Guess v. Strahan

• Decision Date: 10 November 1913
• Court: Mississippi Supreme Court
• Parties: Z. M. GUESS ET AL. v. HATTIE STRAHAN

63 So. 313

106 Miss. 1

Z. M. GUESS ET AL. v. HATTIE STRAHAN

Supreme Court of Mississippi

November 10, 1913

October 1913

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

Suit by Hattie Strahan against Z. M. Guess et al. From a judgment for complainant, defendants appeal.

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

Reversed and remanded.

J. T Brown and Flowers, Alexander & Whitfield, for appellants.

The bill is multifarious because: 1. It seeks to fix the amount of money the executor shall spend on appellee each year. 2. It seeks to try title and fix the ownership of certain notes. 3. It seeks to try title to certain land.

In general, multifariousness may be defined as the improper joinder, in the same bill, of several independent, distinct claims for equitable relief. The fault is analogous to that of duplicity at common law and is forbidden for the same reason.

It may be said that this defense is a technical one and is therefore objectionable under our liberal rules of pleading, yet when the real reason underlying the rule is taken into consideration, this objection loses its force. The true basis of the rule is the protection of the defendant against presenting unnecessary defenses. It places upon him, as it were, the necessity of answering more than he should be required to meet in the particular suit, and when there are several defendants, as is true in the case at bar, it places upon each a liability for costs, and for answering to matters with which he has no connection whatever, and as to which he may have no knowledge.

As said by this court: "It is difficult to lay down any universal rule as to what constitutes multifariousness in equity pleadings. Each case must be determined very much of its own circumstances." Roberts v. State, 47 Miss. 257.

The matters united in the bill are distinct and unconnected equities against the different defendants. Columbus Insurance Company v. Humphries, 64 Miss. 258. Complainant does not assert a common right against parties having a community of interest in all or any of the subject-matter. Roberts v. State, 45 Miss. 257. It seeks relief on different grounds against parties between whom there is no privity. Boyd v. Swing, 38 Miss. 182.

Another question which we feel warranted in calling the court's attention to is the prayer for the allowance of attorney's fees. The bill asks the court for a solicitor's fee for the services of appellee's counsel in presenting its petition.

We submit that as a matter of law the court was without the power to either charge the estate or the defendant's personalty with her solicitor's fees. Section 2131 of the Code of 1906 reads as follows: "In annual and final settlements, the executor or administrator shall be entitled to credit for such reasonable sums as he may have paid for the services of an attorney in the management or in behalf of the estate if the court be of the opinion that the services were proper and rendered in good faith."

The impropriety of such a rule can very readily be seen when we take into consideration the fact that if such was the law any person interested in an estate and feeling aggrieved at the handling thereof, could file a suit against the executor or administrator and charge the estate with all their attorney's fees. It would cause many unnecessary and uncalled for suits. It would make it possible for anyone interested in the estate to employ his attorney, sue the estate and then make the estate pay his attorney's fees. The idea is preposterous. It is a litigated case and the interest of the executor and of the estate is adverse to that of complainant, hence the estate cannot be taxed with complainant's attorney's fees. Bowles v Wood, 90 Miss. 742; Smith v. Stansel, 93 Miss. 69.

The court can only allow attorney's fees where his services are for the common benefit of all the parties. Neblett v. Neblett, 70 Miss. 572, and it cannot be claimed that the complainant's solicitor in the case at bar is rendering a service to the common benefit of all interested.

There was no necessity for the intervention of a court of equity to construe the will. The instrument recites in unequivocal terms that the administrator is to have full power and control of the estate, and is to administer it economically for the comfort of the testator's daughter. The reason for this, as plainly expressed in the will, is that the testator did not wish to turn his estate over to the management of his daughter's husband. He wanted to provide for his daughter but for reasons best known to himself he was loath to leave his estate in such shape as to allow her husband to get hold of it. The cardinal rule for the construction of wills is that the intent of the testator, as evidenced by the language of the will, must prevail, if that intent can be carried into effect without violating some principle of public policy. As said by Lord MANSFIELD in Perrin v. Blake, 4 Burr, 2579: "The testator's intention ought at least to control any arbitrary rule, however ancient its origin, which is unreasonable or not established, or doubtful in its immediate application."

We submit that by an order of the court fixing an arbitrary amount to be paid monthly the very purpose for which the will was made will be frustrated. The testator's intention, which should be the controlling feature in all instruments of this character, will be thrust abruptly aside and an estate which could otherwise be intelligently and economically administered so as to carry out his wishes, will become a mere pool from which a monthly toll only can be taken, regardless of whether it is needed or not.

F. M. Glass, for appellants.

I submit that in the light of the facts disclosed by this bill, the chancery court is without jurisdiction to determine the question of the amount of the annuity, or the time and manner of payment of same, etc., for the reason that no allegation is made in the bill that said executor and trustee does not thoroughly understand the terms of said will and trust instrument and will not faithfully discharge his duties under same, as directed therein, or that said will is ambiguous, or that it is necessary for the court to intervene in order that the wishes of said testator may be fully complied with, even if said appellee were clothed with power to properly bring the matter before the court; but, I submit that, in the absence of mismanagement, negligence of said trustee, or acts of like kind on his part in regard to his trust duties, the beneficiary has no authority to ask the court to construe the trust instrument and determine the duties of the trustee under same, especially where, as in this case, the trust instrument clothes the trustee with full power and authority to exercise his "discretion" subject only to a certain request therein mentioned. If this authority lies at all, it is with the trustee, and it would lie with him only when the terms of the trust instrument are so vague and indefinite that the trustee could not determine his duties under same. In this case, the trustee does not attempt to exercise such authority but appears as a party defendant, and no allegation is made which could tend to charge that the trustee does not clearly understand his every duty in the premises, and can and will faithfully discharge same.

I submit that said court would not have had jurisdiction under the facts as alleged, had the proceeding been filed by said trustee instead of against him, since the said will and trust instrument clearly shows that it was the intention of the testator that his friend, Guess, should exercise his exclusive discretion in regard to the discharge of his trust duties for the "comfort" of his said daughter, directing him only to administer same economically so that there would be a goodly portion left for his grandchildren, the remaindermen. It, therefore, shows clearly that the testator, reposing confidence in his friend, Guess, intended that Guess, and not the court, should use this discretion, and under the law in such cases, where the trust instrument shows the intent of the maker thereof, this intent must prevail and the direction contained in the trust instrument must be followed.

"It is only where there is some reasonable question or doubt as to their powers or duties, or as to the rights of the parties beneficially interested, that trustees are entitled to have the court's direction." 28 Am. & Eng. Enc. of Law (2 Ed.), 1052, and cases cited.

I desire to call the court's attention to the fact that said bill is multifarious in seeking to have the court construe said will and trust instrument, and determine for the trustee his duties in the matter of said trust estate, and thereby directing, through the court's order, the "discretion" given to the trustee by said testator, and making an allowance of attorney's fees for complainant's attorneys, on the one hand, and seeking a decree fixing the title to certain notes in complainant, on the other, thereby joining separate and distinct prayers for separate reliefs, and against separate and distinct defendants. Columbus Ins. & Banking Co. et al. v. Humphries et al., 64 Miss. 258, 1 So. 232.

This bill prays for an allowance of attorney's fees to be paid to the attorneys for complainant out of the funds belonging to said estate. There is no provision of law which would warrant the court to make such allowance, and in the absence of such provision the court is without authority to make same. Section 2131 of Mississippi Code of 1906.

For the reasons assigned, I submit that the learned chancellor erred in overruling said demurrers, and insist that the order overruling same should be reversed, and the demurrers sustained.

Teat &...