
    Russell v. Bank.
    
      (Jackson.
    
    May 28, 1900.)
    1. Demurber. To whole bill bad, ivlien.
    
    A demurrer to the whole ¡bill, which offers a defense to only a part of it, is had. (Post, pp. 615-618.)
    
    
      2. Same. Pa/per not part of bill.
    
    A will whose construction is sought, though filed and copied into the transcript, cannot be looked to on demurrer, where it is not exhibited with no.r made part of the bill. (Post, p. 618.)
    
    3. REMAINDERMAN. Rights of.
    
    A remainderman can maintain bill to enjoin the administratrix, who is likewise widow and sole distributee of the life-tenant, from receiving a fund left by the intestate on deposit in bank, in his own name, upon averment that the life-tenant had sold and conveyed the entire estate in property, consisting of realty, and had set apart and deposited jsaid fund as the portion of the proceeds due the remainderman for his interest; that complainant ratified and accepted such fund in lieu of his interest in the land, and that defendant was insolvent and the liability-of the sureties on her bond for such fund questionable, if she was allowed to receive it. (Post, pp. 615-622.)
    
    FROM SHELBY.
    Appeal from Chancery Court of Shelby County. K. H. Heiskell, Oh.
    Carroll, McKellar & DulliNG-totst for- Russell.
    Malotste & Malotste for Bank.
   Wilkes, J.

This is a contest over a fund of $8,500, on deposit in the defendant bank to tbe credit of J. II. P. Westbrook at tbe time of bis death.

Complainants claim that this sum is a trust fund and belongs to them, while tbe defendant, Mary P. Westbrook, claims that it is • assets of thq estate of her deceased husband, J. II. P. West-brook, and that, in any event, she is entitled to receive the fund from tbe bank, as his administra-trix. The cause was heard upion demurrer before a special Chancellor, and he sustained the demurrer, and complainants appealed and assigned errors.

The allegations in tbe bill are that, in 1887, E. E. Westbrook died, after making and publishing his last will and testament; that upon a proper construction of his will an estate for life was vested in his widow, Jennie R., and an additional estate for life in Dr. J. II. P. West-brook, with remainder in fee to complainants,' Pauline S. Russell and Anna J. Steinreid. John J. Ross, who is mentioned in the will, died intestate and unmarried prior to the death of the life tenants.

It is further alleged that soon after the death of the widow, Jennie R., Dr. J. II. P. West-brook sold a valuable parcel of land for $15,000, and deposited the proceeds in the defendant bank, which now has $8,500 of the same on deposit, or a part of it loaned out. It is alleged that complainants are entitled to take this fund, in view of the fact that Dr. Westbrook sold the entire fee in the land, whereas he had only a life estate, with remainder' in them, and the contention is that they would be entitled to reclaim the land or take these proceeds and confirm the sale.

The bill charges, further, that Dr. Westbrook, in his lifetime, recognized this fund as belonging to complainants, and repeatedly declared that such was the fact, and that he refused to dispose of the same during his life or by will before his death. Hence that they are entitled to recover the same from the bank direct, and that it does, not go to the administratrix of Dr. West-brook, the defendant, Mary, who is also his widow and sole distributee.

It is further alleged that the widow is insolvent, and the fund should not be paid to hex, but direct to them, and’ as their property. The prayer is that the fund be enjoined in the hands of the bank and the parties to whom loaned,, until further orders of the Court, and that, on final hearing, it be declared a trust fund and the property of complainants, and that it be settled upon them to their sole and separate use, and for all further and general relief proper.

Mrs. Westbrook appeared and demurred to' the bill, the grounds • of her demurrer being thus briefly summarized:

1. That as the deposit stood in the name of John IT. P. Westbrook, without any earmark, she was entitled, as administratrix, to collect the same', she and her bondsmen being accountable for a proper disposition of the same, especially as it does not appear the same was not needed to pay debts.

2. That conceding that Dr. John H. P. West-brook had only a life estate and complainants owned the fee in the plantation, this fact did not give them an < election to renounce their claim to the land and take the balance of the proceeds of the purchase money on deposit.

3. That the declarations made by Dr. J. H. P. Westbrook were not creative of a trust, but were mei’ely erroneous expressions of opinion by him as to the legal rights of the parties, and gave no cause of action to the complainants.

Pretermitting for the present the question raised under the first ground of demurrer, we proceed to examine the second, inasmuch as we are of opinion that the prayer of the bill is broad enough to test the question as to the final disposition of the fund, and the bill can therefore be sustained for that purpose, even though the fund should be paid over for the time being to the administratrix.

Tbe first ground of demurrer does not therefore go to tbe whole of tbe bill or relief prayed, and does not dispose of tbe entire case, and is, for this reason, bad. We proceed therefore, under the second ground of demurrer, to consider the question of the ownership of the fund, so far as it is raised by that ground of demurrer and the allegations of the bill. The will is not made a part of the bill, nor an exhibit to it, but the bill states simply that a certified copy of the will will be filed - on or before the hearing. While, therefore, the will is copied into the transcript, we cannot look to it, in the present status of tbe case, to determine what the rights of the parties might be, under its proper construction, in the land out of which the fund arose. Taking the allegation of the bill as correct that Di\ Westbrook had only a life estate in the land sold, and that complainants are entitled to the remainder, the next question presented by the demurrer is whether complainants, as remainder-men, have the election to forego their claim to the land and to take this balance of proceeds of its sale as their share and interest in the same, or in other words, to ratify the sale and take a part of its proceeds in full of all their interest in the same. Upon this feature of the case, the insistence of complainants’ counsel is that if a tenant for life sell the entire estate, when by law he was only authorized to sell the life interest, the remainderman may ratify the sale and agree with the tenant for life upon an apportionment of the proceeds, and if they cannot agree, equity may make the division, and that in this case, what was done amounted to a division of the proceeds by the life tenant and a subsequent ratification of such division by the re-mainderman. .

We think, upon the hypothetical case put, if the contract ' or agreement can be considered as one executed by both parties, and finally completed and binding upon both, the result would follow as contended, for undoubtedly all the parties in interest may agree to the disposition of property belonging to them, jointly or in common, and a division among themselves, and if it is executed, they will all be estopped to repudiate and disturb it. The case of Vaden v. Voden, 1 Head, 444, 450, is cited and relied on. In that case it appeared that a life tenant, having in her hands a sum of money, invested the same in the purchase of a female slave, who after-wards gave birth to eleven children, and the same were far more valuable than the amount of the original sum invested in the negro woman, and the tenant for life -having died, the remain-dermen claimed that they had an election to take the. slaves, as .the trust fund was invested in them, but tbe Court refused their application, holding they had no right to the slaves. The Court said:

“We are not aware that the precise question has eArer been adjudicated in this State, but the principle stated in Bonner v. Bonner, 7 Hum., 436, would seem very nearly to meet the case. There the remaindermen filed a bill asking security for the safety and forthcoming of slaves obtained in exchange for the one in which they were interested, at the end of the life estate. This was refused as to the slaves received by the tenant for life, in exchange, the Court saying: ‘We are aware of no principle or precedent which, would sanction or authorize it.’ It was argued by counsel in that case, as it is here, upon the authority of King v. Sharp, 6 Hum., 56', and other authorities, that the tenant for life was trustee for the remainderman, and, consequently, that the latter was entitled to have the original fund or property, or that in which it might be invested, or for which it was exchanged, at his election, upon the general principle on that subject applicable to trustees and beneficiaries. But this argument was considered unsound by the Court. In the case of King v. Sharp, 6 Hum., 56, the tenant for life was held to be a quasi trustee, and, further,' that ‘he may dispose of the property at pleasure, so that he does not thereby injure the inheritance in remainder.’ He may not remove it out of the State, so as to endanger the safety of the property, or destroy it. He may use it and make all the profit on it he can, with due regard to its safety and protection. To that extent he may be called trustee, but he is not so in the sense of a pure trust, as a personal representative, guardian, etc.” Vaden v. Vaden, 1 Head, 444-50.

We are of opinion this case is not in point. In the first place, it involves the income or increase of personal property, and not the corpus of real estate. If the question had been whether the remaindermen could claim the original slave or the proceeds of her sale, the cases would have been more nearly analogous. But the case of Vaden v. Vaden proceeds upon the idea that the life tenant may make the property productive and reap the benefit of the income or increase, and so he may make real estate productive and reap the benefit of . the rents and profits, but the case does not involve the rights of the parties owning either the life estate or remainder to the specific property, real or personal.

Now, if Dr. Westbrook had only a life estate, but assumed to sell, and did sell, the fee, and if he set aside so much of the proceeds as he believed properly belonged to the remaindermen for their benefit, and they afterwards acquiesced in the sale and elected to take that portion of the proceeds set apart for them, it is difficult to see why this may not be done. This is, of course, assuming that Dr. Westbrook had a life estate and the complainants a remainder in the land, which we must do under the allegations of the bill, the will not being before us. ■ What may be the result of a proper construction of the will we cannot now tell.

We are of opinion, therefore, that the decree of the Court below must be reversed upon the second ground of demurrer; and inasmuch as the fund may possibly be decreed to complainants, and, if paid over to the executrix, may not be covered by the terms of her bond so as to make her sureties liable therefor, this Court will continue the injunction in force, and ■ the fund will remain in bank until its ownership is determined, or until further orders of the Court.

The question • raised by the third ground of demurrer is a difficult one, on which there is a division of authority, and we do not feel called upon at this time to determine it.

The decree of the Court below will be reversed and cause remanded for answer and such further proceedings as may be necessary, and the appellee will pay costs of appeal.  