, and made and reported. An insuperable difficulty in the way of adopting this view is that the record does not disclose whether the devisees of the land sold, and now claimed to have been exempt, were minors or adults. The agreement as to facts shows that some of the children of the testator are minors, but does not show which of them are such. If the devisees are minors, they may have their remedy against the decree prejudicial to their interests. Sledge v. Boone, 57 Miss. 222; Mayo v. Clancy, 57 Miss. 674; McLemore v. Chicago Railroad Co., 58 Miss. 514. If adults they have no right to complain of a decree against which they did not object when cited to show cause against it. The appellants excepted to the report of sale claiming the land as children and heirs of the decedent, but none but the devisees of the land have any interest in it.

Decree affirmed.