Clark v. Foster

• Decision Date: 07 February 1916
• Docket Number: 17097
• Citation: 70 So. 583,110 Miss. 543
• Court: Mississippi Supreme Court
• Parties: CLARK ET AL v. FOSTER ET AL

70 So. 583

110 Miss. 543

CLARK ET AL v. FOSTER ET AL

No. 17097

Supreme Court of Mississippi

February 7, 1916

APPEAL from the chancery court of Calhoon county. HON. D. M KIMBOROUGH, Chancellor.

Bill by Lewis Foster and others against W. H. Clark and others. From a decree for complainants, defendants appeal.

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

Affirmed.

Haman &amp Bates and Flowers, Brown, Chambers & Cooper, for appellants.

J. E Harrington, for appellees.

OPINION

STEVENS, J.

Appellees, as complainants in the court below, presented their bill in equity to cancel certain deeds of conveyance to one hundred and sixty acres of land in Calhoun county, claimed by and in the possession of appellants, the defendants in the court below. The lands originally belonged to one Simon Myers, who died testate, and who, by the terms of his will, directed an equal division of his estate among his several children. The will directed, however, that the interest of his married daughter, Alice Foster, should not be turned over to, managed, or controlled by, his said daughter or her husband, H. P. Foster, but that her portion of the estate, under the terms of the will, was to be managed and controlled by Greenwood Ligon, a son-in-law of the testator, with direction that said trustee apply the trust property to the use and benefit of Alice Foster so long as she should live and, after her death, to the use and benefit of all her children in equal amount and proportion. The provisions of the will in this regard are as follows:

"I do hereby appoint and constitute my son-in-law, Greenwood Ligon, executor of my last will and testament, trustee of my said daughter, Alice Foster, during her natural life, and for her children after her death, to whom as such trustee, the whole of the said property and estate, real, personal and mixed herein intended to be appropriated and applied to the use and benefit of my said daughter, Alice Foster, and her children after her death, is hereby and herein bequeathed in trust for the benefit of my said daughter, Alice Foster, and her children as aforesaid, and it is my will and intention and I hereby direct that the said Greenwood Ligon shall have and exercise full and complete control of the whole of said trust estate, and shall direct, control, appropriate, and apply the said trust property and estate to the use and benefit of my said daughter, Alice Foster, as long as she shall live, and after her death in like manner to the use and benefit of all of her children, born of her body, in equal amount and proportion, it being my intention, will and desire hereby to vest in said trustee, the legal and equitable title to all of said property and estate for the purpose of fulfilling said trust."

Greenwood Ligon was also appointed executor, and accepted the trust reposed in him, executed the will under the directions of the court, presented his final account, and was discharged as executor. He also, accepted the trust committed to him as trustee for and on behalf of Alice Foster and her children for a considerable length of time. Thereafter a petition was filed in the chancery court of Chickasaw county, where the will was probated and the estate administered upon, asking the court to remove Greenwood Ligon as trustee and to turn over the trust property to Alice Foster and her husband. Greenwood Ligon thereupon resigned his office of trustee. The court accepted his resignation, and turned over the trust property to Alice Foster as prayed for. The supreme court on appeal reversed the decree of the chancellor, and directed the lower court to appoint another trustee in the place and stead of Greenwood Ligon, and to have the trust further administered by a trustee appointed by the court. The Chancery court then appoint-George S. Foster trustee, who qualified and served as such until his death in 1896. See reported case of Ligon v. Foster, 63 Miss. 241. It appears that the lands here in controversy were, by partition proceedings, set aside and allotted to Alice Foster and her children as a portion of the estate of Simon Myers, deceased, and in 1887, on petition of Alice Foster and her husband, Pope Foster, the chancery court undertook to authorize and empower George S. Foster, trustee, to sell these lands, either at public or private sale, for the purpose of reinvesting the proceeds "in other and more productive lands." It appears from this decree, dated May 25, 1887, that H. B. Lacy acted as guardian ad litem of the children of Pope and Alice Foster. In pursuance of this decree George S. Foster, trustee, undertook, on September 4, 1888, to convey the land in controversy by private sale to one J. T. Bennett. The deed recites a cash consideration of two hundred dollars, but the proof shows that the only consideration received was an old wagon and some live stock, which was turned over to Alice Foster and her husband and used by them on their little farm. The sale by the trustee was never reported to, nor confirmed by the court, and of course no proceeds of the sale were ever reinvested in other or more productive lands. The children of Alice Foster received no benefit from this sale whatever. On April 4, 1898, the purchaser, Bennett, who had taken possession of the land, sold and conveyed eighty acres to W. H. Clark, and to his wife, L. F. Clark, the remaining eighty acres. W. H. and L. F. Clark were the defendants in the court below and appellants here. D. C. Cooner, the other appellant, holds a deed of trust, executed by the Clarks, on the land in question. The bill in this case was filed September 3, 1912, about twenty-four years after the entry of Bennett; but at the time of the filing of this bill Alice Foster, the life tenant was still living. The defendants, by their answer, invoked the several statutes of limitation; that is, the ten-year statute of limitation conferring title by adverse possession. Section 3123, Code of 1906 (section 2761, Code of 1892); section 3122, Code of 1906 (section 2760, Code of 1892); and sections 3090, 3091, Code of 1906 (sections 2730, 2731, Code of 1892). The chancellor granted the relief prayed for, and cancelled the deed of conveyance from George S. Foster, trustee, to Bennett, and the deed from Bennett to appellants, as a cloud upon the...