Summary
Appeal and cross-appeal from the Chancery Court of Monroe County.
Hon. Laeayettb Haughton, Chancellor.
This litigation ivas begun by the proper representative of one of the legatees, William Raney, under the will of H. W. Allen, who died in 1855. Martha A. E. Allen, the wife of the testator, to whom he had left the estate for life, married J. D. Tatum, and then died. Tatum had in the meantime become administrator de bonis non, cum testamento annexo, of H. W. Allen’s estate, and on appeal by him to the Supreme Court a decree rendered in the case was reversed. See Tatum v. McLellan, 50 Miss. 1. It will be seen by reference to that opinion, that the first question there decided is, on a construction of the fourth clause of the will as to the estate which Mrs. Martha A. E. Allen took thereunder, that she took a life-estate, with power to appoint who shotddf enjoy one-half the remainder, but that her surviving husband, Tatum, not being such appointee, has no interest in such half; and the other question there decided is, that Tatum should be permitted, as the legatees from whom he purchased do not object, to hold the legacies purchased by him, so that he may retain the respective amounts in full, or pro rata with other legatees, out of the assets. The case was remanded, 'with instructions. The decree from which that appeal was taken charged Tatum ten per cent interest on the William Raney legacy ; and as Raney’s representative, McLellan, alone appealed, and Tatum did not, that error was not assigned, and the opinion does not notice it.
On the return of the case to the- Chancery Court an account was stated, and that account is the subject of the present appeal.
The commissioner’s report is as follows : —
James D. Tatum,
To estate of Henry W. Allen, deceased, 1866. Dk.
Jan. 1st. To value of personal property of said estate on hand at the death of Martha A. E. Tatum... $1,400.00
Int. on same from Jan. 1, 1866, to Jan. 1, 1877 1,540.00
Value of 400 bushels of corn on hand at death of Mrs. Martha A. E. Allen, and int. 660.00
Value of 22 bales of cotton on hand at death of Mrs. Martha A. E. Allen. 2,200.00
Int. on same from Jan. 1,1866, to Jan. 1, 1877.. 2,420.00
Rent of the plantation for each year from 1866 to 1876, inclusive, as follows, —the rent for 1866 being $300, and that for the subsequent years $600 and $500, and on these rents ten per cent per annum interest is charged up to January 1, 1877, and this concludes the debit side of the account.
Total.$16,705.00
By exceptions sustained. 5,280.00
Total amount of debits, as restated.$11,425.00
Ge:
By improvements on plantation by James D. Tatum, since
1865 . $3,000.00
Int. on same to Jan. 1, 1877.i. 3,300.00
The remainder of the credit side of the account was taxes on the land, and interest thereon. Total. $7,221.37
By exceptions sustained. 6,300.00
Total amount of credits, as restated. $ 921.37
Amount debt, as restated.$11,425.00
credits, as restated. 921.37
Balance due estate from Tatum.$10,503.63
At the time of Mrs. Martha A. E. Tatum’s death, which occurred in 1865, the buildings and fences on the plantation were out of repair, and cabins had to be put up for tenants; otherwise, the place would have been uninhabitable, and its annual rental worth little or nothing. James D. Tatum therefore expended some $3,000 in repairing and keeping repaired the place, which was constantly subject to damage from overflow. A considerable amount of personal property— horses, cattle, and farming implements, such as had survived the war — being on the place at that time, James D. Tatum took possession thereof, and proceeded to cultivate the plantation as repaired. The will of Henry W. Allen directed that on the death of Mrs. Martha A. E. Tatum all the property should be sold and certain legacies paid-; so James D. Tatum bought up from the respective legatees all these legacies, except the one on which this suit is founded, Twenty-two bales of cotton and four hundred bushels of corn, which were on the place at the time of Mrs. Martha A. E. Tatum’s death, were taken by James D. Tatum, sold, and the proceeds applied to his own uses in conducting the plantation, and, together with the succeeding crops, in paying-taxes and other necessary incidental expenses. The twenty-two bales of cotton and four hundred bushels of corn were produced from the property during the term of Mrs. Martha A. E. Tatum’s life-estate, and were of the value indicated in the commissioner’s report. The ninth item of Henry W. Allen’s will is, * * * “that none of my property shall be sold until the death of my wife, * * * but the same, together with the increase thereof, shall be kept together until the sale as directed in item 4th.” * * *
The complainant, McLellan, excepted to the commissioner’s account, in this: that said executor should not' be .allowed credit for improvements on the plantation, $3,000 and interest.
The defendant, Tatum, excepted to the report, as follows : 1. To value of personal property on hand at the death of Mrs. Tatum, $1,400. 2. To the twenty-two bales of cotton and four hundred bushels of corn on hand at Mrs. Tatum’s death,, because the same was made by Mrs. Tatum in her lifetime.. 3. To the rent of the plantation, because excessive.
The chancellor decreed, sustaining' the exception of the-complainant and the second exception of the defendant, and. confirmed the report as thus restated. The decree proceeded to appoint one Gilleylen special commissioner to collect the-$10,503.63 thus shown to be due from Tatum to the estate of Henry W. Allen, allowing said commissioner an execution therefor, and directed said commissioner to sell the plantation, vesting title in him for that purpose. The decree further provided that the money, when realized, should be paid pro ratee on the legacies, allowing teifper cent per annum interest on William Raney’s legacy and six per cent on the others, and Tatum was charged with all the costs. From this decree Tatum appealed, and McLcllan took a cross-appeal, the former-assigning for error, (1) not allowing for the improvements; (2) charging him with excessive rents; (3) requiring the appellant to pay $10,503.63 cash, when he is assignee of most of the legacies; (4) allowing ten per cent interest on the William Raney legacy and only six per cent on the others ; and (5) other matters in the final decree ; and the latter assigning for error the sustaining of Tatum’s exceptions to the charge against him for the twenty-two bales of cotton and four hundred bushels of corn.
1. As to the improvements, it is a universal principle that, a trustee in possession of trust property will be allowed all charges necessary to preserve and render profitable the tru st estate. Murray?. De Rottenham, 6 Johns. 52; 1 Mon. 151. Repairs for the relief and protection of the estate are such, charges. 1 Gill & J. 273 ; 2 McCord Ch. 264.
2. The rents were manifestly an overcharge. No witness proves the place to have been worth any thing until improved by Tatum.
3. The court having in the former appeal decided the pur■chases of the legacies by Tatum valid, it was error to make him pay the entire $10,503.63; but he should have been allowed to offset his legacies.
4. It was wrong to allow ten per cent interest' on the William Raney legacy and only six per cent on the others. This gives an unjust and unfair preference, which could be sustained only on the idea that Tatum’s legacies were obtained by fraud; but the assignments thereof have been ■decided to be bond fide.
5. Tatum should not have been charged as much as $1,400 for personal property. He did not get that amount.
6. There is nothing in the assignment of error by the cross-appellant. The income of the life-estate belonged to the life-tenant, Mrs. Tatum, whose interest, on her death without ■children, went to her husband.
1. The former decree, not having been appealed from by 'Tatum, is conclusive upon him in so far as it directs how the .account shall be taken ; and even if legally entitled to credit •for improvements, the decree bars him. Gaston v. Gaston, 54 Miss. 512; 15 How. (U. S.) 451, and authorities there •cited. But Tatum is not legally entitled to credit for improvements, because a trustee, wrongfully retaining possession of "the property, is not entitled to compensation for improvements made by him. Thompson v. Thompson, 16 Wis. 91; Perry on Tr., sect. 520; Hazzard v. Rowe, 11 Barb. 22; Greeny. Winter, 1 Johns. Ch. 37-40.
2. The amount charged for the rent is not excessive, nor is the value of the personal property on hand at Mrs. Martha A. E. Tatum’s death too great. The testimony being conflicting ■on both these sums, the chancellor’s decision must stand.
3. The court did not err in requiring the $10,503.63 to be paid in cash by Tatum, although the larger part of said sum is ■due to him'as assignee of certain legacies. Tatum should .settle what he owes before he receives any thin gthat may be ■due to him from the estate.
4. The court was right in directing ten per cent interest to-be calculated on the William Raney legacy, and only six per cent on those legacies assigned to Tatum, because McLellan appealed from the former decree and Tatum did not, the interest being fixed at ten per cent by said decree. Gaston v. Gaston, supra.
5. While the general rule is, that property raised on the life-estate during the tenant’s lifetime goes, at his death, to his-personal representatives, yet the will in this case directing that the “ increase” shall be kept together with the property until the sale, the will must, therefore, be construed as directing a sale of the property and its increase beyond what was-consumed by Mrs. Allen.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
