Jones v. Gidwitz
| Decision Date | 30 March 1936 |
| Docket Number | 32156 |
| Citation | 176 Miss. 90,166 So. 915 |
| Court | Mississippi Supreme Court |
| Parties | JONES v. GIDWITZ et al |
Under will devising homestead to wife for life, widow held to take life estate in homestead which she could mortgage to mortgagees who would be entitled to proceeds of fire policy thereon, notwithstanding homestead was included, subject to widow's life estate, In trust estate created by will which was to be divided at end of seven years, and that none of property conveyed to trustees was to be encumbered during life of trust.
HON. R E. JACKSON, Chancellor.
APPEAL from chancery court of Leflore county HON. R. E. JACKSON Chancellor.
Bill of interpleader by the Citizens Insurance Company of New Jersey against Mrs. Ed Jones and others and J. Gidwitz and Phillip Pelts. From a judgment for the two last-named parties, Mrs Ed Jones appeals. Affirmed.
Affirmed.
Chalmers Potter and Henry E. Barksdale, both of Jackson, for appellant.
The rule that the will of a testator must control is so well established that it is almost superfluous to cite any authority in support thereof.
Jones v. Miller, 119 N.E. 326.
In construing a will every word, phrase, paragraph and sentence must be given effect if possible.
Joyner v, Joyner, 117 Miss. 507, 78 So. 369.
We most respectfully submit that under the two rules above announced that in so far as Mrs. Jones is concerned, it is the dominant purpose that Mr. Jones at the time he executed the will in question that she should have the use of the residence located on the land the life estate to which was conveyed to her as a home for herself as long as she lived and thereby an implied prohibition was created against her mortgaging or conveying this property.
Leigh v. Harrison, 69 Miss. 936, 11 So. 604, 18 L. R. A. 49.
It was manifestly the dominant intention of Mr. Jones that Mrs. Jones should have a haven and home during her entire life and if she was to have the same there is bound to have been an implied prohibition against her alienating or mortgaging her life estate in this property.
The single question then remains as to whether it is contrary to public policy to prohibit the alienation of a life estate. We cheerfully submit that the rule in England and in a number of the states upholds this contention. But our court in at least two cases has held that such is not the rule in Mississippi and that any restraint upon alienation which does not violate our two donee statute is valid and binding.
Leigh v. Harrison, 69 Miss. 936, 11 So. 604, 18 L. R. A. 49; Crawford v. Solomon, 95 So. 686, 131 Miss. 792.
We submit that regardless of what the rule in other states may be, in Mississippi it is perfectly proper, legal and binding for a testator or grantor to create a life estate and to prohibit the holder of that life estate during his or her life from alienating the property.
Pollard & Hamner, of Greenwood, for appellees.
The homestead property was not included in the trust estate created by the will.
There is no provision anywhere in the will for the final disposition of the homestead property upon the death of Mrs. Jones. This clearly evidences the intention of the testator to leave the homestead property absolutely free. If he had intended it as a part of the trust estate, then the trust agreement (being the will in this case) must provide the terms of the trust which the trustees shall hold and the final disposition of the property. The testator's failure, therefore, to make such provision for final disposition is enlightening as to his entire intention regarding the homestead property. Failing in such disposition we must conclude that the homestead property all part of the trust estate.
Assuming that the homestead property was a past of the trust estate the beneficiaries, heirs and devisees had a perfect right to waive the trust, and did so by the execution of the trust deed to Gidwitz and Pelts.
Belt v. Adams, 124 Miss. 194, 86 So. 584; Brown v. Long Bell Co., 138 Miss. 548, 103 So. 353; Stern Bros. v. Hampton, 73 Miss. 556, 19 So. 300; 65 C. J. 785; McAuslan v. Union Trust Co., 125 A. 296; Williamson v. Grider, 135 S.W. 361; Bolling v. Bank of New Haven, 294 S.W. 499; Midland Savings & Loan Co. v. Carpenter, 279 P. 310; Vohmann v. Mitchell, 113 Am. St. Rep. 931; 26 R. C. L. 1325; Hughes v. Farmers Savings & Building & Loan Assn., 46 S.W. 362; Duncan v. Jaudon, 21 L.Ed. 142; Blanks v. Atkins, 117 So. 193; Nace's Estate, No. 40 A. D. 518; Gale v. Mensing, 64 A. D. 201; Dykes v. McVay, 67 Ga. 502.
The trend of all of these cases and of the law which we have been able to find is that where there is a breach of trust by a trustee in which the cestui que trust joins, or even acquiesces, the cestui que trust cannot thereafter proceed against the trustee for the breach nor claim any benefit by reason of the breach. This position is strengthened where all of the cestuis que trustent join in the act of the trustee alleged to constitute the breach. In this case the life tenant and the remaindermen all joined in the mortgage with the trustee and we have the very anomalous situation wherein the life tenant and one of the remaindermen are also trustees. The entanglement is so complete that the beneficiaries cannot extricate themselves nor come with clean hands into a court of equity.
Gidwitz and Pelts as mortgagees are entitled to the proceeds of insurance policies written on the insurable interests of the life tenant under the Citizens Insurance Company policy and of the estate of Ed Jones under the Buffalo Insurance policy.
26 C. J. 434; Saunders v. Armstrong, 61 S.W. 700, 22 Ky. L. 1789; Lerow v. Wilmorth, 9 Allen (Mass.), 382; King v. King, 163 Miss. 584, 143 So. 422.
Ed Jones died testate November 1, 1928, leaving large plantations, money, stocks, bonds, and other property, including his homestead consisting of eighty acres of land. On December 27, 1930, Mrs. Pearl Perkins Jones (Mrs. Ed Jones), widow of the testator, and Ed Jones, Jr., his son, as executors and trustees under his will, and individually, joined with David Jones, Ben Jones, and Mrs. J. L. Hopkins--all five being the heirs, legatees, and devisees of Ed Jones, the deceased--and with other parties not involved in this litigation, in a trust deed covering the above-mentioned homestead property, and in favor of J. Gidwitz and Phillip Pelts, of Chicago, Ill., to secure a note four sixty-five thousand dollars.
The residence on the homestead property was insured under two policies, one payable to Mrs. Ed Jones for twelve thousand five hundred dollars, and one payable to the estate of Ed Jones for two thousand dollars, with standard mortgage clauses in both policies in favor of J. Gidwitz and Phillip Pelts. Both policies were in force when the homestead was destroyed by fire in April, 1933. Both insurance companies denied liability, but finally a settlement was reached between the insurance companies and all parties interested by which the companies were to pay seventy-five per cent of the...
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