King v. Talbert , 36 Miss. 367 ( 1858 )

Habéis, J.,

delivered the opinion of the court.

The appellants filed their petition in the Court of Probates for Carroll county, against the appellees (Adams, and heirs of Baker Lipscomb, deceased), praying distribution of the estate of said decedent, on the following grounds.

In 1862, the decedent and father of appellant, Mrs. King, died, leaving a will, which was duly probated and recorded, but only effectual as a bequest of his personal estate, for want of due attestation to devise real estate.

By the first clause of said will, the testator directed his property to be kept together, and the expenses of his family should be paid, and his children educated out of his effects.

By the second clause it was provided, that when any child arrived at age or married, he or she should receive $3200.

By the third clause he directed his farm to be continued, and for this purpose he directed his executors to sell his farm and land, and purchase one in some more suitable location.

By the fourth clause, he directs that the surplus proceeds of his farm be invested in property, or in such other manner as his executors should deem best for the interest of his family.

By the fifth clause, it is provided that if his widow should marry, that then his property should be equally divided among his children.

By the sixth clause, he appointed Reeves and Hill his executors.

These executors qualified under the will, and have kept the property together on testator’s farm ever since; that both of the executors are now dead, and Plilary Talbert and Monroe Johnson have been appointed administrators de bonis non, with the will annexed, on said estate, and that they are still carrying on said farm. The debts of the estate have all been paid, and there is a large surplus of money on hand.

Upon this state of facts appellants claim, by their petition, that they are entitled to distribution of said estate; that the administrators have no right to the possession of the realty under the will, and that it is therefore impossible to carry out the intention of the testator, expressed in the third item; that the direction in the first clause, that the property should be kept together, was made on the condition that the provisions of the third clause, directing the sale of the farm and the purchase of another, could be legally carried out; and that condition'failing, the said direction is void; that the direction to carry on the farm was a personal trust in the executors nominated in the will, and since they are both dead, it must fail for want of a trustee having the personal confidence reposed in those appointed by the testator himself.

To this petition there was a demurrer in the court below, which was sustained and the petition dismissed, and this appeal taken here.

That it was obviously the intention of the testator that his property should be kept together on his farm, mentioned in the will, by his executors, until such time as they could sell it and purchase another in a more suitable location, we cannot doubt. That the realty did not pass, by this will, for the want of proper attestation, but descended directly to his heirs at law, subject to the widow’s claim, is equally evident. But it by no means follows, that because the trust in relation to the land is invalid, that therefore the whole must fail.

The rule on that subject is accurately stated by Chancellor Wal-worth, in Hawley v. James et al. 5 Paige Ch. R. 318,458,460. That the invalidity of any particular trust, interest, accumulation, or limitation, created by will, will not destroy the trust and limitations which are otherwise valid, unless the latter are so mixed up with those that are illegal and void, that it is impossible to sustain the one without giving effect to the other. See also Kane v. Gott, 24 Wend. 641, 666. The cases cited by counsel for appellants, when carefully considered, sustain this rule. “ The general principle (says Judge Sharkey, in Mahorner v. Hooe, 9 S. & M. 280) is, as stated, that an illegal bequest or devise defeats all dependent bequests, subsidiary to and inseparable from it, which would otherwise be valid; citing 1 Jarman on Wills, 206; Roper on Legacies, 116,135; and Greaves v. Case, 4 Brown Ch. R. 67. This results, he adds, from the fact, that oftentimes, as the primary disposition fails, that which is secondary or dependent cannot be ascertained.” Here no such difficulty exists; the primary object of the testator was to keep his property together on a farm, in a more suitable location to be purchased by his executors. As a means to accomplish this end, he intended to devise a power to his executors to sell his real estate and farm, on which his property was situated, at his death. This power is void for want of due execution. But it fully appears that the remaining valid trusts are in no manner necessarily connected with, dependent upon, or inseparable from the old farm or the testator’s real estate. There is nothing to prevent the full and complete execution of the trust by his representatives, in accordance with his primary and main object, by the purchase of the tract of land directed, in some suitable location, and placing his property on that tract. That the representatives have ample means to do it seems to be evident from the statement in the record, and the general power at their discretion to invest the proceeds in property, or such other manner as they may deem best, leaves no doubt that it is certainly possible, easy, and natural, to sustain and give effect to the intentions and wishes of the testator, without giving any effect to his will as a devise of real estate; nor in any manner will such determination affect the general intentions of the testator, or the interests of his heirs and distributees. It is said, however, that the carrying on of the plantation was a personal trust in the executors, and upon their death could not be exercised by the administrators de bonis non.

It is manifest from the first clause of this will that the testator desired and intended, at all events, without reference to the agent by whom this desire should be accomplished, that his property should be kept together, and the expenses of his family paid, and bis children educated, out of his effects. He reposes no confidence, specially in relation thereto, in his executors, and leaves them no discretion.

And so in relation to the purchase of another farm, in “ some more suitable location;” while he directs “ his executors,” as such, generally, to make the purchase, for the accomplishment of this specified object, he leaves them no discretion as to the exercise of the duty enjoined.

In such case the rule is, that the power survives. The will evinces a design in the testator, that his direction is to be carried out, at all events, and not at the discretion of his executors or representatives. No special trust or confidence being reposed by the testator in these executors “nominatim,” their death cannot defeat the lawful intention and will of the decedent. Swett v. Penrice et al. 24 Miss. 416; Lusk v. Lewis, decided at October term, 1858. Not reported.

Appellants are therefore not entitled to immediate distribution of the whole estate, as sought by their petition; and the demurrer to the petition was properly sustained, and petition dismissed.

Decree affirmed.