Forrest v. Jennings

The opinion of the Court was delivered by Mr. Justice Watts. This is an action against the estate of Rosanna Parkman by creditors of the estate of W. L. Parkman. Mrs. Parkman left her will in due form, and the will is in the following words, which raise the questions to be determined by the Court: “Second. I will, devise and bequeath unto my beloved husband, W. R. Parkman, all my property, real and personal and mixed, that I may own at the time of my death, wherever the same may be situate, for his use, behoof and benefit forever, without any limitation or restrictions of any kind whatever. “Third. In the event that my said husband, W. R. Parkman, shall die seised and possessed of property received from my estate without having made provisions as to who shall receive the same or leaving no specific directions as to what shall be done therewith, I will and devise and bequeath the same unto my nephew, Tom Brown Jennings.” The case was tried before Judge Sease on the agreed facts, and the question was: “Did the will of Mrs. Parkman cover the debts contracted by her husband ?” Judge Sease found that the will covered the debts contracted by the husband, Parkman. From this decree of his Honor the appellant appeals, and alleges error and asks *120 reversal. The' appeal raises the sole question: Was his Honor in error in so holding? We think his Honor was in error. 1 The second and third clauses of the will are consistent. Under the will he could use and énjoy it or sell it. Under the will he was given the use of the property with power to dispose of it during his life. Failure to sell- or dispose of it while he was alive and exercise the power to do so during his life could not defeat the provisions of the will as to- where it would go after his death. Then the property went under the terms of the will to the party named therein, and is in no way liable for the debts contracted by the husband in his lifetime. His failure to use the power conferred upon him by the will during his lifetime cannot be extended to pay his debts out of the estate after his death. 2 The record shows, however, that W. L. Parkman sold some of the real estate in his lifetime, and that the proceeds of the sale are in the hands of defendant. Upon the sale the proceeds became the property of W. U. Parkman and belonged to his estate. Therefore, the defendant must account to his administrator therefor. Judgment reversed, and case remanded for further proceedings not inconsistent -with the views herein announced. Messrs. Justices Hydrick, Fraser and Gage concur in the opinion of the Court.