Stokes v. Stokes, 66 Miss. 456

Stokes v. Stokes

66 Miss. 456 | Miss. | 1889

Coopee, J.,

delivered the opinion of the court.

The land in controversy is a part of the estate of Mrs. A. P. Stokes, who died testate in 1877. By her will she devised and bequeathed her whole estate to her children in equal parts, and appointed her husband, M. M. Stokes, executor, without bond or surety, conferring upon him authority to “ sell and dispose of any of the property bequeathed in this will, when it shall appear to him to be advisable so to do, having an eye to the support and education of the children.”

Soon after the death of the testatrix, M. M. Stokes, executor, conveyed to R. T. Stokes the land in controversy, reciting as the consideration therefor the discharge of a debt due to said R.T. Stokes for money loaned by him to the testatrix and used by her in the purchase of supplies for her family and plantation. R. T. Stokes conveyed a portion of the lands to other parties and died. The present bill is exhibited by the children of Mrs. A. P. Stokes seeking cancellation of all the conveyances as clouds upon their title, and this relief having been decreed by the court below, the defendants appeal. The view we have taken of the rights of appellees renders it unnecessary to notice the relief prayed by the defendants as cross-complainants.

The principal controversy between the parties in the court below seems to have been as to whether the debt to R. T. Stokes, the grantee of the executor, was the debt of Mrs. A. P. Stokes or of her husband, M. M. Stokes. There is evidence tending strongly to prove that the money was borrowed on the credit of Mrs. Stokes and used by her in defraying the expenses of her plantation. On the other hand, M. M. Stokes positively swears that it was borrowed by himself and expended by him in his own affairs. But, to say the least of it, the evidence establishes the facts that the debt was recognized by Mrs. Stokes as her own, was asserted by *460the creditor to be hers, and was at the time so considered and dealt with by the executor. The probability that it would be fixed by the creditor as a charge upon the whole estate was great enough to warrant the executor, acting under tiie liberal power conferred by the will, in discharging it by the conveyance of the parcel of land in controversy. His power to convey was not dependent upon an absolute or apparent necessity, but might be exercised when it .should “appear to him to be advisable so todo.” Unquestionably he could, within the power, have sold either personalty or land (and have elected which to sell first) for the discharge of debts due by the testatrix, and where the probabilities were as great as they appear to have been here, that the debt asserted against the estate would be established, he might, as he did, fairly assume that it was “ ad visable ” to sell a part of the estate to relieve the remainder.

On the facts disclosed the complainants were not entitled to any relief

The decree is reversed and bill dismissed at the costs of complain-. •ants in this court and the court below.