Hart v. First Nat. Bank of Jackson

• Decision Date: 02 June 1958
• Docket Number: F,No. 2,No. 40826,2,40826
• Parties: Mrs. Lulu HART v. FIRST NATIONAL BANK OF JACKSON, Trustee, et al. In the Matter of the Trust Estate for Dr. Leonard Hart, Deceased, Trustirst National Bank of Jackson, Trustee.
• Court: Mississippi Supreme Court

Page 406

103 So.2d 406

233 Miss. 766

Mrs. Lulu HART v. FIRST NATIONAL BANK OF JACKSON, Trustee, et al. In the Matter of the Trust Estate for Dr. Leonard Hart Deceased, Trust No. 2, First National Bank of Jackson, Trustee.

No. 40826.

Supreme Court of Mississippi.

June 2, 1958.

Floyd, Cameron, Deen, Meridian, for appellant.

Ricketts & Weston, Wells, Thomas & Wells, Jackson, for appellee.

HOLMES, Justice.

This appeal presents for our construction and interpretation a certain instrument of writing dated August 2, 1917, executed by Ben Hart and his wife, Mrs. Ida Hart, creating a trust for the benefit of their son, Dr. Leonard Hart, upon certain terms and conditions therein stated, and designated as Leonard Hart Trust No. 2.

The litigation originated in the Chancery Court of the First Judicial District of Hinds County upon a petition filed by First National Bank of Jackson, the successor trustee in said instrument, praying for authority to sell certain real property in which the trust estate owned an interest. On July 24, 1917, an instrument identical in its terms and provisions with the said instrument designated as Leonard Hart Trust No. 2, except as to the property therein described, was executed by Ben Hart and his wife, Mrs. Ida Hart, and is designated in the record as Leonard Hart Trust No. 1. In both of said instruments it was provided that upon the death of Leonard Hart, his wife, Lulu Hart, during her widowhood, should be paid the sum of $150 per month, payable quarterly, 'out of the net income of said property'. Dr. Leonard Hart died in 1937. During the nineteen-year period since his death the income from the trust property in Leonard Hart Trust No. 1 has been sufficient to meet the payments of $150 per month to Lulu Hart, the widow of Leonard Hart. Under this trust No. 1, Mrs. Hart has therefore received a total sum of $34,200. During the same period, the income from the trust property in the Leonard Hart Trust No. 2 has been insufficient to meet the payments of $150 per month to Mrs. Hart, and has yielded to her only an average of $887.77 per year, or a total of $15,943.91. Thus Mrs. Hart has received during the nineteen-year period from both trust No. 1 and trust No. 2 the total sum of $50,143.91. During the nineteen-year period, Mrs. Hart has accordingly received all of the income from the Leonard Hart Trust No. 2 and has accepted the same without protest until now, even though the same was insufficient to the amount of $18,256.09 to meet the payments of $150 per month in the Leonard Hart Trust No. 2.

The Leonard Hart Trust No. 1 is not here involved. There is only involved the question of the deficiency in the payments to Mrs. Hart under the Leonard Hart Trust No. 2.

There was named as defendants to the aforesaid petition the income beneficiary, Mrs. Lulu Hart, and the remaindermen under the trust instrument. All parties approved the sale of the property as prayed for in the petition and joined in the prayer therefor. Mrs. Lulu Hart made her answer a cross-bill and prayed that the trustee in the Leonard Hart Trust No. 2 be directed to pay her from the corpus of the trust estate the deficiency in the monthly payments provided for in the trust instrument. The trust instrument, in its pertinent provisions, provided as follows:

(1) 'In consideration of $1 and other valuable considerations, the receipt whereof is hereby acknowledged, we, Ben Hart and Mrs. Ida Hart, adult residents of Jackson, Hinds County, Mississippi, convey and sell to Mrs. Minnie Hart Dreyfus, Joseph Hart, and Saul Cyril Hart, as trustee for Leonard Hart, subject to the conditions, provisions and limitations hereinafter stated, the following described property, towit:' (Here follows a description of the property.)

(2) The trustees, who were the sister and brothers of Dr. Leonard Hart, were given the right and authority to lease, sell, barter, exchange, mortgage, encumber, improve, repair, invest and reinvest and generally manage the property or the proceeds thereof, and it was further provided that in the event the trustees should sell, barter, or exchange said property, or any part thereof, the trustees should be under the same duty with respect to the proceeds and that the proceeds should stand in lieu of the property sold. It was further provided, however, that the right of sale, etc., was conferred upon said trustees subject to the written consent of the said Leonard Hart.

(3) The instrument contained the further provision: 'At the death of Leonard Hart if he shall be survived by his present wife, Lulu Hart, the said trustees shall, during her widowhood, pay her out of the net income of said property $150 per month, payable quarterly. Upon the death or marriage of the said Lulu Hart the said trustees shall convey said property then remaining in their hands to the lawful issue of the said Leonard Hart; and if he leaves no issue of his own body, then, in such event, to the heirs at law of the grantors herein, said heirship to be determined as of the death of the grantor last dying.'

(4) It was further provided that 'the said trustees shall have the right, power and authority at anytime they may see fit to convey, transfer, and deliver said property still remaining in their hands, or any part thereof, or the proceeds or income thereof, or any part thereof, to the said Leonard Hart absolutely and without condition, in which event this trust shall terminate.'

(5) It was further provided that during the existence of the trust 'the said trustees shall pay and deliver to the said Leonard Hart quarterly the net income derived from the property herein conveyed, or the proceeds thereof; but no part thereof shall be liable for any debt or obligation owing by him.'

The question here presented is whether or not the provision in the trust instrument directing the trustees to pay to Mrs. Lulu Hart 'out of the net income of said property' $150 per month, payable quarterly, created for Mrs. Hart an annuity payable in any event and without contingency and whether or not she is entitled to have the corpus of the estate invaded for the purpose of meeting the deficiency in the monthly payments directed in the trust instrument.

In determining this question, consideration must be given to the instrument as a whole and effect must be given to the plain and unambiguous language therein used. It is generally recognized that general rules of construction of written instruments apply to the construction of trust instruments whether they are contracts, deeds, or wills. 54 Am.Jur., Trusts, Sec. 17. The prime inquiry in the construction of a will or trust instrument is the intention of the testator or the trustor, and in ascertaining this intent, effect must be given to the plain and unambiguous language used in the trust instrument. In re Vail's Will, Miss., 87 So.2d 68. It is also a well recognized rule of construction that in ascertaining the intention of the testator or trustor, consideration must be given by the Court to the entire instrument and the instrument considered as a whole. Cross v. O'Cavanagh, 198 Miss. 137, 21 So.2d 473. It is further a well recognized rule of construction that doubtful provisions will be construed favorably to the next of kin as against those of more remote kinship of the testatrix or trustor. Cross v. O'Cavanagh, supra.

In 54 Am.Jur., Trusts, Sec. 17, it is said: 'General rules of construction of written instruments apply to the construction of trust instruments, whether they are contracts, deeds, or wills. The cardinal rule of construction is, of course, to determine the intention of the settlor, where the creation of the trust is a unilateral matter, and to determine the intention of the parties, where such creation is a bilateral matter. Due weight must be given to all words used by the trustor in determining his intention. The object construing an instrument creating a trust is to ascertain the intent and purpose of the settlor, and to effectuate that purpose insofar as it is consistent with the rules of law.

'In the case of a trust based on a written instrument, the intention of the trustor is to be ascertained from the language thereof, and the court may not go outside the language in an effort to give effect to what it conceives to have been the actual intent or motive of the trustor. If the language is unambiguous and perfectly clear, there is no field for the play of construction; if the trustor has clearly expressed one intention, the court cannot impute to him another, and parol evidence is inadmissible to add, take away from, or even to explain such clear expression of intention. * * *.'

Counsel on both sides have been unusually diligent in their research of and in correlating the decisions of the courts of other jurisdictions. These decisions have been governed by the provisions of the instrument in each instance and the particular facts and circumstances of the particular case. The result has been that there are many decisions holding that where the instrument directs the payment of a designated sum to a beneficiary out of the income of the trust estate and the income proves insufficient to meet the payments, resort may be had to the corpus of...