Fox v. Merchants' Bank & Trust Co.

• Decision Date: 28 October 1929
• Docket Number: 28070
• Citation: 155 Miss. 188,124 So. 321
• Parties: FOX et al. v. MERCHANTS' BANK & TRUST CO. et al
• Court: Mississippi Supreme Court

124 So. 321

155 Miss. 188

FOX et al. v. MERCHANTS' BANK & TRUST CO. et al

No. 28070

Supreme Court of Mississippi

October 28, 1929

Division B

1 TRUSTS. Power of sale vested by will in trustee continues in absence of express limitation.

A power of sale vested by will in a trustee will continue in the absence of an express limitation in the will to the contrary.

2 WILLS. Estate given by one clause of will in clear and decisive terms cannot be cut down by raising doubt of meaning of subsequent clause.

Where an estate is given by one clause of a will in clear and decisive terms, such estate cannot be cut down by raising a doubt by mere inference upon the meaning and application of a subsequent clause.

3 TRUSTS. Trustee with power of sale was authorized to sell property after devisee reached majority, regardless of subsequent provision requiring division at such time.

Under will bequeathing specific property to trustee with power of sale subject to approval of court, and in mandatory language providing for sale as soon as practicable after death of testatrix, the trustee was authorized to complete sale after one of devisees reached his majority, regardless of subsequent provision in will requiring a division of estate at such time.

HON. V. J. STRICKER, Chancellor.

APPEAL from chancery court of Hinds county, First district, HON. V. J. STRICKER, Chancellor.

Suit by the Merchants' Bank & Trust Company and another against Russell Lambert Fox and others. From a decree overruling demurrer to the bill and in favor of complainants, defendants appeal. Affirmed and remanded.

Affirmed and remanded.

D. C. Enochs, of Jackson, for appellant.

The testatrix never intended to give a power of sale to the trustee beyond the arrival of one of the sons at the age of twenty-one years. At that time the property was to be divided into two absolutely equal parts and held for each of the sons, respectively, until he arrives at the age of twenty-four years. On the arrival of one of the sons at the age of twenty-one years, the power to sell under Item 1 ceased, the property was to be divided and held. And a trust to hold does not authorize the trustee to sell.

Dozier v. Freeman, 47 Miss. 647.

Green, Green & Potter, of Jackson, for appellees.

A power of sale vested by will in trustees will continue, in the absence of express limitations to the contrary.

31 Cyc. 1113; Hallum v. Silliman, 14 S.W. (Tex.), 797; Cruikshank v. Parker, 26 A. 925; Johns Hopkins University v. Middleton, 24 A. 454 (Maryland); In Re Lord Sudeley & Baines & Company, 1 Ch. Div. (1894) 334; Thrower v. Knightley, 56 English Reprint, 1043; Cusack v. Tweedy, 26 N.E. 1033 (New York).

Where an interest or estate is given in one clause of a will in clear and decisive terms, it cannot be taken away or cut down by raising a doubt upon the meaning and application of the subsequent clause, nor by inference therefrom, nor by any subsequent words that are not as clear and decisive as the words giving the interest or estate.

Harvey v. Johnson, 71 So. 826, 111 Miss. 566; Bailey v. Sanger, 108 Ind. 264, 9 N.E. 159; U. S. F. & G. Co. v. Douglas, 134 Ky 375, 120 S.W. 328; 20 Ann. Cas. 993; Wood v. Polk, 12 Heisk. (Tenn.), 200.

Argued orally by D. C. Enochs, for appellant, and by Garner W. Green, for appellee.

OPINION

Anderson, J.

Appellees, Merchants' Bank & Trust Company and Garner W. Green, filed their bill against appellants, Mrs. G. F. McMurtray, Frank C. Fox, and Russell L. Fox, for the specific performance of a written contract of sale by appellees to appellant Mrs. McMurtray of a lot in the city of Jackson, in Hinds county, on the corner of George and North President streets, with the apartment house thereon known as 609-611 George street; and, to that end, to have the court construe the last will and testament of Mrs. Jennie E. Fox. Appellants demurred to the bill, which demurrer was by the court overruled, and an appeal from that decree granted appellants to settle the principles of the cause.

Mrs. Jennie E. Fox died seized and possessed of the property involved. She died testate, devising the property specifically to appellee, Merchants' Bank & Trust Company, as trustee. The bank qualified as executor, and with the approval of Garner W. Green, and the chancery court of Hinds county, as provided in the will, entered into a contract of sale of the property involved with Mrs. McMurtray. The latter refused to carry out the contract, upon the ground that, on the arrival of Frank C. Fox, at the age of twenty-one years, the power of sale in the trustee was thereby put an end to.

The bill set out that the lot, located at the corner of George and North President streets, has on it a two-story frame apartment house, erected many years ago, and not in the best physical condition; that the expense incident to the ownership and upkeep of the property was not commensurate with the returns therefrom, and therefore it was to the best interest of the estate, and the beneficiaries under Mrs. Fox's will, that the property be sold, and the proceeds thereof otherwise invested. The court, in its decree overruling defendant's demurrer to the bill, found, under the allegations of the bill and the will of Mrs. Fox exhibited therewith, and the governing principles of law, that the contract of sale was valid; that the bank, as trustee under the will, with the approval of Garner W. Green and the chancery court, had the right to sell the property under the power given in the will, notwithstanding Frank C. Fox had arrived at the age of twenty-one years; and decreed specific performance of the contract.

Appellant's position is as stated--that, on the arrival of Frank C. Fox at the age of twenty-one years, the bank's power of sale of the lot ceased to exist; while appellees' position is the converse. The question is to be solved by the proper construction of the following provisions in Mrs. Fox's will:

"Property not specifically disposed of, I will to the Merchants' Bank & Trust Company, of Jackson . . . as Trustee, and to...