Cady v. Lincoln

• Decision Date: 29 January 1912
• Docket Number: 15,604
• Citation: 100 Miss. 765,57 So. 213
• Court: Mississippi Supreme Court
• Parties: BURTON CADY ET AL. v. C. L. LINCOLN ET AL

57 So. 213

100 Miss. 765

BURTON CADY ET AL. v. C. L. LINCOLN ET AL

No. 15,604

Supreme Court of Mississippi

January 29, 1912

APPEAL from the chancery court of Lowndes county, HON. J. F. MCCOOL Chancellor.

Suit by Burton Cady et al. against C. L. Lincoln et al. From a decree for defendants, complainants appeal.

The facts are fully stated in the opinion of the court.

Affirmed.

J. A Orr, for appellant.

Where a trust is created the executor or trustee is charged with carrying it out, and if the trustee dies the court will appoint a new trustee. The trust must be preserved. 18 Cyc 207-E, and, also, same book 206-D.

Where the terms of the will confer a naked power to sell, and the other provisions evince a design that the land should be sold, at all events, to satisfy the whole intent of the testator, the power survives, especially if coupled with a trust, and other duties. Judge Yerger, who delivered the opinion in the Bartlett case, cites Franklin v Osgood, 15 Johns. 553. In this case, Bell was appointed executor and trustee. He was to sell. James and William Cady were alive, and grown adults. If any power or discretion was to have been vested in them, intentionally, by the testator, it would certainly have appeared in the will. As the will reads it is clear that the trustee was to sell and manage the trust. Neither in the residuary clause, or any other part of the will, is a fee simple estate created in either William or James Cady, and no discretion is vested in either of them.

In support of this contention, see, Bartless v. Southerland, 24 Miss. 401. Cyc. 18--1080--69. Cyc. 18--1109. A. Digest 1907. 5245. 1907 B.--1138; McCleland v. McCleland.Cyc., 1907--B--2234; Lelz v. Lelz. See same 2235. Mitchell v. Cleosand, A. Digest. 1908--a--2957. Par. 686--B--Russell v. Wright. A Digest, 1908--B--2567. Par. 10--a--Minors Heir 61--Se--968 A. Digest 1908. A--2508--A--Bowe v. Richmond--109--S. W. 559--Same Webster v. Pittsburg & T. R. R., 84 N.E. 592-a. Digest 1908--B--3908. Power of Disposition Hamilton v. Hamilton, 115 N.W. 1012, same paragraph 700 as to Lumpkin v. Lumpkin, 70-a-238 as to power of decrees. Am. Digest 1908--B--3108--Pasquay v. Pasquay, 85 N.E. 316; Ready v. Hanna, 46 Miss. 422; Haskin v. Ames, 78 Miss. 986.

D. W. Houston, for appellants.

As stated in the bill in this cause, it seems to have been the clear intention and the dominant idea of the testator in his will to create a "spendthrift trust" in favor of his son, William Cady, and grandson, Burton Cady, with remainder over to cocomplainants, etc.

When we read this will, we find every element or earmark of a spendthrift trust, which, as the authorities say, "is commonly applied to a trust which is created with a view of providing a fund for the maintenance of another, and at the same time securing it against his improvidence, or incapacity, for his protection." 36 Cyc. 805; 26 Am. & Eng. Ency. Law (2nd Ed.), p. 138.

After appointing James B. Bell, trustee, as well as executor, of his will in the very first item of his will, he then proceeds, in item 2, to devise, etc., to said Bell "as trustee" the "Eclipse Livery Stable," etc., to be held in trust "for the following uses and purposes, to-wit, the rents, issues and profits of said property to be applied to the support and maintenance of my son, William Cady, junior, and his son, Burton Cady, or survivor, in the case of the death of either. In the event of the death of both, the said property shall return to and become a part of my estate, and be equally divided between my son James M. Cady and my daughter Mary Adella Cady, in the same manner as the other property hereinafter bequeathed to them."

We take it that it will hardly be seriously denied that this evinces a clear intention on the part of the testator to create a spendthrift trust as to said "Eclipse Stable," etc.

It is expressly directed to be held in trust by a trustee appointed, in whom alone the legal title is vested, and only the rents, issues and profits are to be used and applied (How?) to the "support and maintenance of William Cady and Burton Cady (how long?) during their joint lives," "or in case of the death of either, to the support and maintenance of the survivor."

This trust was not to cease upon the death of either, but was to continue during the life of both, so when William Cady, died, it continued for the survivor, Burton Cady, during his life. When he dies (and only when he dies to use the language of the will), "said property shall return to and become a part of the testator's estate, and then (and then only) be equally divided between James M. Cady and Mary Adella Cady" (who, however, died before the testator) "in the same manner as the other property hereinafter bequeathed to them."

Surely, it cannot be successfully contended that this does not create a spendthrift trust for William and Burton Cady, and vest the title in said trustee, the rents issues and profits to be used and applied by him to the support and maintenance of said William and Burton Cady as long as either lives, free from alienation, anticipation, or incumbrance of any kind; and upon the death of both, that the fee should vest in James M. and Mary Adella Cady; and upon the death of James M. Cady, intestate, his interest passed to his heirs, the appellants, Misses Annie Leigh and Fannie Cady and Mrs. Ozie Cady Hogan.

The testator provides as to the residue of his real and personal estate (which includes these squares) that his executor Bell "shall" sell same, without any order of court, as "(that is, in the manner) he shall think advisable and on such terms as he may think best," making it mandatory (and not discretionary) that said executor shall sell same, but leaving the manner and the terms of the sale to his judgment and discretion.

It then provides that with the money arising from said sale and from the collection of debts due testator and all sources, said executor shall, first, pay all debts; second one-fourth of the remainder, he shall (not may) apply to the use of my son William and grandson Burton, to be "held" (not to be distributed) by (whom?) "said James B. Bell as trustee" (not by him as executor or by some one else), to be invested at his discretion, and applied as directed in reference to "Eclipse Stable" in item second; third, the remainder to be equally divided between James M. Cady and Mary Adella Cady, and paid to them as they shall respectfully become of age."

So, as to the interest of William and Burton Cady in these squares, the will expressly and explicitly provided that it has to be held and invested by Bell as trustee and applied as in said item 2, and we have already discussed how that was.

This was not to be sold by a commissioner under partition proceedings instituted by the guardian of Burton Cady, and the money paid over to said guardian or Burton to be spent or dissipated, and thus violate or render ineffective the trust declared and the scheme devised by the testator in his will, but it was to be held and invested and used for the support and maintenance of William and Burton during their joint lives and to the survivor, and at the death of both, it, or the balance, was to go to James M. Cady or his heirs.

As to this interest, item 5, refers to item 2, and makes it a part of it as fully as if copied and embodied in said item 5.

James B. Bell, trustee, died in August, 1885, but no trustee was appointed in his stead to carry out these trusts, as we contend should have been done under the old maxim "that equity never allows a trust to fail for the want of a trustee.

The authorities sustain the proposition that this creates a spendthrift trust, a few of which I shall cite: 26 Am. & Eng. Enc. Law (2nd Ed.), p. 138; 26 Am. & Eng. Ency. Law (2nd Ed.), pp. 141-2; 26 Am. & Eng. Ency. Law (2nd Ed.), p. 143; 28 Am. & Eng. Ency. Law (2nd Ed.), p. 929; 36 Cyc. 805; 51 W.Va. 328, 332; 41 S.E. 405; Leigh v. Harrison, 69 Miss. 923; Barnett's Appeal, 46 Pa. 392, 86 Am. Dec. 502; Stansel v. Hahn, 96 Miss. 622-3; Wilson Estate, 2 Pa. St. 325; 26 Am. & Eng. Ency. Law (2nd Ed.), 144; 28 Am. & Eng. Ency. (2nd Ed.), 953; West v. Robertson, 67 Miss. 213.

William Baldwin, for appellee.

I have read with great interest the able and exhaustive briefs of counsel for appellants, and they are unanswerable in the points they make, when applied to cases calling for their application.

But it is submitted that the very foundation of those principles so ably set up are wholly wanting in the case now before this court. The principles set up by my brethren call for a case where there is a trust in the property itself, and all parties dealing with the title to that property must recognize the trust that inheres in the title to the property. We surely have no such case here.

Old man Cady, in item 2, created such a trust in the property itself, in the property devised by it, but surely he never created nor intended to create a trust in this lot, that was part of the residuum, and undisposed of by him entirely, except in the power of sale over it, given to his executor, Bell, to sell if necessary to pay debts. And upon the death of old man Cady, this lot went to his heirs subject to the power of sale of it given his executor, Bell, if necessary to pay debts. It was not necessary to sell it to pay debts, and the executor Bell hence never exercised his discretion and power to sell it, and upon the death of Bell, it went to the heirs-at-law of old man Cady (Cohea v. Jamison, 68 Miss. 510).

C. L. Lincoln, for appellee.

I summarize the contention of appellee as follows:

1st. That as to lot 31 disposed of by the 5th item of the will of William Cady, Sr., unlike the Eclipse Livery Stable disposed of in item 2 of the will, there was no...