Low v. First Nat. Bank & Trust Co. of Vicksburg

• Decision Date: 11 January 1932
• Docket Number: 29622
• Citation: 138 So. 586,162 Miss. 53
• Parties: Low et al. v. FIRST NAT. BANK & TRUST CO. OF VICKSBURG
• Court: Mississippi Supreme Court

138 So. 586

162 Miss. 53

Low et al. v. FIRST NAT. BANK & TRUST CO. OF VICKSBURG

No. 29622

Supreme Court of Mississippi

January 11, 1932

Division A

1. EXECUTORS AND ADMINISTRATORS. Will held to show testator did not intend that farm property should be operated by executor or trustee beyond year following testator's death.

One item of will read, in substance, that if testator died at period of year too late to arrange for renting of real estate or at period when crops would not have been harvested, then executor or trustee could expend sum necessary to complete making, harvesting, and marketing of crops, but in no event should executor or trustee operate such properties beyond another crop; and another item of the will authorized executor or trustee to rent land for such time and upon such terms as it deemed to best interest of estate.

2 WILLS.

Testator may make will as he pleases if it does not violate law.

3 WILLS.

Courts may not amend or reform will lawfully executed and in conformity with law controlling disposition of property.

4. EXECUTORS AND ADMINISTRATORS.

Where to follow terms of will by not operating farm beyond certain period would result in permanent impairment and partial destruction of estate, court could authorize executor or trustee to operate farm for another year (Code 1930, sections 1621, 1630).

5 WILLS.

Chancery court may invade terms of will to carry out testator's ultimate purpose and prevent loss or destruction of estate.

HON. J. L. WILLIAMS, Chancellor.

APPEAL from chancery court of Sharkey county HON. J. L. WILLIAMS, Chancellor.

Suit by O. L. Low and others against the First National Bank & Trust Company of Vicksburg, Mississippi, as executor and trustee of the estate of D. D. Low, deceased, in which defendant filed a cross-bill. From the decree, complainants appeal. Affirmed as modified.

Affirmed as modified.

Brunini & Hirsch, of Vicksburg, for appellants.

The court had no authority to decree the reformation and correction of a will.

Schlottman v. Huffman, 73 Miss. 189.

The intention of the testator is the polar star for inquiry in the interpretation of his will and such intention must be collected from the words which he has employed; the question is not what he wished but what he has said.

Johnson v. Delome, 77 Miss. 15; Jones v. Carey, 122 Miss. 244.

Since the course directed by testator in his will was a lawful course, no other course could be pursued by the executor than to follow the directions of the will.

Section 1622, Code of 1930.

The executor shall well and truly execute the will if the law permits; and he shall also have a right to the possession of the real estate so far as may be necessary to execute the will and may have proper remedy therefor.

Section 1621 of the Mississippi Code of 1930.

The court seems to have recognized the right of the chancery court to decree the sale of trust property when necessary to prevent the loss or destruction of the trust estate.

Mayes v. Mayes, 133 Miss. 213.

The rule seems to be well established that an invasion of trusts may be made when necessary to preserve the estate from destruction.

Pennington v. Metropolitan Museum, 55 A. 468; Johns v. Johns, 50 N.E. 337; Stevens v. Collison, 113 N.E. 691; Union Savings Bank v. Alter, 132 N.E. 834.

And while it has been said that in the exercise of its jurisdiction over trustees the court may in general order the trustees to with the trust property in whatever mode it may consider to be for the benefit of the cestui que trust who are infants or under disabilities, still a trust cannot be altered or destroyed by a court of chancery on the sole ground that in the judgment of the court it will be beneficial to the parties in interest.

26 R. C. L. 1283.

W. H. Clements, of Rolling Fork, for appellee.

A court of equity has jurisdiction to enter a decree modifying the terms of the trust when the facts presented show the necessity to exist to preserve the estate for the beneficiaries and carry out the intention of the creator of the trust.

Johns v. Montgomery, 265 Ill. 21, 106 N.E. 497; L. R. A. 1916B, p. 1073; Curtiss v. Brown, 29 Ill. 201; Voris v. Sloan, 68 Ill. 588; Longwith v. Riggs, 123 Ill. 258, 14 N.E. 840; Hale v. Hale, 146 Ill. 227, 20 L. R. A. 247; Garvin v. Curtin, 171 Ill. 640, 40 L. R. A. 776; Ballridge v. Coffey, 184 Ill. 73; Marsh v. Reed, 184 Ill. 263, 56 N.E. 306; Denegre v. Walker, 214 Ill. 113, 105 A. S. R. 98; Johnson v. Buck, 220 Ill. 226, 77 N.E. 163; Roberts v. Roberts, 259 Ill. 115, 102 N.E. 239; Packard v. Ill. Trust & Savings Bank, 261 Ill. 450, 104 N.E. 275.

A court of equity has power to break in upon the terms of a trust where necessary to preserve the trust property or to effectuate the main intention of the grantor of the trust.

Re Uphan, 152 Wis. 275, 48 L. R. A. (N. S.) 1004.

If trustees disclose a situation of their trust in which a slavish adherence to the terms of the trust will operate to wholly prevent the benefit intended by its creator, and they seek instructions and directions as to their duty, I think that instruction and directions for a course of conduct which, though differing from that prescribed by the terms of the trust, will actually carry out the intent of the creator, may well be grounded upon and sustained by the necessity of the case. The benefits intended for the beneficiaries are the main subjects of consideration. The modes in which those benefits may be attained are incidental, and necessity may require a change of mode to produce the intended effect. The power of the court may well be exercised in a case of evident necessity.

Pennington v. Metropolitan Museum of Art, 65 N.J.Eq. 11, 55 A. 468.

It is not doubted but that the powers of a court of equity are ample to prevent the destruction of the estate in remainder under the circumstances of this case. Rather than that the scheme of the creator of such estate shall entirely fail by reason of some circumstance not foreseen by him and provided for, the court may intervene, but only for the purpose of, and so far as necessary to, preserve the property.

Ruggles v. Tyson, 104 Wis. 500, 48 L. R. A., p. 812; Gavin v. Curtin, 171 Ill. 640, 40 L. R. A. 776; Marsh v. Reed, 184 Ill. 263, 56 N.E. 306, 48 L. R. A. (N. S.) 1006.

The doctrine seems to be well established that courts of equity may direct a modification of the terms of the trust when unforeseen conditions have arisen rendering it advisable in the interest of the beneficiaries to do so.

Johns v. Montgomery, 265. Ill. 21, 106 N.E. 497; L. R. A. 1916B, p. 1073, and note.

A court of equity has the power to do whatever is necessary to be done to preserve the trust from destruction, and in the exercise of this power it may, under certain unusual circumstances, modify the terms of the trust to preserve it but not to defeat or destroy it.

26 R. C. L., p. 1283, section 133.

OPINION

McGowen, J.

D. D. Low, resident citizen of Sharkey county, Mississippi, died on the 19th day of January, 1930. On the 28th day of December, 1929, he executed his will and trust agreement in which the First National Bank & Trust Company of Vicksburg, Mississippi, was named by him as executor and trustee of his estate. At the time of his death, he owned two valuable plantations containing three thousand two hundred acres of land, amply equipped with farming implements and live stock with which to cultivate open lands. The pleadings reflect that the lands are in a high state of cultivation with houses and all the set-up usual and incident to the operation of a Delta plantation.

Under authority of item 2 of the will, the executor operated the plantation for the balance of the year 1930, and continued the operation during the year 1931.

Items 2, 3, 4, 5, and 6 of the will read as follows:

"Item 2: If I should die at a period of the year too late to arrange for the renting of my real estate in Sharkey county, Mississippi, or at a period of the year when the crops on the land owned by me will be in process of cultivation, or will not have been harvested then and in that event my executor and/or trustee is authorized and empowered to expend such a sum or sums as may be necessary to make and complete the making, harvesting and marketing of said crops but in no event shall my executor and/or trustee operate said properties or any part thereof beyond another crop.

"Item 3. My executor and/or trustee is hereby authorized and empowered to rent, demise and lease for a period or periods beginning on or after the end of the calendar year of my death, my real estate holdings in Sharkey county Mississippi, for such a time and upon such terms and conditions and for such consideration as it may deem wise and to the best interest of my estate, and to continue to rent, demise and lease said real estate holdings for such periods and on such terms and conditions and for such consideration as it may deem wise and to the best interest of the estate so long as the said trustee may exercise control over the same.

"Item 4: I authorize and empower my said executor and/or trustee to sell and convey, with or without warranty, for cash or on such terms as it may deem to the best interest of my estate, and for such consideration as it may determine, all of the real estate of which I may die seized and possessed situated in Washington county, Mississippi.

"Item 5. I authorize and empower my executor and/or trustee to sell and to execute such bills of sale and other instruments necessary to convey and deliver all of the personal property which I may own at the time of my death, except such as is specifically bequeathed in this will. Said personal property need not be sold as a whole, but may be sold separately, and for such...