57 Miss. 775 | Miss. | 1880
delivered the opinion of the court.
The condition that William H. Turner, at the expiration of five years, should pay certain sums of money to persons named in the will, applied to the real estate devised to him as well as the personal property. All the gifts to him by the will were upon this condition. The manifest purpose of the testator was to give all of his property to his brother, William H. Turner, subject to the payment of his debts and of certain pecuniary legacies, after five years. There is such a blending of the real and personal estate, in the disposition made by the will, that no distinction can be drawn between the two classes of property, and the legacies are a charge alike on the real and personal property. The case of Adams v. Brackett, 5 Met. 280, is clearly distinguishable from this, by the fact that, by the will construed in it, the testator expressly indicated that his debts, funeral charges, and other necessary expenses should be paid from his personal estate. Here there is no distinction drawn between the real and personal estate. All of the testator’s estate, real and personal, is given to one person. There is nothing to indicate the purpose of the testator to give the land absolutely and unconditionally, and the personalty conditionally. The condition applies to all the property. 2 Redfield on Wills, 209, and cases cited.
The land sold by the devisee and executor, in pursuance of the authority conferred by the will on him to sell, “ in order to obtain money to pay the above legacies, or for any other purposes that he may think advantageous to himself,” is not subject, in the hands of his vendees, to a charge for the legacies. Iiis conveyance vested title free from any such charge. Unlimited power and discretion, as to the purpose of the sale, were given to the devisee and executor, and a purchaser from him acquired title free from all concern as to the legacies given by the will. Elliot v. Merryman, 1 Lead. Eq. Cas. 59, and notes. The jurisdiction of the court, in which the suit was brought, is expressly conferred by § 977 of the Code. For the error in the decree, in subjecting the land sold by William H. Turner to the payment of the legacies, it is
Reversed and cause remanded.