Opinion
No. 32552.
February 1, 1937.
1. WILLS.
Rule, that personal bequests lapse in absence of personalty to satisfy them, must yield to intention of testator when that intention is sufficiently disclosed.
2. WILLS.
Devise of plantation to use of devisee for four years at an annual rental to be paid to designated beneficiaries held to pass an interest in the land itself, and not to be subject to general rule of entire abatement because of insufficiency of personalty to pay debts in view of testatrix's manifest intention not to require abatement, in that acceptance of devise by the devisee bound him to make the payments therein stipulated, whether he made the same out of the use of the plantation or not.
3. WILLS.
Where use of real property is given by will, presumption is that the net income or profit is meant and that the beneficiary must pay out of the gross receipts all expenses of a reasonable upkeep, taxes, and like charges against the devised property.
4. WILLS.
Under devise of use of plantation for four years specified rental to be paid to designated beneficiaries whereby devisee was bound to make rental payments, whether he made the same out of the use or not, devisee held required to pay out of gross receipts all expenses of reasonable upkeep, taxes, and like charges, but not the interest on previous or mortgage debts of the devised property, and required to contribute only proportionately to the cost of administration and other debts.
5. WILLS.
Where testatrix devised first plantation, subject to four-year use, to adopted daughter, and second plantation to others, no part of first plantation could be encumbered or sold to pay mortgage encumbrance on second plantation.
6. WILLS.
Where testatrix devised first plantation, subject to four-year use, to adopted daughter, and second plantation to others, proceeds of sale of realty in another state and all available net rents collected during execution of will, but not including first four years on first plantation, should be applied half and half to mortgage indebtedness of both plantations.
7. APPEAL AND ERROR.
Supreme Court would express no opinions on questions expressly and definitely reserved by chancellor.
APPEAL from chancery court of DeSoto county. HON. N.R. SLEDGE, Chancellor.
Holmes Bowdre, of Hernando, for appellant.
Item II of Codicil V is not a devise of land, nor in the nature of a devise of land. At most, it is a gift of the use of land for a period of four years for an annual rental of $2500 per year, admittedly for a very much less than a fair rental value. No title to the land passes. It is not a charge on the land. It is more in the nature of a demonstrative special legacy. The land could not be sold to satisfy this legacy. It is really an offer or option to J.W. Sanders for him to lease the Glover Plantation for four years at an annual rental of $2500 per month. It is optional with him. He can take it for one year or more, and then abandon it. It is not a devise. At most it is a leasehold, which is personal property, and if J.W. Sanders should die today it would be a personal asset which would go to his administrator. If it is personal property as to J.W. Sanders, it is also personal property as to Mrs. C.T. Knight's Estate, and is a legacy by virtue of her will which carves the four year lease out of her estate in this land. It is personalty.
Faler v. McRae, 56 Miss. 227.
We are referring to the gift to J.W. Sanders, that is the differential between $2500 annual rental and a fair rental value (which, according to our contention, is about $8000) which is approximately $5500 per year. The legal status of the gift is practically the same as if the testatrix had bequeathed to J.W. Sanders a legacy of $5500 per year for four years, to be paid out of the annual rents of the Glover Plantation in excess of $2500. It differs, however, from an annuity, in that it is an uncertain amount.
The whole difficulty which confronts the court in this matter arises out of the insufficiency of the personal estate to pay debts and expenses of administration. We understand the general rule to be as follows: first: the residuum abates; second: the general legacies abate; third: special legacies abate ratably as to each other. All of these abate, if necessary, to their complete extinguishment before there is an abatement of the specific devises.
Gordon v. James, 86 Miss. 719.
Item XI of the will is a specific devise of the Glover Plantation and all personal property located thereon to Kate Nash Torian. The legacy of said personal property has already abated. The devise of said land should not be required to abate in whole or in part until all other available assets have been appropriated to the payment of debts and expenses.
It was the dominant purpose of said testatrix that Kate Nash Torian should receive the Glover Plantation devised to her under Item XI of said will free from debt, and that the devisees, Mrs. Helen Knight Howard, Mrs. Willie Woodson Gaither and Margaret Sangster Roach, should receive the Long. Pond Plantation free from debt, including the mortgage debt against said plantation. There is nothing in the will or any of its codicils that negatives this intention. This dominant purpose should prevail and should be given effect even if to do so it becomes necessary for the bequest to Joe Sanders, in Item II of Codicil V, to abate. This is not defeating the intention of the testatrix. Her intention fails because of the insufficiency of the amount of the estate.
It is therefore necessary and proper to consider the whole will with the codicils thereto attached, and that the will, together with all codicils, shall be construed together as one instrument.
69 C.J. 120.
In construing a will and codicils it is the duty of the court to ascertain the controlling intention of the testator and arriving at the testator's intention effect should be given as far as possible to all the provisions of the will and codicils read in as one document.
Joyner v. Joyner, 117 Miss. 507.
The income from all other DeSoto County land, other than Long Pond Plantation and Glover Plantation, is inconsiderable. But this income should be applied, so long as necessary, to the payment of the mortgage debts against Long Pond and Glover Plantations. And the Chancellor should have, in his said decree, adjudged that the income from all of said DeSoto County farms, other than the Long Pond and the Glover Plantations, should be applied to the payment of said indebtedness and the expenses of the administration. And the Chancellor should have adjudged that all of the DeSoto County farms, other than the Glover Plantation and Long Pond Plantation, are primarily liable to abate to their extinguishment, before the devise of the Glover Plantation and the Long Pond Plantation should abate to any extent whatsoever.
R.F.B. Logan and John W. Barbee, both of Hernando, for appellees, Mrs. Gaither and Mrs. Allen.
We respectfully insist that the use of the Glover Place for four years at and for the sum of $2500 per year under the will of Mrs. Knight is personal property and, of course, should abate as other bequests have already abated under a decree of the lower court.
7 Cyc. 125; 32 Cyc. 666, 668; 50 C.J. 763, sec. 37; Hancock County v. Imperial Stores Co., 93 Miss. 822, 47 So. 177, 17 L.R.A. (N.S.) 693, 136 Am. St. Rep. 861; Orrell v. Manufacturing Co., 83 Miss. 815, 70 L.R.A. 881; Jones v. Adams, 104 Miss. 397, 61 So. 420; 40 Cyc. 1899.
Abatement is the reduction of the legacy on account of the insufficiency of the estate of the testator to pay all of his debts and legacies in full.
40 Cyc. 1904.
Where the assets prove insufficient to pay the debts of the testator and all of the legacies, general, specific and demonstrative, the loss falls primarily upon the general legacies, which must abate proportionately, unless the will shows an intention on the part of the testator to prefer one general legatee over another; and this is true although the general legatee be the widow of the testator, where the reservations made for her by the will exceed her common law rights, at least so far as the excess is concerned.
40 Cyc. 1904; 69 C.J. 985, sec. 2185.
Counsel for the executor concede that the leasehold to Joe Sanders is personal property, but contend that it is a charge on the land and, therefore, should not abate. We respectfully insist that opposing counsel are in error because there is nothing in the will of Mrs. C.T. Knight that shows an intention on her part, either expressly or by implication, to charge the use of the Glover Place to Joe Sanders for four years on the Glover Place, and if she did not make it a charge on said Glover Place, then it cannot be a charge on said place.
If in her will she had said I give the Glover Place to Kate Nash Torian for life with the understanding that she shall take it subject to the four year lease given Joe Sanders, or if she had used any other similar words showing an intention to charge this four year lease on said place, then in that event it would be a charge on said place but having failed to do this, we respectfully insist that no matter what the bequest to Joe Sanders of the use of the Glover Place for four years may be, or may be called, it must abate as other bequests because there is not sufficient money and personal property on hand to pay the debts of decedent and the expenses of administering her estate.
We respectfully insist that the burden is on Joe Sanders, since he raises the question, to prove that the use of the Glover Place for the first four years after the death of Mrs. Knight is a charge on the Glover Place, and he has failed to do this.
Counsel for Mr. Sanders argue at length as to the intention of Mrs. Knight and that her intention should be carried out, and we think this is true except that her intention as to a charge on the Glover Place must be found in the will or codicil and it is not there, then in that event, he is confronted with the law of abatement as in this case, and then the intention of the testatrix must give way as it has already given way in the decree of the lower court as to certain general legacies.
Gordon v. James, 86 Miss. 719, 1 L.R.A. (N.S.), 461; Cady v. Cady, 67 Miss. 425; Knotts v. Bailey, 54 Miss. 238, 28 Am. Rep. 348; Heatherington v. Lewenberg, 61 Miss. 376; Woesner v. Smith, 136 Miss. 894, 101 So. 849; Rainey v. Rainey, 124 Miss. 780, 87 So. 128; 69 C.J., secs. 2477, 2486, 2487, 2506; Carroll v. Botsai, 65 Miss. 350; Crossett v. Clements, 7 So. 207.
We respectfully insist that everything we have said in reference to the bequest of the Glover Place to Joe Sanders for four years applies also to Paragraph III of Codicil V.
There is nothing in this paragraph making the gift of the rental to Kate Nash Torian and Helen Knight Howard a charge upon the $2500 a year nor a charge upon the land itself, and being specific bequests that should abate, it seems to us for the same reason that the general legacies have abated. Then too, as we understand the law, a gift of the income from property means the net income and as the rental on the place of $2500 from Joe Sanders is less than the annual taxes there is nothing left out of the $2500 to be paid to Kate Nash Torian, now Mrs. Pickard, and Mrs. Howard.
69 C.J., sec. 2125.
The use of the Glover Place to Joe Sanders for four years after the will takes effect for an annual rental of $2500 is personal property, a specific bequest, and should abate.
The bequest to Mrs. Kate Nash Torian Knight Pickard of $100 per month and the bequest to Mrs. Helen Knight Howard of the balance of the $2500 annual rental for the Glover Place should abate.
The balance due on the debts of Mrs. Knight and expenses of administering and winding up her estate, if any, after all of the land in Shelby county, Tennessee, and other debts have been collected and applied on the debts and expenses should be prorated and charged on the Glover Place, the Long Pond Place and the hill land in De Soto county, Mississippi, and should be charged in the proportion that the value of each bears to the other, that is, if the Glover Place is valued at three times the value of the Long Pond Place and the hill land then in that event, the Glover Place should be charged with three-fourths of said balance and the Long Pond Place and the hill land should be charged with one-fourth of said balance.
Dulaney Bell, of Tunica, for appellee, J.W. Sanders.
The decree is favorable to Mrs. Pickard in holding that the cotton gin is realty and not personalty and that, therefore, Sanders had the use of it for the four year period as a part of the Glover Plantation. Since this ruling is not discussed in the brief filed for appellant, we assume that its correctness is also conceded, as indeed it must be under the decisions of this court.
Richardson v. Borden, 42 Miss. 71; Tate v. Blackburne, 48 Miss. 1.
The testatrix did not require Sanders to pay taxes on Glover Plantation.
It is rather difficult to see why it should be insisted that an obligation on the part of Sanders individually to pay such taxes should be inserted in the will by judicial construction. No word, clause or provision of the will, or of any codicil, expresses such an intention, or intimates in any way that Mrs. Knight had such an intention.
Mr. Sanders was obligated to pay the 1934 taxes only because Mrs. Knight included an express stipulation in the lease. Without this stipulation he would have been under no such obligation.
In the absence of an agreement between them to the contrary, a tenant is under no obligation to his landlord to pay the taxes on the leased premises.
1 Taylor on Landlord and Tenant (9 Ed.), sec. 341; Jones on Landlord and Tenant, sec. 412; Underhill on Landlord and Tenant, 1106; 16 R.C.L. 812; 18 A. E. Ency. of Law, 650; Wood v. Morath, 128 Miss. 143, 90 So. 714.
It is said that the use of the land given Mr. Sanders is a mere leasehold and, therefore, personalty and therefore subject to abatement as personalty. The case of Faler v. McRae, 56 Miss. 227, is cited and holds that when a person holding a leasehold interest in land dies, the leasehold interest is considered personalty in dealing with his estate and if Mrs. Knight, instead of owning Glover Plantation, had held merely a four year lease and had bequeathed or devised it to Sanders we might be in position to agree that this abated along with specific legacies. However, we do not find that our esteemed friends, counsel for appellant, have cited any decision of the Mississippi Supreme Court or any other authority whatever holding that a bequest of a legacy charged on land, or a bequest of the use of land owned by a testator, abates in any manner except proportionately with devises or realty.
The making of a charge against land, whether it be a use of the land or for the payment of a specified sum or for the payment of a part of the income, fixes the gift as having the nature of realty and evidencing an intention that there be no abatement except along with realty.
The bequest or devise to Mr. Sanders is not in any case a general legacy nor is it a specific or demonstrative legacy within the more ordinary use of those terms. It is a charge or encumbrance in his favor which the testatrix placed upon specific land; and just as a charge against specific personal property abates to such extent as it may be necessary to resort to that property, so a charge or encumbrance placed on realty will abate only to the extent that the realty may be resorted to for the payment of debts and expenses.
69 C.J. 995; Elliot v. Carter, 6 Grat. 584.
The rules with reference to abatement are based on presumptions as to the intention of the testatrix and her intention is always to be sought and always to be given effect to the fullest extent the circumstances permit.
While the doctrine of equitable conversion is well settled on principle and reason, and is recognized in numerous cases determined by this court, the sphere or limitation of its application is equally well established, and should be observed. The sole purpose of the doctrine in the case of a will being to effectuate the intention of a testator, it cannot be invoked when his intention fails or is incapable of accomplishment. The reason of the rule then ceases, and the rule itself no longer obtains. This principle is as well settled on reason and authority as the doctrine of equitable conversion itself.
Anderson v. Gift, 156 Miss. 736, 126 So. 656.
We respectfully submit that the learned chancellor was entirely correct in holding that Mr. Sanders' tenure of Glover Plantation and the charges against same in favor of Mrs. Pickard and Mrs. Howard are only subject to abatement proportionately with devises of realty.
Howie Howie, of Jackson, for appellee.
Mrs. Knight executed and published her will on December 17, 1929. From after developed facts it would appear from this record, and more especially from the codicils of her will, which were published June 6, 1930, May 14, 1931, November 17, 1931, and January 28, 1932, that the properties of Mrs. Knight were constantly decreasing. That at the time she made her will in 1929 she was very prosperous, had large properties both personal and real, and provided for large legacies for friends, relatives, acquaintances and servants.
At that time she provided for her adopted daughter, Kate Nash Torian, now Mrs. Pickard, the sum of $200 per month. That afterwards when her properties had decreased and her holdings shrunken to a great extent on account of losses and depression, she provided in her Codicil No. 5, Article 3 thereof, a sure method by which her adopted daughter, Mrs. Kate Nash Torian Pickard would be assured of $100 per month, and that her adopted daughter, Mrs. Helen Knight Howard, would have an income with which to educate the daughters of Mrs. Howard, by placing a provision in her codicil that "Joe Sanders could have the use of Glover place for the first four years after the will takes effect at the annual rental of $2500 per year." At the same time she had the purpose of rewarding to the extent of a very low rental for the use of Glover Plantation, her very useful and capable employee, Mr. Joe W. Sanders. Mr. Sanders had for more than twenty years managed her plantations and cared for her and her business during her last illness.
From this it is evident that she recognized the uncertainties of the plantations being successfully operated and she desired a certain income for her younger adopted daughter, Mrs. Pickard, and for the education of the children of her adopted daughter, Mrs. Howard. Throughout the whole will there appears to have been the ruling and dominant purpose of the testatrix, Mrs. C.T. Knight, to make specific provisions for her adopted daughters and the children of her adopted daughter, Mrs. Howard. She provided that Mrs. Howard should have the residue of her estate. She provided that Mrs. Howard should have one-half in fee simple absolute of all her real estate other than Glover plantation. She provided that her adopted daughter, Mrs. Pickard, first should have the use of Glover plantation, but after her finances had become very much depleted she then wrote codicil 5, providing that Mr. Sanders should have Glover plantation for four years after her death at a small rental of $2500 per year, and that part of this sum should be paid to Mrs. Pickard, namely $100 per month, and the remainder to Mrs. Howard for the education of her two daughters.
Clearly if Mrs. Knight had not desired, and it had not been the prevailing purpose to make specific provisions for both her adopted daughters, and their children, she would not have made the change in codicil No. 5, with reference to the use of Glover plantation. When this codicil was written she evidently had in mind the facts which developed after her death, namely, that her personal property was not sufficient to pay the debts which she owed, or would owe at the time of her death.
The bequest or devise to Mr. Sanders is not a specific or demonstrative legacy within the ordinary meaning of that term, it is, however, a charge upon the realty and that purpose is very definitely named in item 3 of codicil 5. If there was a deficiency in the amount necessary to pay off the debts and costs of the administration it would be subject to be taken and applied toward the payment of these items, but it would be necessary to prorate the amount according to the devisees respectively, and that Glover plantation along with the other lands devised would necessarily have to contribute proportionately, and to that extent the rents thereon would be proportionately decreased so as to take care of any deficiency which might be charged against it.
69 C.J. 995.
Argued orally by F.C. Holmes, for appellant, and by J.W. Dulaney and R.F.B. Logan, for appellees.
Mrs. C.T. Knight, a childless widow, a resident of De Soto county, died on October 3, 1934, at an advanced age. Although she had never had any children of her own, so far as the record discloses, there had been brought into her home, during the lifetime of her husband, a child named Helen, who was later adopted by Mrs. Knight, and who, at the date of Mrs. Knight's will, had married Dr. Howard and gone to live in her husband's home. After Mr. Knight's death, another child, Kate Nash Torian, was taken into Mrs. Knight's home, and was by her reared almost from infancy. This child was later adopted by Mrs. Knight, but without change of name, and was a minor residing with Mrs. Knight until Kate's marriage, only a short time before Mrs. Knight's death — or, according to one statement, after Mrs. Knight's death.
Mr. Knight left to his wife by will a considerable estate of which there remained at Mrs. Knight's death, a delta plantation called Long Pond, containing about 700 acres, and also several smaller tracts in the hill section of the county; the hill lands aggregating about 700 or 800 acres. Mrs. Knight owned, in her own right, a delta plantation called Glover, consisting of about 2,200 acres, the larger part of which was in cultivation, and that apparently was true also of the other lands.
On September 23, 1929, Mrs. Knight made her will by which she devised the lands mentioned, and also made numerous pecuniary bequests. It will be at once observed that this will was made at a date when the artificial prosperity which had prevailed for a few years theretofore had not yet broken into one of the country's most disastrous depressions, and when apparently but few realized the nearness of the approach of that worldwide misfortune. The testatrix provided in her will that her executor should have five years to wind up her estate and to execute the provisions of her will. Had the prosperous conditions prevailing at the date of the execution of the will continued to exist, everything directed by her to be done could have been accomplished without serious difficulty. But when the depression settled over the country in 1930, and continued even until Mrs. Knight's death, large plantation property, unless managed with exceptional judgment and industry, was scarcely able to pay operating expenses, including taxes and the necessary upkeep and replacement of livestock and farm machinery. And the situation had become such when this hearing was had in 1935 that there were debts, including costs of administration, against the property of approximately $45,000 and with but little personal property left out of which to pay same, to say nothing of the pecuniary legacies, none of which have been paid.
The testatrix by several codicils attempted to meet the situation brought about by the depression, and yet at the same time to secure the current execution of the main or dominant purposes of her original will. In her will she had left all the real property which she acquired through Mr. Knight's will to Helen Knight Howard and to two nieces of Mr. Knight, and the other real property, the Glover plantation, she devised to Kate Nash Torian. But as to the latter, who was yet a child, she went further and provided by item IX of her will that "if the bequests and devises herein to Kate Nash Torian shall fail to produce her a monthly income of two hundred ($200.00) dollars then my trustee (executor) is to provide this amount for her out of other property before any other bequests or devises shall take effect." On January 28, 1932, it must have become apparent to the testatrix that the monthly income to Kate Nash, which she had provided in her original will, was in danger of failure for want of plantation profits; and it having become necessary for the testatrix to encumber Long Pond plantation to the extent of $15,000, there being already a like encumbrance on Glover, so that Mrs. Howard's income from the property devised to her would also likely disappear, Mrs. Knight, on the date last aforesaid, made codicil No. 5 to her will as follows: "I will and bequeath that the said Joe Sanders shall have the use of the Glover place for the first four years after the will takes effect, for the annual rental of Twenty Five Hundred ($2500) Dollars per year. I will and direct that out of the proceeds from the rental of the Glover place during the first four years that only one hundred ($100) per month be paid to Kate Nash Torian and that the balance of said rental be paid over to Helen Knight Howard during the first four years for the education of her two daughters Clemmie Howard and Helen Howard."
Joe Sanders, or J.W. Sanders, mentioned in said codicil, was the executor appointed to administer the entire will; he had managed all these properties for Mrs. Knight for many years, and resided at the plantation house on Glover. Other portions of the will, as well as other codicils, evidenced Mrs. Knight's confidence in his ability and loyalty. The devise of the use of Glover to him for the four years for the sum mentioned was, as we believe, a plan or method by which she deemed she could be best assured under the pall of depression which then hung over all such property, of the working out of at least a living monthly income to her adopted daughter, Kate; and by the force of connection of the payment from the remainder of the prescribed rent to Mrs. Howard in the same codicil as that provided for Kate Nash, this codicil took the place of and stood in the same situation of absolute priority which was expressly provided by the above-quoted provision of item IX of the original will. This assurance would come from the elements of the personal character of Sanders, just mentioned, but, in addition, there would be the personal liability of Sanders later to be mentioned.
We do not deem it necessary to enter upon refinements of terms or definitions as to the character of estate devised to J.W. Sanders by the four-year codicil above mentioned; we content ourselves with the statement of what we find to be its dominant purpose, and in accordance therewith, its position of priority over other bequests and devises. Counsel have argued that the four years' devise to Sanders is but a chattel real, being less than a life estate or one of inheritance, and is, therefore, but personalty which must abate and lapse, together with all other personal bequests, because of the insufficiency of personal property to pay debts. While it is the general rule that personal bequests lapse in the absence of personalty to satisfy them, this is not an absolute rule and must yield to the intention of the testator, when that intention is sufficiently disclosed, as can be seen from the instructive case, Stuart v. Robinson, 80 Miss. 290, 31 So. 903, 92 Am. St. Rep. 603. And we think the intention of the testatrix, above adverted to, is strengthened so as to place the matter beyond fair doubt when we consider that under a devise of use, such as was granted to Sanders, the acceptance thereof binds him to make the payments stipulated whether he makes the same out of the use or not. 28 R.C.L., pp. 307, 308; Red v. Powers, 69 Miss. 242, 13 So. 586; Roberts v. Burwell, 117 Miss. 451, 78 So. 357.
We are of the opinion that, under the peculiar circumstances of this case, the devise of the four years' use of the land to Sanders passed an interest in the land itself (69 C.J., p. 385) not subject to the general rule of entire abatement; and we think the further rule under such devises applies that where the use of real property is given, the presumption is that the net income or profit is meant and that the beneficiary must pay out of the gross receipts all expenses of a reasonable upkeep, taxes, and like charges against the devised property (69 C.J., p. 387), not to include, however, in this case, the interest on its previous or mortgage debts. And being under the conditions here present a nonabatable interest in the land, the devise must contribute only proportionally to the cost of administration and other debts, except the mortgage debts. That the devisee, Sanders, should be chargeable with the taxes and upkeep comes also from the view of this devise already expressed, to wit, that it was a means or plan resorted to by the testatrix on those dark days to assure to the particular beneficiaries in whom she would naturally be the most interested, the monthly necessary income therein mentioned which could hardly have been a safe method or plan if the taxes on the Glover place, amounting to approximately $3,000 a year, were not required to be taken care of by Sanders in addition to the express amount charged upon the land through him, especially since the term was for four years, and the Glover place was by far the largest and most productive as compared with all the remainder of the property.
The matters dealt with in the foregoing paragraphs are those to which the greater part of the argument of the various parties in interest has been devoted. Other questions raised will be dealt with by us in a brief manner without going into specific reasons which would unduly extend this opinion. We are of the opinion that no part of Glover plantation can be called upon or encumbered or sold to pay the mortgage encumbrance upon the Long Pond place, nor that the other devised property may be called upon to pay any part of the mortgage encumbrance on Glover. That five years will be allowed from the date of the death of the testatrix to conclude the execution of the will. That the proceeds of the sale of the real estate in Tennessee shall be applied half and half to the mortgage indebtedness on Glover and Long Pond (item XII), and that all the available net rents throughout said five years, but not including the first four years of Glover, shall be likewise applied (item III, codicil IV), and that any other available personal property shall be applied to the other debts including the cost of administration, and that as to any deficit in said debts, not including the mortgage debts, all the devises shall contribute proportionately according to value.
As to all other questions decided by the chancellor, his decree is affirmed; and as to those expressly and definitely reserved by him, we express no opinion, since we are not authorized to adjudicate issues not passed upon by the chancellor expressly or by necessary implication.
Affirmed in part, and in part reversed and remanded.