Taylor v. Harwell

BRICKELL, C. 3". — -The first proposition presented and discussed by the counsel for the appellants, which we propose to consider, is, that the legacy to Fanny Taylor is charged, not only on the profits of the plantation, but on the corpus, or principal of the property, real and personal, devised and bequeathed in trust for Mary and William Charles, if, as has proved to be the case, the annual profits, after supporting and maintaining Mary and William, would not, when she attained twenty-one years of age, the time when the legacy was payable, yield a sum sufficient for its payment. Pc is certainly true, as is insisted, that an unqualified devise of the rents and profits of lands, or an absolute gift of the profits or income of a chattel, is the equivalent of a devise of the lands, or of a gift of the chattel, and will pass the legal, as well as the beneficial interest. — 2 Jarman on Wills, 380, marg.,534. But when, as in the present case, there is a mere power, or direction, to raise money for the payment of debts, or of legacies, out of the rents and profits of lands, whether it will charge the lands, or pass any power to raise it by a sale of them, is a question of much perplexity. It is to be solved, as are all questions arising on the construction of wills, by ascertaining the intention of the testator, which is the governing principle, or, as it is sometimes expressed, “the law” of the instrument. The rule is general, that pecuniary legacies are not chargeable on lands, unless the intention to charge is manifested by express words, or by fair implication.— Wright v. Dean, 10 Wheat. 204; Lupton v. Lupton, 2 Johns. Ch. 623; Parker v. Fearnely, 2 Sim. & Stu. 592; Lewis v. Darling, 16 Howard, 1. When the direction or power is to raise portions for children, or a fund for the payment of debts, the courts have inclined to avoid a construction which would leave the children unprovided for, or -the debts unpaid ; a result not consonant with the natural affections of the testator, or with the sense of justice which, it is fairly presumed, must be keenly felt, when solemnly declaring a disposition of property to take effect after death. — 2 .Perry on Trusts, § § 677-682$; 2 Jarman Wills, 380-87, marg. 534-542 ; 2 Story’s Eq. Í064-65. Hill, on Trustees, 532. But, as was said by Lord Eldon, in Codrington v. Foley, 6 Vesey, 380, the court ought not to be — 11 — eager to lay hold of circumstances, but to hold an equal mind, looking to the particular framing of the trust, and tbe intention of the instrument. In the construction of wills, as in the construction of other instruments, the courts may and ought tó look to the circumstances surrounding the testator when tbe will was made, to the state of his property, and to the relations existing between him and the recipients of his generosity; and the construction cannot be varied by events subsequent to the execution. It is from the death of the testator the will speaks — it must be construed as it would have been the moment of death, in ¡view of then existing circumstances, without regard to inconvenient consequences resulting from subsequent events, which the testator did ■ not foresee nor anticipate. — Jackson v. Bellinger, 18 Johns. 381. The intention of the testator to create a trust for the payment of the legacy to Fanny Taylor is clear, and cannot be doubted. Nor can it be doubted that he intended the payment of the legacy should be made from the profits of the plantation. When the will was made, and at the death of the testator, it was not only possible, or probable, but, so far as certainty could be asserted in reference to a matter of the kind, it was certain, the profits of the plantation would yield, not only a support and maintenance to Mary and William Charles, but a sum sufficient for the payment of the legacy, and funds for accumulation and investment under the trusts for ¿these purposes, before Fanny, who, at the death of the testator, was not more than eight years of age, would reach majority, when the legacy was payable. The disappointment results from the calamities of war, and the events of political revolution — the destruction of the personal property, which was indispensable to ;.the derivation of the profits the testator had derived, and which he contemplated would continue to be yielded from the cultivation of the plantation. The term plantation, as it is used in the devise, comprehended not only the lands, but the slaves and other personal property on the lands, employed and useful in their cultivation. Such a comprehensive use of- the term was very common when the will was executed, and at the death of the testator, in the community in which he lived aud died ; and the term profits, when applied to the cultivation of a plantation, had then a general, popular signification. It was never confounded with rents, or with proceeds; it denoted the annual gain, or income, from the sale of products, after a deduction of the expenses of cultivation. There was no deduction because of the value of the labor, for the labor was the property of the owner, as was the land cultivated. It is — 12 — in this sense, it is evident, the word was employed in the trust for the payment of the legacy to Fanny. From the annual gain, or income, deriyed from a sale of the products of the plantation, it was contemplated and intended by the testator, a fund would be accumulated for the payment of the legacy, before she reached twenty-one years of age. The trustee was directed to allow Mary and William, out of the profits of the plantation, annually, such sums of money as in his discretion were right, according to their condition in life, share and share alike, for their support and maintenance ; and the balance of such profits, if any, he was to invest. It seems clear, therefore, that the term profits was employed in its then ordinary and popular signification, as denoting the annual gain or income derived from a sale of the products, deducting the expenses of cultivation. Such is its meaning in the trust for the support and maintenance of Mary and William, who, it is apparent, were the primary objects of the testator’s bounty; and there is nothing in the context which would justify its deflection from that meaning in the trust in favor of Fanny. The trust, in its entirety, is to raise the money to satisfy a legacy to one having no relation to the testator — with no claims upon his natural affections, and for whom he was under no duty of providing. It is not a trust to raise a portion for a child, who would be unprovided for if the corpus of the estate is not charged with its payment. It is to be raised out of the profits of the plantation, and is not a charge upon the plantation. — 2 Roper Leg. 148; Wilson v. Halliley, 1 Russ. & Mylne, 590; Heneage v. Lord Andrew, 3 You. & Jer. 360. It is clear, too, that the testator intended it should be raised from the profits accruing before Fanny became twenty-one years of age, and not from profits subsequently accruing. An analysis of the disposition shows plainly its true character. The whole legal estate resides in the trustee, for the benefit of Mary and William Charles primarily — it is for them the corpus is to be preserved, and the surplus of profits, if any there should be, accumulated, and converted into principal. There is a trust of the profits declared, first, for the support and maintenance of Mary and William; second, to accumulate in the period intervening after the death of the testator, and before Fanny Taylor became twenty-one years of age, five thousand dollars for the payment of the legacy to her. There is, in other words, a gift, not of five thousand dollars, referring to these profits as a fund for its payment, but a specific gift of five thousand dollars of the profits accumulating within the particular period, there being deducted from such profits, annually, a sum sufficient for the — 13 — comfortable support and maintenance of Mary and William. A failure of profits disappoints the gift — the thing given does not exist, and there can be no compensation made to Fanny from estates or property otherwise devised or bequeathed by the testator. It is of the nature of all such specific gifts, that they fail by failure of the fund of which they are a part, or of the source from which they are to be derived. — 1 Koper Leg. 195. The second proposition pressed in support of the assignment of errors is, that the interest of William in the profits, or in the corpus of the estate, cannot be subjected to the satisfaction of his debts. It is said the profits cannot be reached, because the amount which was allowable to him depended upon the discretion of the trustee, which cannot be controlled; and the corpus, or principal, cannot be reached without infringing the clause of the gift declaring that, in “no event, is the principal of the bequest to be interfered with, by any one, or be parted with, or charged, except by the express assent of said Thomas Taylor, or by the express direction of the Chancery Court having jurisdiction for that purpose, in a case regularly brought before it.” We do not deem it necessary to consider or discuss the proposition, at length. The law in reference to it is settled conclusively by former decisions of this court, from which we cannot depart. There cannot be a legal or equitable right in or to property, or to its rents, income, or profits, not so blended with the rights of others as to be incapable of separation and identification, that may not, by some appropriate remedy, in law or in equity, according to the nature of the ease, be condemned to the satisfaction of debts. It is violative of public policy, and in fraud of the rights of creditors, to create a well-defined beneficial interest, legal or equitable, in property, real or personal, or in its rents, income, or profits, which can be enjoyed by an insolvent debtor, free from liability for the payment of debts. Laws have been enacted, constitutional provisions have been ordained, by which the roof that shelters, and such personal property as may be necessary to save the unfortunate-debtor, or his family, from being reduced to absolute want, is relieved from liability to debts subsequently contracted. The policy of such laws the courts have upheld and enforced. They work no fraud or injury; for of them the creditor has knowledge when his debt is contracted, and is informed that the property exempt is withdrawn from liability to its payment. But, as to property not thus exempt, the policy of the law is that it shall not be enjoyed while creditors are unpaid. It is not of importance that it is acquired subsequent to the contracting — 14 — of the debts. Future acquisitions, whether the fruit of the debtor’s thrift, energy, industry, skill and intelligence, or descending to him by operation of law, or gifts proceeding from the mere.generosity of others, when he is clothed with ownership, are a source from which creditors may well anticipate satisfaction of their debts. In Rugely v. Robinson, 10 Ala. 731, it was said by Judge Ormond: “ I understand the law to be, that no one can have a legal or equitable right to property, which is not subject to the payment of his debts, either at law, or by a proceeding in equity, according to the nature of the case.” And in the same case, it was said by Judge Goldthwaite : “I hold it to be entirely clear, that whatever a debtor can himself claim to .enjoy as a general use, benefit or interest, in property capable of separation and division, may be reached by his creditors.” It was further said by Judge Ormond : “-In my opinion, ingenuity cannot devise a plan, by which one can have the use and benefit of property (with the exception of a joint use not capable of severance), in defiance of his creditors. No matter what guise it may assume, whether it is in the shape of a maintenance in the discretion of trustees, or whether, as in this case, it is openly avowed to be for his use and benefit, in every conceivable case, where he takes a beneficial interest, it maybe subjected to the payment of his debts.” This doctrine has been reaffirmed, after careful consideration, in two subsequent cases — Robertson v. Johnston, 36 Ala. 197; Smith v. Moore, 37 Ala. 329. An absolute, unqualified discretion to withhold, or to appropriate rents, income, or profits, to the support of a-beneficiary, it may be, can be conferred on a trustee ; and it may be that, when it is conferred, neither the cestui que trust, nor a creditor asserting his [rights, can invoke the interference of a court of equity to direct or control it. In-reference to such a case, there would be, perhaps, a qualification of the rule so broadly stated by Judge Ormond. We do not enter on that question; for, in the present case, the-discretion conferred on the trustee cannot be regarded as of that character. Though it was contemplated he would be careful and prudent in expending the profits in the maintenance of Mary and William, upon them separately was conferred a clear, substantial right to support and maintenance, which he could not disappoint; and if he had been refractory in the exercise of his discretion, a court of equity would have intervened for their relief. It is apparent, too, that the interests of- Mary and William in the profits are not blended. They do not take jointly, but in common — share and share alike, in the words of the devise — thus distinguish — 15 — ing the interests of each, instead of blending them. Now, it cannot be debatable, that an interest of this character, which a debtor can successfully assert and enforce in his own name, is subject to the payment of his debts. The undivided equitable estate of William, it is, if possible, freer from doubt, is liable to the claims of creditors. We shall not stop to inquire, whether, by the event of Fanny Taylor and of Mary and William having attained majority, the estate of the trustee has not expired, and Mary and William are not now, by operation of¡the|statute (Code of 1876, §218$), clothed with the legal, as well as the equitable estate. The duration of the legal estate is measured by the character, necessities, and exigencies of the trusts declared; and it will be construed to continue only so long, and to be of the character necessary for him to discharge them. The trusts were ail declared in view of the minority and consequent disabilities of the beneficiaries, well adapted for the preservation of the estate and their protection while they were not sui juris; but it is difficult to suppose it was intended the powers of the. trustee, or his estate, should continue after the necessity for them ceased. Be this as it may, the beneficial or equitable estate had all the incidents, properties, characteristics and consequences, of a corresponding legal estate in fee simple. It was descendible, devisable, and alienable. If either Mary or Charles had died intestate, it would, as a pure fee simple, at law, have descended to heirs ; or, if attaining majority either had devised it, the devisee would have succeeded to it. It could have been aliened, in any proper mode of conveyance, by either, after attaining majority. Having these incidents, properties and qualities, it results that, by operation of law, it is liable in invitum, like any other property, to the payment of debts. — 2 Story’s Eq. § 974. If the clause of the devise in reference to charging or parting with it, was intended to operate after the devisees became of age, and is in restraint of the power of the donee to alienate, it is repugnant to the gift, and is void. The only remaining question relates to the amendment of the decree, by inserting in it by proper description a part of the lands omitted originally by inadvertence. It may be admitted that it is not the office of an amendment nunc pro tunc, to cure the imperfection or impropriety of a judgment or decree as actually rendered; but to supply omissions, or to correct errors in its entry of record. It cannot cure the inaction, or the erroneous action of the court; and it presupposes that the judgment, as it is proposed it shall be entered, was the judgment really ipndered. The error to be cured is the inadvertence or omission in its entry. When we look to; — 16 — the record, all the proceedings prior to the rendition of the decree, we find that the controversy was whether the interest or estate of William in the whole of the lands devised should be subjected to the judgments of the complainants. In the pleadings the lands are described according to the government surveys. There was no pretense that one part of the lands were or might be liable, while another part, on some peculiar ground, was free from a like liability. When we look to the decree rendered, there is & plain purpose to determine the whole controversy — not to adjudicate as to a part of the lands, or, while subjecting a part, to free another from liability. It is plain, too, that the judicial mind passed upon, and pronounced sentence that the share of William in the profits, and his undivided half interest in the lands described in the pleadings, should be condemned and appropriated to the payment of his creditors who were parties. It is in the order to the register to make sale, that the chancellor proceeds to describe the lands by their government surveys, as they were described in the pleadings, and by inadvertence omits a part. A judge, as well as a clerk or register, may fall into errors of this character; and it would be a reproach to justice, if they could not be corrected when discovered, from the clear and conclusive evidence the record furnishes. It is not the entry of a judgment never rendered, but the entry of the judgment as rendered, by inadvertence not correctly entered when rendered. We find no error in the record, and the decree is affirmed. Stone, J., not sitting.