Marx v. Haley , 92 Miss. 113 ( 1907 )

Whitfield, O. J.,

delivered the opinion of the court.

This case presents for construction the will of Moses Marx, deceased, which the reporter will set out in full. It is evident that the testator regarded himself as, much more than solvent when he made this will. It turned out that he was insolvent. After the executor had sold everything else in accordance with the 'terms of the will to pay debts, there still remained some $1,321 of indebtedness, with nothing but the homestead left. This homestead was worth some $4,000. There has been no declaration of homestead by Moses Marx in his lifetime. The creditors, of course, had the right to have the $2,000 in value, over the value of the homestead, applied to their debts, or so much of it as might be necessary.

The will provided, as to the point here in contest, that the widow should have a life estate in this homestead, and that after her death the remainder should go to Maud and Ralph Jacobs, grandchildren, in equal shares. The executor filed a petition for the sale of the entire homestead for the purpose of paying this indebtedness. Mrs. Marx, in her answer, offered to’ give any bond the court might require to make the remainder estate bring the amount of the debt, if the court would limit the decree so as to order the sale of that remainder interest; and the only question before us for- decision is whether, from the terms of the will, looking at all its provisions, the testator meant that his wife should have this life estate in the homestead undisturbed by any sale of the whole, if the sale of the remainder interest would pay the debts, or whether he meant the homestead should be sold in order to preserve to the remaindermen their remainder interest in the $2,000, over and above the debts, which was exempt. It is proper to look at the situation of the parties, as well as at the terms of the instrument itself, and to the relationship of the parties. We cannot resist the conclusion, in so doing, that Moses Marx never intended that his wife should be subjected to the sale of the homestead in order to preserve the remainder interests of Maud and Ralph Jacobs. We think the chancellor should have taken the bond offered by Mrs. Marx, and entered a decree for the sale only of the remainder interest.

Reversed and remanded, for decree in accordance with this opinion.