Cudahy Packing Co. v. Miller's Estate

Smith, C. J., delivered the opinion of the court. The affidavit attached to the claim sought to be probated fails to comply with section 2106 of the Code in several particulars, among which is that it contains no allegation that “it” — the claim sought to be probated —“is not usurious.” But it is said by counsel that it appears from an inspection of the written statement of the claim that it is not usurious. In this we think counsel are in error; but whether or not it so appears is immaterial. This fact must appear from a specific allegation to that effect, and not from a construction of the language in which the claim sought to be probated is couched. Cheairs’ Ex’rs v. Cheairs’ Adm’rs, 81 Miss. 663, 33 So. 414. But, say counsel for appellant, the will of the decedent “creates an express trust for the payment of debts,” and therefore the 'defects in this affidavit are immaterial for the reason that where such a trust is created it is unnecessary to probate claims against the estate. In this counsel are in error. The will creates no express trust for the payment of debts; nor does it do so by necessary implication. The provisions of the will to which our attention is called in this connection are: “It is my will that at my death that all of my just debts, including burial-expenses, doctor’s bills during my last sickness, [446] and the debts that may be incurred by my executors in erecting a suitable monument to my grave, shall first be paid, and that the same be paid out of moneys I may die seised and possessed of, and if there be not sufficient moneys on hand, then out of the proceeds of any personal property other than money I may die seised and possessed of, or if necessary my lands that I die seised and possessed of, be rented by my executors, and the debts paid in that way. At all events I desire that none of my lands be sold to pay debts if it be possible to prevent such. . . . I will that they carry out faithfully and promptly each and every provision of this my last will and testament, and further it is my request that they be not required to file an inventory or have an appraisement made of my estate, or any report to the court, save a final report showing that all of my debts have been paid and my devises and bequests have been promptly and faithfully carried out, as herein directed.” By operation of law, all of the property of the testator owned by him at the time of his death was charged with the payment of his debts, and his executors were likewise charged with the duty of applying it to the payment thereof. What the testator manifestly intended by the first item of his will herein set forth was simply to direct the manner in which his executors should discharge this duty which the law imposed upon them. Since all of a decedent’s property is charged by law with the payment of his debts, a trust to that effect, which would render inoperative probably several provisions of the statute enacted for the safeguarding of estates, will not be inferred from language in a will directing the manner in which this duty shall be performed, unless such clearly appears to have been the testator’s intention. Steele v. Steele, 64 Ala. 459, 38 Am. Rep. 15; Abbay v. Hill, 64 Miss. 351, 1 So. 484; Gwin v. Nettles, 18 So. 798; Gordon v. McDougal, 84 Miss. 715, 37 So. 298, 5 L. R. A. (N. S.) 355. Affirmed.