Ex parte Dickson , 64 Ala. 188 ( 1879 )

STONE, J.

The will of David M. Dickson contains unusual, and somewhat contradictory provisions. The 2d item directs the payment of testator’s debts, and makes this, what the law expects, an executorial duty. The 3d clause evidently gives an estate to the widow, to continue during her life or widowhood, but charges upon it the support, maintenance, and education of the testator’s minor children. Its language is : “ It is my will that my beloved wife, Mary Ann Dickson, may retain all my property, both real and personal (after making the appropriations above provided for), during her natural life or widowhood, for her support and comfortable maintenance, and for the support, maintenance, and education of my minor children.” What testator means by “ appropriations above provided for,” is the payment of his debts “out of any available assets at their control.” The provision in the third item, for thb support, <fcc., of his minor children, was evidently intended to continue during their minority, and no longer. The remaining clause of that item renders this unmistakably clear. Its language is, “ provided, however, that she [Mrs. Dickson] be authorized, and it is my desire that she should, at the majority or marriage of each one of my unmarried children, give off or apportion to such child or children respectively, as they attain majority or marry, an amount equal to that I have already given off to those who are married, or as nearly this amount as she may be able to, without injury to herself and the remaining minor children; these allowances to be at her discretion.” Being authorized to give off, at her discretion, to the unmarried children, as they arrived at lawful age or married, shows that those who thus arrived at age, or married, would be no longer entitled to share in the ‘ support and comfortable maintenance,’ for which purpose testator had placed the residuum of his estate in the hands of his widow. To hold otherwise, would be to give them, not only “support, maintenance and education” during the life or widowhood of Mrs. Dickson, but, at her discretion, an additional amount equal to that he had already given off to his children previously married. There is not only no warrant in the will for giving them this double portion, but such construction is palpably opposed to the general intent of the will, which contemplates perfect equality in distribution among testator’s children. So, we repeat, the minor children, whose support, maintenance, &c., were by the will made a charge on the estate given to the wife, were entitled to its enjoyment, only until they severally arrived at lawful age, or married. Now, as it could not be known that Mrs. Dickson would not live, and remain a widow, until after the youngest child would become of age or marry, it was possible, if not probable, that there would come a time when Mrs. Dickson would enjoy the entire use of the property, relieved of all charge for the support and maintenance of the minor children. The will, then, gave her a life estate in the residuum of the property, charged with the support, &c., of the minor children, and subject to be abated, at her discretion, by giving off to the unmarried children, as they attained majority, or married.

We said above, that this will contains unusual, and somewhat contradictory provisions. In the 4th item, testator, speaking of the advancements he had made to two of his married daughters, and the values he had placed upon them, used this language, that he had “ made due entry on account of the same, shall in any future allowances make similar entries, and direct my executors to pursue the same course.” In his will, he appointed two executors, his wife and a son; and the language copied last above indicates that he expected both his executors to participate and act in the matter of giving off to the remaining children, for which he had made provision. Yet, in the third item, copied above, he had expressly charged that duty on his wife, and left its exercise to her discretion; ignoring in this service all participation or discretion at the hands of her co-executor.

Again : In the 7-th item, testator declares his purpose to be, to allow his wife, “ as one of my [his] legal representatives, during her widowhood, to exercise a reasonable discretion and power in the management of my [his] estate, with reference to the sale of real or other property, and making investments of surplus money, &c., by and with- the advice and consent of the court.” In this item, large power and discretion are conferred on Mrs. Dickson, as one of the personal representatives ; but it is conferred on her alone, not on her and her co-executor. If she had failed to qualify, had resigned, or had otherwise lost or surrendered her authority as executrix, it will scarcely be contended her surviving or continuing co-executor, or an administrator with the will annexed, could have exercised either of these powers. They are personal trusts, confided to Mrs. Dickson; not executorial duties, entrusted to the executorial office. Camp v. Coleman, 36 Ala. 163; S. C. Ib. 159; Hitchcock v. U. S. Bank, 7 Ala. 386, 436 ; Perkins v. Lewis, 41 Ala. 649; Anderson v. McGowan, 42 Ala. 280.

We come, then, to the conclusion that, in this will, there are no trusts, the execution of which is charged on the executorial office ; and it follows, that no reason is shown why the Probate Court should not entertain jurisdiction, and make the final settlement of Mr. Dickson’s estate.— Coleman v. Camp, 36 Ala. 159; Johnson v. Longmire, 39 Ala. 143. The petitioner is entitled to the relief she prays for.

The writ of mandamus,. as prayed for, is ordered to be issued, unless the issue of such writ is rendered unnecessary, by a compliance, in the court below, with the principles of this opinion. Let the costs of this appeal be paid by the contesting parties in the court below.