Abney v. Abney

SOMERVILLE, J. The deed of settlement between Mary A. Abney and her husband cannot be construed as a conveyance of a five-eighths interest in his homestead to his five children by a former marriage. On the contrary, after granting a three-eighths interest in the property to her for life, with remainder to her three children, [218] lie in terms retained the title to the residue in himself, with provision that after her death, if she survived him, such residue (“his five-eighths interest”) should descend to said five children, free from any claim or interest of her three children. Hence the chancellor correctly ruled that the mortgage given on the homestead by the husband and wife jointly was a valid incumbrance on his undivided interest therein, and capable of enforcement against the claims of his heirs. Complainant, however, as widow, is the owner of a life estate in the homestead. As such it was her duty to keep down the interest on this mortgage debt during the continuance of her estate. — 16 Cyc. 604, 12. She was under no obligation to pay off the principal of the debt, but, having done so, she is entitled to call upon the reversioners for contribution, and has a lien on the property for the amount due her. — 16 Cyc. 635, 636. In such a case the settled rule of apportionment is that the life tenant shall “pay such a sum as would equal the present value of the amount of interest he would probably have paid during his life, if the mortgage had continued so long in existence, estimating his probable length of life by the ordinary tables of mortality. The balance, after deducting this sum, would be the amount due from the reversioner.” — Tiedeman on Real Property, § 66, and cases cited. The relation of the life tenant to reversioners or remaindermen is that of quasi trustee. If he purchases an outstanding title or incumbrance, it will be held-to be for the joint benefit of himself and the reversioners or remaindermen. He cannot hold such title or incumbrance for his exclusive benefit if they are willing to contribute their share of the cost of acquisition, and do so within a reasonable time. — 16 Cyc. 617, 2 and cases [219] cited; Allen v. De Groodt, 98 Mo. 159, 11 S. W. 240, 14 Am. St. Rep. 626; Cockrill v. Hutchinson, 135 Mo. 67, 36 S. W. 375, 58 Am. St. Rep. 564; Whitney v. Salter, 36 Minn. 103, 30 N. W. 755, 1 Am. St. Rep. 656. These principles are very clearly applicable to the situation disclosed by the evidence in this case. It was, however, the duty of respondents, as reversioners, to propound their claim to the benefit of complainant’s purchase, and by appropriate averment to offer to refund to her their proportionate share of the cost. By suffering a decree for the foreclosure of the mortgage to go against them without aserting their rights in this regard, they have effectually waived and lost them. But the interest accruing on the mortgage debt after the death of B. D. Abney was the debt of complainant which she was bound to pay, and should have been deducted from the amount for which foreclosure was decreed. In this respect and to this extent the accounting and decree were erroneous. One purpose of the cross-bill was the establishment of cross-complainants’ title to a reversionary five-eighths interest in the homestead property to the exclusion of the claims of the three children of Mary A. Abney. These three children were made parties defendant to the original bill. One of them, a minor duly represented, answered that bill, and a decree pro confesso was taken against the other two. They were also made parties defendant to the cross-bill, but the record does not show that any of them made answer, or that decrees pro confesso were taken against them. So, as to these particular cross-respondents, the cross-bill was not at issue, and a decree quieting title under the prayer of the cross-bill could not have been rendered as to them. The covenants in the deed of settlement between B. D. and Mary A.'Abney, while binding on themselves, [220] could, not, without acceptance by the remaindermen of the estate therein granted, be binding on them. Hence the stipulation that a three-eighths interest in remainder should presently vest in the three younger children, coupled with the covenant that they should have no claim as heirs to the remaining five-eighths, which should descend to the five older children exclusively, did not ipso facto operate as such an exclusion. The scope of this issue,, therefore, as presented by the cross-bill, would have included the fact, vel non, of a previous acceptance of the deed, or their present election by. answer to accept or reject it, and so to take their separated share of the homestead or to share generally in the whole. So far as the infant cross-respondent is concerned, his election must, of course, have been made for him by the court. — Andrews, Adm’r, v. Hall, 15 Ala. 85. In the state of the pleadings and submission,-as shown by the record, the chancellor did not err in failing to decree upon this phase of the cross-bill. Appellants complain that on final decree complainant was not charged with the rental value of 80 acres of land belonging to her husband’s estate and held in possession or enjoyment by her since his death. It is sufficient to say that the cross-bill sought no accounting in this particular, no evidence on the subject was offered by appellants, and the matter was not within the scope of the original bill. The ascertainment of the rental value of the land by the register, on motion of cross-complainants, was not within the terms or objects of the reference, and the register’s supplemental report, being unauthorized, was properly disregarded. We find no error in the actions of the chancery court other than the single one above pointed out. The final decree will be modified in that particular, and the cause will be remanded for correction in the lower court. The [221] costs of this appeal will be equally apportioned between appellants and appellees. Affirmed in part, reversed in part, and remanded. All tlie Justices concur, except Dowdell, C. J., not sitting.