Opinion
5 Div. 736.
February 12, 1920. On Rehearing, June 3, 1920.
Appeal from Circuit Court, Tallapoosa County; S. L. Brewer, Judge.
George A. Sorrell, of Alexander City, for appellant.
Pecuniary legacies are not a charge on land, unless the intention to charge is manifest from expressions, or by fair implication. 65 Ala. 1; 82 Ala. 402, 8 So. 261, 60 Am. Rep. 743; 127 Ala. 549, 28 So. 964; 199 Ala. 67, 74 So. 37. See, also, 69 Ala. 275; 65 Ala. 10; 40 Cyc. 2011.
D. W. Crawford, of Dadeville, for appellee.
A trust will not fail for want of a trustee. 142 Ala. 163, 37 So. 929; 167 Ala. 627, 52 So. 746; 39 Cyc. 277; 2 Alexander on Wills, 1656. The legacy was a charge on the land of the testator. 199 Ala. 67, 74 So. 37; 127 Ala. 549, 28 So. 964; 40 Cyc. 1779. The legacy was a valid one, enforceable in equity. 20 Ala. 491; 65 Ala. 321; 38 Ala. 695; 92 Ala. 537, 9 So. 195.
The parties are agreed that the concluding clause of the fifth paragraph of the will by which power was vested in testator's widow and executrix, in order to carry out the provisions for the support and maintenance of complainant, appellee, to demand and receive of testator's children or their descendants such reasonable rent for the use of the property devised to them as may be necessary for that purpose. The parties are agreed that this clause fastened a charge upon the lands devised to the children. Appellant construes the power contained in the fifth paragraph as affecting only the lands devised in fee to testator's children, and this as being the exclusive provision for his sisters; appellee, on the other hand, conceding that the fifth paragraph does fix a charge on the lands devised in fee to testator's children, construes the provision, not as exclusive, but as additional to that made by the fourth paragraph, which latter, she contends, should be construed as a provision for herself (the other sisters of testator having departed this life), fastening a lien upon all the property of testator's estate, and it was in pursuance of this theory that appellee filed her bill to charge her support and maintenance specifically upon lands devised to testator's widow for life with remainder to their children, averring a necessity for such decree for that she was wholly without means and all the personal property left by testator had been disposed of and otherwise appropriated.
There can be no doubt that the fourth paragraph of the will, set out above, created a trust for the benefit of appellee along with the other then living sisters of testator, and by it also testator's widow as executrix is "requested and directed to make such provisions and devote such proceeds of my estate as may be necessary to support and maintain my sisters or such of them as may need it." But it is clear also on the language of the last clause of the fifth paragraph that testator, "in order to fully carry out the provisions of the fourth paragraph," intended specifically that his executrix should demand and receive from his children or their descendants "such reasonable rents for the use of the property herein bequeathed [therein devised] to said children as may be necessary to fully carry out said provisions of this will." A legacy of the character disclosed by the general direction first above quoted will not constitute a charge upon lands, unless the intention so to charge is manifested by express words or fair implication. Taylor v. Harwell, 65 Ala. 1. A charge upon lands generally will not be implied where a special fund is provided, notwithstanding the special fund may be found insufficient for testator's purpose. Sistrunk v. Ware, 69 Ala. 275. These authorities and the principles on which they are founded afford sufficient reason for denying appellee's contention.
The power of sale vested in testator's executrix by the first clause of the fifth item of his will does not operate to change in any wise the provision made for his sisters. It did not convert the lands devised to the widow into personalty thereby bringing them under the influence of the fourth item. That power affected lands devised to the widow and its effect was to authorize her to dispose of the fee in them for her own purposes and at her discretion. There is no semblance of a direction that these lands be sold for the support of testator's sisters. Nor do we apprehend that our holding that the fifth item of the will provided the sole means of support for the sisters (outside of the personal estate left by testator) destroys the mandatory provisions for their support; it simply construes that provision according to the rule of the authorities — a rule formulated with the design to give effect in every case to the testator's intention as expressed in the written evidence of his last will and testament.
Appellant's demurrer to the bill should have been sustained.
Reversed and remanded.
ANDERSON, C. J., and GARDNER and BROWN, JJ., concur.
On Rehearing.
Rehearing denied.
ANDERSON, C. J., and SOMERVILLE and GARDNER, JJ., concur in the opinion.
McCLELLAN and BROWN, JJ., concur in the conclusion.
THOMAS, J., not sitting.
This is the second appeal involving the construction of the will of William B. O'Brien, deceased (Knight v. O'Brien, 202 Ala. 440, 80 So. 824); the question then considered being the quality of estate the two sons of the testator took in the property described in item 1 of the will. It was decided that they took an absolute fee. In determining the inquiry then presented, the whole will was considered, and among other features the provisions quoted in that opinion from the fifth item; and in definition of its effect it was declared, upon the apt authority of McRee v. Means, 34 Ala. 349, 377, that the exaction, in the then quoted provision, of such reasonable rent as might be necessary to fully and completely carry into effect the provisions of the will, imposed only a personal charge. In the application for rehearing in this cause it is stated that the provision above referred to, in item 5, "would by its own terms be destroyed by the death or marriage of the widow," thus necessarily affirming that no charge upon the land devised to the two sons was intended or effected by the testator. If, as has been held, the provisions of item 5 for a reasonable rent did not operate to impose a charge upon the land devised to the two sons, it seems quite clear to me that a charge upon other real estate was not imposed by other provisions of the will of Mr. O'Brien.
Furthermore, a consideration of the whole will convinces me that the testator intended to repose in his widow a personal trust, based upon personal confidence in her judgment, to provide for the support of his sisters during the life of his widow; and, hence, did not, in any sense, impose upon the real estate a charge to provide the means necessary to accomplish his purpose with respect to the maintenance and support of his three sisters. Therefore, when Anna E. O'Brien died, the power created and the trust designed in the will terminated.
For these reasons I concur in the reversal entered.
BROWN, J., concurs in the foregoing.