Cohn v. McClintock

Cook, J., delivered the opinion of the court. This case was submitted to the circuit judge, a jury being waived, upon an agreed statement of facts, substantially as follows: (1) That M. Cohn, of Belzoni, Washington county, Mississippi, died on the 3d of December, 1910, leaving a last will and testament, a copy of which is made a part of said agreed statement of facts, and that, at the time of his death, he was indebted to the appellee in this case in the sum of one hundred and twenty-two dollars and eighteen cents, for insurance premiums. (2) That the appellants duly qualified as executors of the last will and testament of said M. Cohn, deceased, and letters testamentary were issued to them by the chancery court of Washington county, Mississippi. (3) That thereafter said executors made publication for creditors in accordance with the provisions of section 2103 of the Code of 1906, to register and probate their claims against said estate within one year, notifying them that a failure to so register and probate said claims — 836 — would bar them; that more than one year had elapsed since the first publication of the said notice; that proof of said publication was duly filed; and that the claim of the appellee was never probated, and that more than one year has expired sincé the first and since the last publication of the said notice to creditors. (4) The defendants deny any liability on the account sued on, because of the failure to probate and register the same within one year, as required by section 2107 of the Code of 1906. The appellee claims that it was unnecessary to probate and register the claim, as, he contends, the last will and testament of M. Cohn, deceased, created an express trust for the payment of his debts, and therefore it was unnecessary to probate and register the claim as required by said section 2107 of the Code of 1906. Suit was brought -by the appellee on said claim before a justice of the peace, who rendered judgment in favor of the appellants, from which judgment the appellee prosecuted an appeal to the circuit court, in which court, as stated, the said cause was submitted to the circuit judge, a jury being waived, upon the foregoing statement of facts, and the said circuit judge held that the will of M. Cohn, deceased, created an express trust for the payment of his debts, and that therefore the appellants were liable to the appellee for the payment of this debt, and said judge rendered a judgment against them accordingly, from which judgment this appeal is prosecuted. Omitting the formal parts, the will in question reads this way: “As to my worldly estate, and all of the property real, personal or mixed, of which I shall die seised and possessed, or to which I shall be entitled at the time of my death, I devise, bequeath and dispose thereof in the manner following, to wit: “1. My will is that all my just debts and Tuneral expenses, by my executors hereinafter named, to be paid — 837 — out of my estate as soon after my decease as shall by them he found to he convenient. “2. I give, devise and bequeath to my four children, Abe Cohn, Jake Cohn, Mrs. Freda Davidow and Mrs. Pauline Castleman, share and share alike, a policy of life insurance in the order of Knights of Honor amounting to two thousand dollars, and a policy of life insurance in the order of Knights of Pythias amounting to three thous and dolía rs, ’ ’ “4. I give, devise and bequeath to my beloved wife, Hannah Cohn, so long as she shall remain unmarried, all of lot number twenty-one (21) of M. Cohn’s subdivision of lots 129, 130 and 134 of the Briley addition to the town of Belzoni, Mississippi, according to map, or plat, of said M. Cohn’s subdivision in May Book Number 2, on page 9, in the office of the chancery clerk of said county, said property fronting one hundred and sixty-four feet on Church street, and running west to: wards Hayden street a distance of two hundred and forty feet, being the property on which is now situated our residence; said gift to my said wife is not made to her in fee simple, hut for so long as she shall remain unmarried; upon her marriage, and upon her death before marriage, said legacy shall cease and determine as to her, and same shall vest in my granddaughter, Esther Da-vidow, if she he then living; and if she he then not living, said legacy shall vest in my granddaughter, Henrietta Davidow, and Sylvia Davidow as tenants in common, if they both he then living, and if either of them he not then living, then to the survivor of them; and if both of them he not living, then said legacy shall vest in the brothers and sisters of them as tenants in common. I also give, devise and bequeath to my said wife, Hannah Cohn, all of my household and kitchen furniture, and said gift of household and kitchen furniture to my said wife is made to her in fee simple. “5. I give, devise and bequeath to my said wife, Hannah Cohn, and her children by me, share and share alike, — 838 — all of the stocks, bonds and other securities, and all of the personal property not otherwise disposed of, of which I may die seised and possessed. “6. 1 give, devise and bequeath to my sons, Jake Cohn and Abe Cohn, and to their successor or successors in office, as hereinafter provided, all the rest and residue of my property, real, personal and mixed, in trust, nevertheless to be manag’ed, controlled, sold and disposed of as follows: “A. If the ‘Fisk’ or ‘Belzoni’ plantation in Washington county, Mississipi, adjoining the town of Belzoni, and now owned by Morris Levy and myself as tenants in common, shall not have been partitioned at the time of my death then it is my will that said trustees cause said property to be partitioned as soon after my death as it is practicable to do so; and the same shall be kept together for ten years, and planted, farmed, leased or rented as said trustees may deem most advantageous, except such1 portion thereof as may be laid off into town lots, and such other parts thereof as may be sold by said trustees as hereinafter provided. “B. Said trustees are authorized and’empowered to dedicate from time to time, as they may thing advisable, from the land comprising said ‘Fisk’ or ‘Belzoni’ plantation, various additions to said town of Belzoni, and cause to be prepared the necessary maps and plats thereof, and they shall sell said lots from time to time, for cash or on credit; and they are further authorized and empowered to sell from said plantation small tracts of land for cash or on credit, where such sales are in their opinion advantageous and for the best interest of my said estate. “C. Said trustees are also authorized and empowered to sell any and all real estate owned by me at the time of my death (not hereinbefore devised) for cash or on credit, and the same shall be held in trust and paid over to my children and my wife as hereinafter directed. The — 839 — property to be sold not to include the ‘Fisk’ or ‘Belzoni’ plantation as provided in item A above. “D. Full power and authority is hereby vested in said trustees to execute any and all deeds of conveyance to my real property sold by them, and any other instruments that may be necessary in the manageemnt and control of my said estate, and all the property, real and personal, sold by them as trustees as aforesaid, shall be released and discharged from any express or implied charge against the same by my children and wife, and the purchasers thereof shall take a good and perfect title to the property sold by said trustees; and no purchaser shall be bound to see to the application of the purchase money, or other consideration paid therefor. “E. I give, and bequeath from said trust estate one-sixth each to my five children, Abe Cohn, Jake Cohn, Freda Davidow, Mrs. Pauline Castleman and Maurice Cohn, and my said wife Hannah Cohn. “F. After the payment of my debts by my executors, who are also trustees herein, a one-sixth interest, each in my said estate shall be paid over to my children and my said wife from the cash then on hand and as soon as the sale of any property is consummated. “Gr. At the end of said ten years, said ‘Fisk’ or ‘Bel-zoni’ plantation then remaining shall be divided between my said children and my said wife in the proportion of one-sixth, each to my said children and my said wife. “7. I appoint my sons, Abe Cohn, and Jake Cohn, trustees herein, executors of this my last will and testament, and request that the court will require no bond of them as such; and should either of them die before the completion of the trust reposed in them, then I request that the survivor of them then be appointed executor herein; and should he die before the completion of this trust, then I request that the court appoint an executor to carry out the provisions of this will and trust. ’ ’ — 840 — It will be noted that the only reference made by the testator in his will to the payment of debts is contained in two clauses, which are as follows: (1) “My will is that all my just debts and funeral expenses by my executors hereinatfer named, to be paid out of my estate as soon after my death as shall by them be found convenient.” (2) “After payment of my debts by my executors, who are also trustees herein, a one-sixth interest each of my said estate shall be paid over to my said children from the cash on hand, and as soon as the sale of any property is consummated. ’ ’ The first clause is the usual stock phrase employed by writers of wills, and it cannot be contended that the testator meant anything more than to direct his executors to pay his debts, and this is what they were required to do by the law. The second clause merely directs the payment of debts in preference to the distribution of the estate, and this, too, was the duty of the executors under the law. The case mainly relied on by appellees to uphold the judgment of the court is Gordon v. McDougall, 84 Miss. 715, 37 So. 298, 5 L. R. A. (N. S.) 355. The will in that case is quite different from the will in this case, and the court was of the opinion that the will in that case, taken as a whole, evinced a purpose on the part of the testator to create an express trust for the payment of debts. This will seems to be practically the same as the will construed in Cudahy Packing Co. v. Miller, 60 So. 574. The language employed by this court in the above case is peculiarly applicable to this case. There is no substantial difference in the will in the Cudahy case and the will in the instant case. Reversed and dismissed.