Barrier v. Kelly

• Decision Date: 24 March 1903
• Citation: 82 Miss. 233,33 So. 974
• Court: Mississippi Supreme Court
• Parties: BUFORD J. BARRIER, JR., v. ISHAM M. KELLY ET AL

33 So. 974

82 Miss. 233

BUFORD J. BARRIER, JR., v. ISHAM M. KELLY ET AL

Supreme Court of Mississippi

March 24, 1903

[Copyrighted Material Omitted]

FROM the chancery court of Yazoo county. HON. HENRY C. CONN Chancellor.

Barrier appellant, was complainant and Kelly and others, appellees were defendants in the court below. From a decree in defendants' favor the complainant appealed to the Supreme court. [See Barrier v. Kelly, 81 Miss. 266, where a previous appeal in this case was dismissed.]

The facts are fully stated in the opinion of the court, however the deeds involved were as follows:

Exhibit C.

"This indenture made and entered into this 4th day of June, 1890, between Mary Ann Ray, of Madison county, Mississippi, of the first part, and I. M. Kelly, of Yazoo county, Mississippi, of the second part, witnesseth: That the party of the first part in consideration of the love and affection which she bears to her beloved son, Jackson Harvell Ray, now a minor, and for other and divers good and lawful considerations thereunto moving the said party of the first part, not herein expressed, she hereby gives, grants, bargains, sells and conveys to the party of the second part the following real estate, to wit: An undivided half interest in the east half of the southwest quarter, section seven; the east half and southwest quarter, and east half of northwest quarter, section eighteen, T. 10, R. 2 west, situated in Yazoo county, Mississippi. Also the following tract or parcel of land known and described as follows: North half of section three, township 8, range 3 west; east half of lot 7, section 18, township 8, range 3 east, situated in Madison county, Mississippi. Also the following personal property: A one-half undivided interest in all the cattle and household effects (except one bedroom set and clock, conveyed in deed of this date to the party of the second part for B. J. Barrier), and one horse and buggy being now owned by the party of the first part, and on the place on which she now lives in Madison county, Mississippi, now on my home in Madison county, Mississippi. To have and to hold the same until the said I. M. Kelly and his successors in the trust as hereafter set forth in succession, and subject to the limitations, terms, conditions, uses, and purposes hereinafter specified. But this conveyance is in trust and on the following terms and conditions, and for the following uses and purposes, and subject to the conditions, limitations, powers, and provisions following: Said party of the second part is to take charge of, control, manage, and direct the property herein conveyed to him as he may see proper, in the interest of said minor, until he shall become of age, when the said property herein conveyed, and still remaining in the hands of said trustee, shall be delivered to him; and said trustee is hereby directed to make a deed, in fee simple, to said lands, to said Jackson Harvell Ray, who shall thereafter hold the same absolutely. The said trustee is hereby authorized to make any improvements on said property he may see proper, rent out and control the same, and to invest any surplus money he may have, belonging to said minor, in property, which shall in all things follow the trust. Said trustee may resign his trust and appoint a successor in writing, duly acknowledged and recorded, or by last will and testament, and, should he die or resign without appointing a successor, the chancellor of the district may, on the application of said minor, or any one in his behalf, appoint a successor, but said minor may have the right to designate such successor, subject to the approval of the said trustee, and such successor shall have all the rights herein conferred on said Kelly, and be subject to all the requirements and conditions of this instrument. Said trustee shall render to the court which has jurisdiction of the matters of guardianship, an annual account, showing the condition of his trusteeship, but will not be required to show receipt far expenditures, but his account book shall be sufficient evidence of all receipts and expenditures. Said trustee may lease said land in Madison county to the father of said minor on such terms as he might see proper, and make lower prices to him on account of his relationship, if he sees proper to do so. Should said minor die during his minority without a wife living, or issue of the body, or descendants of the same, the property herein conveyed shall go to his half-brother, B. J. Barrier, or his children, or descendants of the same, should he have any. Said trustee is hereby directed to make the necessary conveyances at the proper time to vest the title according to the terms of this instrument. Said trustee is to use sufficient of the proceeds of the said personal property, which he may sell at public or private sale, on such terms as he may think best, and of the rents and profits of said land, in suitably maintaining, educating, and taking care of said minor; and if there should not be a sufficient sum of money realized by said trustee out of the cash, notes, choses in action, delivered to him in accordance with an instrument of even date herewith, executed by me for the benefit of my son, B. J. Barrier, to pay what said trustee is required to pay by said instrument, he may pay such deficit out of the proceeds of said personal property, or rents and profits of said land. It is intended that said trustee shall pay all taxes and other necessary expenditures on said land, and to have such reasonable compensation for his services as the court to which he accounts may allow him. He shall also be allowed such reasonable attorney's fees and other expenses as he may have to incur in and about his trusteeship.

"Witness my signature this the day and year first above mentioned.

"(Signed) MARY ANN RAY."

Exhibit D.

"This indenture made and entered into this the 4th day of June 1890, between Mary Ann Ray, party of the first part, of Madison county, Mississippi, and I. M. Kelly, party of the second part, of Yazoo county, Mississippi, witnesseth: That the party of the first part for and in consideration of the love and affection which she bears her beloved son, B. J Barrier, now a minor, and for other divers good and lawful considerations thereunto moving the said party of the first part, not herein expressed, she hereby gives, grants, assigns, and delivers to said party of the second part all of the cash money, notes, choses in action or other evidence of indebtedness now belonging to her; also the following personal property: A one-half undivided interest in all the cattle on the home place in Madison county, Mississippi; also the only bedroom set being on the said place, and an undivided half interest in the bedding and household effects of every kind; also one clock; all being on said place in said county, and property being claimed by party of the first part, and said place referred to being the one on which the party of the first part now resides; and, for consideration aforesaid, the party of the first part, gives, grants, bargains, sells, and conveys to the party of the second part whatever interests she may have in the lands of her former husband, B. J. Barrier, Sr., situated in Yazoo, Madison, and Neshoba counties, in the state of Mississippi, owned by B. J. Barrier, Sr., at his death. To have and to hold the same unto the said party of the second part and his successors in the trust as hereinafter set forth in succession, and subject to the terms, conditions, uses, and purposes hereinafter specified. But this conveyance is in trust, and on the following terms and conditions, and for the following purposes, and subject to the limitations, powers, and provisions following: The said trustee shall, out of any money, or collections from any notes, choses in action or other evidence of indebtedness, as heretofore mentioned, pay all of the family expenses of or other demands made on him by the party of the first part, or such expenditures as he may think necessary, whether required by the party of the first part, during her life; hereby giving him full and discretionary power during the life of the party of the first part, except so far as she may direct; she reserving the right to direct any expenditure of such property, while she lives, that she may see proper. At the death of the party of the first part, said party of the second part is hereby directed to pay all debts that she may owe, including burial expenses, without probation and registry, as speedily as he can, out of said money, notes, etc., then erect such monument as he may see proper over the grave of the patty of the first part and her deceased children, and pay expenses of removing the remains of the latter to the graveyard at Concord Church, in Yazoo county, Mississippi, where the party of the first part directs the said party of the second part to bury her remains. He is next to pay over the sum of one hundred dollars to Miss Eva Barrier, niece of the party of the first part, in consideration for the kindness she has shown and the services she has rendered to the party of the first part. He shall next pay to her husband, J. H. Ray, the sum of dollars; all of which sum, etc., shall be paid out of said money, notes, etc.; and should there be any balance left, the said trustee is to use the same for the benefit of said B. J. Barrier, as he may require. The party of the first part hereby conferring on the said trustee full power and discretion. The said trustee may sell or dispose of said other personal property as he may think best, either by private or public sale, and on such terms as he may see proper, or retain such portion thereof for the use of the said minor as in his judgment the interest of the said minor may require. ...