Rainey v. Rainey, 87 So. 128

Rainey v. Rainey

87 So. 128 | Miss. | 1920

Smith, C. J.,

delivered the opinion of the court.

This case was presented to the court below on petition by the executors of the will of Wilbur F. Rainey, deceased, praying for a construction of the will and for a determination of the rights of the legatees and devisees therein.

The will reads as follows:

“Know All Men by These Presents:

“That I, Wilbur F. Rainey of the county of Coahoma and state of Mississippi, being of sound and disposing mind and memory and in good health at the present time, fully realizing the uncertainty of life and the certainty of death, do hereby make and publish this my last will and testament and declare the same to be my only and true last will and testament hereby revoking all former wills made by me.

“First. Upon my decease I wish all the just and legal claims upon my estate paid in full.

“Second. After the payment of my debts, as above mentioned, I hereby make the following bequests:

“To my wife Emma L. Rainey I give one hundred acres of land off the west side of section 6, township 29, range 2 west, running, north and south.

*796“To my nephews, I. W. Rainey and Howard C. Rainey, I give the balance of said section 6, township 29, range 2 ■west, except that land lying north of the public road and east of the property of the Rich Gin Company.

“To my brother W. A. Rainey I give that strip of land lying east of the property of the Rich Gin Company, and north of the public road and bordering on the Yazoo Pass and I further bequeath to him one thousand dollars in cash.

“To Mary Wilbur Howard, my niece, I give my land in section 16, township 29, range 2 west, being lots 3, 4 & 2, and I further bequeath her the sum of five hundred dollars in cash.

“To my brothers S. K. Rainey and Abner Rainey I give to each the sum of five hundred dollars in cash.

“All of the above-described real estate is situated in the county of Coahoma and the state of Mississippi.

“All of my town property and personal property and a five thousand dollar life insurance policy, I have made payable to my estate to be applied to my debts, and should there remain any debts unpaid my wife Emma L. Rainey, and my nephews I. W. Rainey and Howard C. Rainey must pay the said balance out of the policies of insurance on my life in their favor, each paying their -pro rata part out of the amount of insurance that they get.

“I hereby appoint my wife Emma L. Rainey and my nephews I. W-. Rainey and H. C. Rainey .executors and executrix of this my last will and testament and request that they be allowed to qualify accordingly without bond being required of them in the premises.”

It appears from the record that W. A. Rainey died during the life of the testator; that the property set' apart by the testator for the payment of his debts, together with that devised to W. A. Rainey, deceased, has been sold and applied to the payment of the testator’s debts, but that quite a large sum owed by him still remains unpaid, a part of which is secured by deeds of trust on the land devised in the will, and,, though the fact is not clear, we will as*797sume that the debts secured by these deeds of trust have not been probated. The testator’s widow is his sole heir at law. It appears that Mary Wilbur Howard has married a man named Walters.

The court below decreed that the pecuniary legacies to Wilbur Howard Eainey (which we presume is a clerical error and that Mary Wilbur Howard Walters is meant), and to Abner Eainey and S. K. Eainey, must wholly abate; that both the legacy and devise to *W. A. Eainey had elapsed; and that Emma L., Howard C., and Isom W. Eainey must pay the balance due on the debts of the testator to the extent of the proceeds of the insurance policies on the life of the testator payable to and collected by them.

None of the general pecuniary legacies are made a charge on the testator’s property either real of personal, and as the property that would have been otherwise subject to the payment thereof has been consumed, in the payment of the testator’s debts, all of these legacies must wholly abate.

Both the legacy and devise to W. A. Eainey elapsed because of his death having occurred prior to that of the testator, and the land devised to him, therefore, vested in the testator’s widow, his sole heir at law, subject to the right of the executors to sell it as provided by law and apply the proceeds to the payment of the testator’s debts.

The will creates a trust for the payment of the testator’s debts to the extent of the property specifically set apart in the will for that purpose, consequently it was the duty of the executors to pay all of the testator’s debts to the extent of the proceeds of such property, whether they have been probated or not. Abbay v. Hill, Fontaine & Co., 64 Miss. 340, 1 So. 484; Gordon v. McDougall, 84 Miss. 715, 37 So. 298; O’Reilly v. McGuiggan, 91 Miss. 498, 44 So. 986, 15 Ann. Cas. 623. And, as the proceeds of such property was insufficient to pay the testator’s debts, it was proper for the land devised to W. A. Eainey to be sold for that purpose, and the money realized therefrom *798should have been applied only to probated debts, that land not having been included in the trust for the payment of debts. But whether or not this was done does not appear, and we do not understand the point to be here material. Since the testator’s widow and nephews have elected to take the land devised to them, they must carry out the testator’s direction to pay out of the proceeds of the insurance policies payable to them any balance that may remain due on his debts, although such debts may not have been probated.

It is true that the testator’s widow" could have renounced the will and become entitled to her distributive share' of the estate under the statute of descent and distribution, not to exceed one-half thereof, section 5086, Code of 1906, Hemingvray’s Code, section 3374, and, also., thereby have relieved herself of the burden of applying any part of the proceeds of the insurance policy payable to her to the payment of the testator’s debts. But this she did not do. On the contrary, she elected to claim under the will, and, in order to do this, she must accept not only the benefits conferred, but, also, the burdens imposed thereby.

It is manifest from the provisions of the will'that the testator intended that the bequests and devises of specific property should not be subject to the payment of his debts, unless the property set apart therefor, including the proceeds of the insurance policies, should be insufficient therefor.

The case of Wall v. Dickens, 66 Miss. 655, 6 So. 515, cited by counsel for Mrs. Rainey in support of their contention that the testator’s widow" did not assume the burden of paying his debts by accepting the devise to her, is not here in point, the question there before the court being the right of a vddov, the sole heir of her husband who died partially intestate, to inherit land owned by her husband at the time of his death and not disposed of by his will, after accepting the property given her by the will.

Affirmed.