Thompson v. Bank of Tuskegee

ANDERSON, C. J. (1) The general rule is that pecuniary legacies are not chargeable upon lands unless the intention to so charge them is manifested by express words or by fair implication. — Taylor v. Harwell, 65 Ala. 1; Newsom v. Thornton, 82 Ala. 402, 8 South. 261, 60 Am. Rep. 743. Legacies may be charged upon real estate without express direction, if the intention of the testator so to do can be fairly gathered from all the provisions of the will; and extraneous circumstances may be considered in aid of the terms of the will. — Hoyt v. Hoyt, 85 N. Y. 142; Jackson v. Bittinger, 18 Johns. (N. Y.) 368; Gorman v. McDonnell, 127 Ala. 549, 28 South. 964. While it is true that ordinarily lands are not chargeable with the payment of general pecuniary legacies, still this rule is not one of universal application, and is not so unbending as it will not yield to another rule of equal dignity and force which allows a testator to blend or mix his realty and personalty in the creation of a source or fund for the payment of his general pecuniary legacies. — Carter v. Balfour, 19 Ala. 814; Maybury v. Grady, 67 Ala. 147. The legacy to this complainant consisted of an annuity to be paid during her life, and while the payment of same was not made an express charge upon the testator’s land, no provision was made for the [72] payment of same out of the personalty. It was just provided for generally, and the testator not only contemplated a blending of the personalty and real estate, in so far as this annuity was concerned, but specifically required that his personalty, that is, life insurance, etc., be invested in real estate after the payment of his debts. The bill shows that there was little or no personal property left after the payment of debts, and it was evident that the testator did not intend to provide his mother with an annuity and at the same time confine its payment from a source which he knew-would be inadequate to meet same. It may be that the holdings in the Tuskegee Land Company should have been treated as personalty by the executors instead of as realty, but there is nothing to indicate that the testator intended that the annuity provided for his mother should be paid. entirely from the stock held by him in said land company. On the other hand, if the testator supposed that his holdings in said land company were to be regarded as land instead of personal property, this is a strong circumstance tending to show that the annuity should be a charge upon his estate generally, including the land, as he was bound to know that it was a continuous charge and that his personalty exclusive of the stock in the land company was greatly inadequate to meet said annuity. We therefore hold that the complainant’s annuity was a charge and lien upon all property owned by the testator C. W. Thompson at the time of his death, 'subject to the payment of his debts and the cash legacies provided by said will. This is not only true, but this seems to be the construction placed upon same by the parties in the settlement of the chancery case between this complainant and the children of the testator, wherein the annuity was reduced from $1,800 to $1,200. We therefore hold that the chancery court erred in holding that the bill was without equity, upon the idea that there could be no charge upon the land without averment and proof that there was not sufficient personal property to provide for the payment of the annuity of this complainant. (2) We are of the opinion, however, that the complainant has no lien on the lands which stood in the name of the corporation land company. It may be true that the testator owned practically all stock in said company, but he and it were separate entities, and the will operated to dispose of the testator’s stock, instead of the property of the corporation, and those of the respondents who purchased lands belonging to the land company [73] got the same free from any lien or claim that the complainant may have had upon the estate of Chas. W. Thompson for her annuity. Moreover, if this was not the case, those of the respondents who purchased any of the land at mortgage sale under mortgage given by the land company acquired the protection accorded the mortgagee, regardless of any notice that may have been given at the sale as to the complainant’s claim of a lien upon same. (3) The agreement executed by the complainant op the 16th day of- September, 1908, did not operate to establish or enlarge a lien, as it was not signed by E. W. Thompson, but was intended as a mere release or waiver of any claim or lien that she had to any property received by C. W. Thompson, and that she was to look solely to the property then held by E. W. Thompson under the division with his brother, but which éxeluded lands in the name of the land company. In other words, this agreement operated to narrow, rather than extend, the complainant’s lien so as to confine it to so much of the property then acquired by E. W. Thompson upon the division with his brother as was previously subject to hér annuity and to release her claim as to all other property. Neither of the Thompsons (sons) was personally liable for this annuity, as it was a mere charge upon the. property left by the testator, and we do not think that the instrument of September 16, 1908, was intended to release the lien upon the property and to look only to E. W. Thompson personally for the payment of the annuity, as the instrument negatives all idea of a release of her lien upon the property allotted to E. W. Thompson. We therefore hold that all property acquired by E. W. Thompson under the division with his brother and the title to which stood in the name of the testator at the time of his death is subject to the complainant’s claim, and the bill is not wanting- in equity in so far as it seeks to subject it to the payment of the complainant’s annuity. The bill, however, is without equity in so far as it seeks to fasten a lien upon any lands held by those respondents that belonged to the land company at the time of the testator’s death, or which they may have purchased from C. W. Thompson, Jr., or E. W. Thompson prior to, September 16, 1908, and as to these, their demurrer to the bill was properly sustained. The bill does contain equity, however, as to those respondents who hold the property under conveyances from E. W. Thompson subsequent to September 16, 1908, [74] and the title to which stood in the name of the testator at the time of his death as distinguished from the land company. Affirmed in part, and reversed and remanded, with no cost to respondents of the first class, and cost of this appeal- to be equally divided between the appellant, one half, and the other half between the respondents of the second class. Affirmed in part and reversed and remanded. Mayfield, Somerville, and Thomas, JJ., concur.