Sorrell v. O'Brien

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. *Page 345 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.