Cockrill vs. Armstrong. Many other expressions are given where it has been held that a trust would not be implied. In all cases the general purpose and end to be effected must necessarily be taken into consideration in determining the question as to whether a trust was or not intended to be raised. We have given this subject the most careful consideration, and have reached the conclusion that the intention of the testator was to vest the legal title to the estate in his sons, and to charge the estate in their hands with the maintenance or suitable provision for his daughters; no other conclusion can be reached without imputing to the father the great wrong, without apparent cause, of disinheriting his daughters. "Fifth-It is my wish and desire that my grandson, William Armstrong Cocke, be brought up and educated at the cost and expense of my estate." Here an express trust was created, and a charge declared upon the testator's estate. The terms "wish," and "desire," must be construed as imposing a direct obligation upon the executors to make such expenditure, and to charge the estate with the expense. Taking this provision in connection with all of the others in the will, does but strengthen the conclusion, that it was really the intention of the father to provide out of his estate for all of his children. The will is short and concise, the general purpose clearly expressed. The estate of the testator consisted of lands,. negroes, stock, and farming implements; the cultivation of the plantation his occupation and means of support; his children, two grown sons, the third not then of age, three daughters and a grandson. It may be presumed that he thought it best to keep the estate together, and have the lands cultivated for the payment of his debts and the support of his children. To this end he devised Cockrill vs. Armstrong. the whole of his estate to his three sons, appointed them his executors, and directed that the estate should be kept together as an estate until the youngest son should become of age. The sons may be presumed to have been capable of managing the estate, the daughters not. The extent of their incapacity, whether from tender age or other cause, does not appear. The whole estate was devised to the sons, evidently for the purpose of enabling them to manage and settle the estate, and provide for and support the sisters, and take care of and educate the grandson, and this was, no doubt, intended to be a charge upon the estate; a trust confided to the sons; not a naked trust, but one coupled with an interest. In a trust without an interest in the trustee, the wife of the trustee would not have been entitled to dower, because the dower interest would have diverted a portion of the estate from the use and purpose for which the trust was created, (1 Wash. R. Prop., 162.) but where the trustee has an interest in the estate conveyed to him in trust, whether created by the deed or otherwise, then, to the extent of such interest, the wife is entitled to dower. 4 Kent Com., 436. Scribner, Ch. 19, p. 393: "Although the wife is not dowable when the husband holds nothing but the dry legal title, without any beneficial interest in the land, yet, if any substantial interest therein be conferred with the estate, to that extent it is supposed she would be entitled to dower." In the case under consideration, the devisee certainly had such interest, and his wife (the plaintiff), to the extent of such interest (if the estate was not otherwise incumbered), would be entitled to dower, to be so decreed as not to interfere with the trust estate, or to defeat the purpose for which it was created. We must, therefore, hold that the grounds assumed by counsel for Cockrill, unless in this qualified sense, is not well taken. Cockrill vs. Armstrong. The third ground of objection to the widow's claim to dower is, that the estate of William Armstrong was, at the time of his death, charged with the payment of a debt secured by mortgage and that the estate passed to and vested in the devisees, subject to the prior rights of the executors, with an immediate right of possession and seizin and use, and, if necessary for the payment of debts, sale. And that this estate came into the possession of the husband, not as devisee, but as executor in trust for the payment of the debts of the testator. This ground is well taken. It is provided by statute that lands shall be assets in the hands of the executor or administrator, and shall be deemed in his possession, and subject to his control for the payment of debts; he is empowered to rent the lands, to receive and account for the rents as assets, and, if necessary for the payment of debts, to sell the lands. Such sale, if made, would convey to the purchaser an absolute estate, free from dower, and, if free from dower, it must be because no dower existed at that time; none could exist whilst the lands were so held by the executor, because the seizin, as well as a qualified estate, was in him, and not in the devisee (the husband). There was, therefore, no such estate in the husband of which the wife was entitled to dower. So held by this court at the present sitting, in the case of Jay and Wife v. Tate et al. Independent of this position, but in connection with it, it may be well to consider the character of title held by James T. Armstrong (the husband of plaintiff), who claims title as devisee of his father's estate. The estate of the father was, at the time of his death, incumbered with a mortgage lien for the payment of a debt to the Real Estate Bank, and, consequently, the father then held only the equity of redemption. Cockrill vs. Armstrong. At the common law, the legal estate in the lands mortgaged would have vested in the mortgagee, but in equity, the equity of redemption is the ancient estate in the lands, without change of ownership. Coote on Mort., p. 23. Equity, adhering to the principles of the civil law, which considers the borrower the owner of the pledge until barred by judicial sentence, and looking to the substance, not the form of things, held the mortgagor, as in the civil law, the real owner of the land until decree of foreclosure, and possessed of it in his original right, and, consequently, that the equity of redemption was an estate in the land, and the person entitled to it the real owner of the land. Such is the decision of this court in State v. Lawson, 6 Ark., 269; Moore v. Anders, 14 Ark., 637, and Kannady v. McCanon, 18 Ark., 170. Such was the estate held by William Armstrong at his death, and such the estate devised. At the time of the conveyance to Cockrill, the devisees were jointly in possession of the lands as executors. In the execution of their trust as executors, they had a right to sell and convey the lands for the payment of the debts of the testator. The fee, after the payment of the debts, was in them; the power of disposition in them. By their sale as executors, and for the payment of the debts of the estate, they had power to convey the absolute estate, free from the charge of dower. The sale was made in their trust capacity, and they are estopped from denying the necessity of the sale, or the character in which they sold. If they were at that time seized of an estate of inheritance, the widow would not, of course, be estopped from asserting her rights, but the estate was then incumbered, so that the seizin and estate were not such as to entitle the widow to dower. It may have been, and probably was in part, disincumbered by paying off the two last mortgage debts, but, by the same deed that Vol. XXXI.-38. Cockrill vs. Armstrong. effected this disincumbrance, the husband parted with his whole estate. This momentary disincumbrance, this seizin for an instant, is of no avail. 1 Scribner, Ch. 12, p. 261. The deed from the executors and devisees is, in substance, as follows: Francis W. Armstrong, James T. Armstrong and David I. Armstrong, as executors of the estate of William Armstrong, deceased, and in their individual rights, of the one part, and Sterling R. Cockrill of the other, for the consideration of $13,000 cash, paid to Francis and James Armstrong, and in consideration of an agreement and undertaking of Cockrill to pay certain debts due from the estate of William Armstrong, deceased, consisting chiefly of the debts to McGregor, Alloway & Co., and William Wilson, set forth more fully in mortgages to them upon the property about which this contract of sale and purchase is made, two-thirds of these and other debts being assumed by said Cockrill, and one-third by David I. Armstrong. Now, this indenture witnesseth, that, for and in consideration of the foregoing, and other sufficient causes moving, the said James T., David I. and Francis W. Armstrong, as executors, and in their individual right, grant, bargain and sell, etc., to Cockrill and his heirs, forever, two-thirds of the real and personal estate known as the Armstrong place, one mile below Pine Bluff, fully described in the mortgage deed to Wilson, with the negroes described in the mortgage to McGregor, Alloway & Co., it being the intention of this indenture to convey all the right, title and interest which James T. and Francis W. have in said estate, being two-thirds, the other third belonging to David I. Armstrong. The said James T., Francis W. and David I. Armstrong convey all the right, title and interest, which they have power to do as executors of the estate of William Armstrong, deceased, and the said James T. and Francis W. Armstrong all |