
    Albert C. Franklin et als. vs. John Armfield et als.
    
    Isaac Franklin died in Louisiana on tbe 27th of April, 1846. Previous to his death, he made and published his Will, disposing of a very large estate, real and personal, in the States of Mississippi, Louisiana and Tennessee, valued at about one million of dollars. The testator’s domicil, at his death, was in Sumner County, Tennessee. He left Adelicia, his widow, and Victoria, Adelicia and Emma Franklin, his three minor children. Adelicia, one of the children, died on the 8th of June, 1844, and Victoria on the 11th of June, 1846, in the County of Sumner, and both intestate. Mrs. Franklin intermarried with J. A. L. Aclin, on the 9th of May, 1849. The Will was admitted to probate in Louisiana and Tennessee, and John Armfield and 0. B. Hays, two of the executors qualified, and entered upon the discharge of the trusts. By the Will, he gave his home, “ Fairview, ” in Sumner County, to his wife, during her widowhood, and.in the event of her second marriage, she was to be paid one hundred thousand dollars, or an annuity of six thousand dollars for her life. And, after making certain bequests to his children, and some specific legacies to his relatives, he directed that the revenues from a large amount of his property, should be paid to certain trustees, for the purpose of founding an institution of learning on his homestead, (‘‘Fairview,”) in Sumner County. In 1848, the trustees of this institution, for the purpose of facilitating its progress and completion, purchased of Mrs. Franklin her usufruct in the “Eairview” place, for which she was paid by the executors, at the request of the trustees, $30,000. In 1850, Mrs. Acklin elected to take the hundred thousand dollars — a portion of which has already been paid her. This cause was before, the Court at the December Term, 1854, and, is reported in the 2nd volume of Sneed’s Reports, pages 302-359, to which, the reader is referred for a full statement of the facts, and the Will of the testator, together with the principles of law there settled, and the questions reserved by the Court, until the coming in of the report, where the equities .existing between the parties, growing out of the decision made by the Supreme Court of Louisiana, declaring the incumbrance upon his property for the,benefit of the Academy, to be void, by the laws of that State, and other facts involved in the settlement of the case.
    [The questions of law determined in this cause are so numerous, and so concisely stated, that a syllabus could not abbreviate the statement of the principles decided, or make them more intelligible. I, therefore, publish the opinion without the usual abstract. — Repoktek.]
    FROM SUMNER.
    EdwiN H. EwiNG, & Joseph C. Guild, for the trustees.
    EraNCIS B. Fogg, for Acklin & Wife. ,
    William E. Cooper, for Emma Franklin.
    R. J. Meigs & Johk J. White, for the Executors.
   John MARSHALL, Sr., Special Judge,

delivered the opinion of the Court.

This caso is again before the Court for the purpose of adjusting the equities of the parties, which have grown out of the Will of Isaac Franklin; deceased, the decisions of the Courts made upon it, and the execution of the Will.

The disruption of the scheme of the Will by the decision of the Supreme Court of Louisiana, declaring that all devises of immoveable property, situate in that State, to the charity, held to be valid by this Court, are void, and the- execution of the Will, upon its own scheme, for a number of years, have made the questions embarrassing.

The Court is, however, much aided by the able report of R,. J. Meigs, Esq., made under its former decree. It is unquestionably true, that the charity created by the testator, in his Will, can take no benefit whatever, from the immoveable property situate in the State of Louisiana, neither directly, by way of gift, nor indirectly, on the principle of marshaling assets.

By the law of Louisiana, the testator iras competent to dispose of one-third of his immoveable property, situate in that State, to any lawful purpose, or to impose on it, lawful burdens, at his discretion.

The gift of this one-third to the charity, was an unlawful purpose, and was, therefore, void.

By the Will, the testator subjects the whole of his immoveable property in Louisiana, to the payment, by its revenues or income of certain specified objects, viz: debts, ameliorations, legacies and expenditures, which have no connection with charity, and are lawful. This disposal, exceeding the quantum that the testator might legally dispose of, is not void, but is reducible to that “quantum:” La. Code, Article 1489. The charge on the revenues of the disposable portion of his immoveable property in Louisiana, is a valid one.

The burden of paying the pecuniary legacies in the 7th section of the Will, is imposed exclusively on the revenues of this immoveable property.

The Will charges these revenues with the payment of his debts, and all other expenditures contemplated by his Will; and also charges the income of the property given to the charity, with the payment of the same debts and expenditures, with this exception — that the widow should have the benefit of the Eairview property during her widowhood. Until these burdens should be removed by the revenues of the immoveable property, and the income of the property devised to the charity, the property devised to the charity, was to remain in the hands of his Executors, and be under their control, and the income applied to said burdens. With this exception, that Eairview property, during the time of the widow’s usufruct thereof, should pay nothing towards said burdens.

The testator subjects the revenues of his immoveable property to the payment of said burdens during the same time, and contemplates the possibility that this time might extend beyond the majority or marriage of his unborn children.

The trustees of the charity are-' not entitled to the possession of the corpus of the property devised to them, until these purposes are accomplished, and the .disposable portion of said immovable property is liable to contribute its entire revenues .during the same time; not in aid of, or to release the charitable bequest, upon any equitable principle, but by force of the testamentary disposition.

There is no charge in the Will upon the corpus of the testator’s property to meet the burdens of his Will. But, on principles of equity, controlling the administration of assets in such cases, it is held, in this case, that the moveable property of the estate, locate in the State of Louisiana, is subject to the payment of the costs and expenses of executing said Will in Louisiana, and in Tennessee and elsewhere, and to said burdens.

As .between the heirs of Isaac Franklin, deceased, and the trustees of the charity, the $30,00& paid by the latter to Mrs. Franklin for her usufruct of the Fairview property under the Will, will not be considered one of the burdens of the Will.

Mrs. Acklin will be entitled to a lien on said revenues and income," for the payment of any balance that may be due to her on her legacy of $100,000.

The heirs of Isaac Franklin, deceased, will be entitled to tbe benefit of any payments that may have been made from the revenues of the immovable property, beyond the entire revenues of the disposable portion thereof.

The heirs will be held accountable for the revenues of the disposable portion, and the trustees held accountable for the income of the charity property, until Mrs. Acklin shall have been paid her legacy, and until the two accounting parties shall have their rights adjusted and satisfied on the principles of this opinion.

Proper accounts will be ordered, to enable the Court to decree such adjustment and satisfaction.  