Mayes v. Mayes

• Decision Date: 22 October 1923
• Docket Number: 23235
• Court: Mississippi Supreme Court
• Parties: MAYES v. MAYES et al

97 So. 548

133 Miss. 213

MAYES v. MAYES et al

No. 23235

Supreme Court of Mississippi

October 22, 1923

Division A

(Division A.) January 1, 1920

1 WILLS. Trust devise for support continues although subsequent to testator's death beneficiary becomes possessed of independent income.

A devise in trust for the support of the testator's daughter until her death or marriage continues until the happening of one of those events, although after the death of the testator the beneficiary of the trust comes into the possession of an independent income sufficient for her support.

2 TRUSTS. Sale of trust property for reinvestment not decreed unless necessary to accomplish purpose of trust or prevent loss or destruction.

A court of equity will not decree the sale of trust property for the reinvestment of its proceeds although the value of the trust estate will be thereby increased unless so to do is necessary to accomplish the purpose for which the trust was created or to prevent the loss or destruction of the trust estate.

HON. V J. STRICKER, Chancellor.

APPEAL from chancery court of Copiah county, HON V. J. STRICKER, Chancellor.

Suit by John Lanier Mayes against John B. Mayes and others. From an order sustaining demurrers to the bill, plaintiff appeals. Reversed and remanded.

The following is a copy of the will referred to in the opinion:

"The State of Mississippi, Copiah County.

"I, Herman B. Mayes, of the said county and state, being of lawful age and of sound and disposing mind, do make and publish this my last will and testament, revoking all others.

"Item First. I direct that my just debts be paid by my executor, hereinafter named, out of my estate.

"Item Second. My will is that after the payment of my just debts the whole of my property remaining, real and personal, of every kind, be kept together undivided until hereinafter provided, under the control, management and direction of my executor, as such and as a trustee, to whom I hereby devise and bequeath the same, in trust, nevertheless, in the manner and for the purpose as follows, to-wit: The property and estate so devised and bequeathed to stand charged, as well the body as the income thereof, primarily with whatever sum or sums necessary for the comfortable support and maintenance of my beloved wife, Charity Mayes, and my daughters Mary Jane and Alice and my son William, for and during the term of their lives, and to remain thus charged to the measure and extend of such comfortable support and maintenance and the measure of the estate for them and each of them and the survivor of them.

"Item Third. It is my will that after the death of my said wife when the number of those provided for in the second item hereof shall be reduced to two or less by death, or by marriage of my said daughters or either of them, and the condition of my estate and the objects secured in the said second item will justify, my executor shall make such division of the property then on hand, not trenching on the support of those remaining of the persons mentioned in the said second item, as may be just and practicable, dividing according to the law of distributions, giving equal shares to my surviving children and to the descendants of a deceased child the parent's share; and on the death of the last survivor of those mentioned in the second item, a complete or further division shall be made, it being my will to postpone a division of my estate until the objects set forth in said second item of this will shall have been secured.

"Item Fourth. It is my will that upon the marriage of one or both of my daughters mentioned in the said second item, that the provision for her support shall cease, and such daughter shall thereafter only be entitled to her share of the estate as may fall to her on a division thereof as hereinbefore provided.

"Item Fifth. It is my will that my beloved wife shall possess and enjoy the use of the dwelling house in which I now reside in Hazlehurst, for and during her life for herself as a home, and as a home for such of the children mentioned in said second item as may choose to remain with her, as a right in her and them; and should it be found necessary or expedient, my said wife shall be provided in any event out of my estate with a home during her life.

"Item Sixth. I appoint my son, John B. Mayes, executor of this my will and trustee for the objects herein declared, and empower and direct him in providing for my debts, to dispose of such property for that purpose as may not be yielding increase by interest, rents, or other issues, giving him power without application to any court, to sell such property for such purpose at public or private sale; and I hereby empower him, for the general objects herein declared and to the end of increasing and making more certain the income from my estate, to improve the property, to lease and sell the same at public or private sale, for reinvestment for the purposes of this my will, without application to any court, having confidence in his judgment and integrity and intending to give him ample power of management and control and direction of my estate, in order the more effectually to secure objects set forth in the provisions of this my will.

"And lastly it is my will and desire that no bond shall be required of him for the faithful performance of his trust."

Decree reversed and cause remanded.

Hugh C. Watson, for John B. Mayes, one of appellants.

I. NATURE OF ESTATE IN APPELLANT AND RIGHT TO SUE. The estate in appellant and in all of the children of the testator, not specially favored by Item Two of the will, is an estate in remainder, in the corpus of the estate; and the remainder thus created is vested and not contingent. 2 Coke on Littleton, sec. 446, page 265-A, Note 2, Butler and Hargraves Ed. ; Donner v. Fortesque, 3 Atk. 123-135; 1 Coke Inst., page 143-A; 1 Fearne on Remainders, bottom pages 216 and 217; Blackstone's Commentaries, Book 2, page 168; Re Washburn's Estate, 11 Cal.App. 735, 106 P. 415; Alexander's Commentaries on Wills (1919), section 1003, page 1455, section 1004, page 1458; Croxall v. Sherrard, 5 Wall. (U.S.) 268-288, 18 L.Ed. 572. In this case, the supreme court of the United States, in distinguishing between a vested and a contingent remainder, says: "It is the present capacity to take effect in possession, if the precedent estate should determine, which distinguishes a vested from a contingent remainder."

II. POSTPONEMENT OF ENJOYMENT ONLY, DOES NOT MAKE REMAINDER CONTINGENT. 2 Alexander on Wills, sec. 1005, pages 1458-1459.

III. REMAINDER WILL BE CONSTRUED, IF POSSIBLE, AS VESTED RATHER THAN CONTINGENT. 2 Alexander on Wills, sec. 1007, pages 1461, 1462, and 1463.

IV. POWER OF DISPOSITION IN LIFE TENANT DOES NOT MAKE REMAINDER CONTINGENT. 2 Alexander on Wills, section 1011, pages 1466, 1467, and 1468.

V. It makes no difference as to the vesting of a remainder whether the legal estate be devised to trustees to convey according to the directions of the will, or whether the interest takes effect without their intervention; nor is it material whether the trust provides for the accumulation of income until the period of payment or distribution. 2 Alexander on Wills, section 1012, page 1468. The Mississippi rule is to like effect. Scottish American Mortgage Company v. Buckley, 81 Miss. 599, 33 So. 416.

VI. RIGHT TO SUE. Appellant had such a vested estate in himself as entitled him to sue for the purpose of having the will construed. Owens v. Waddell, 87 Miss. 310, 39 So. 459; Long v. Mayes, 94 Miss. 735-759; Schouler on Executors (3 Ed.), secs. 472-473; 1 Pomeroy Eq. Jur. (4 Ed.), sec. 171, top of page 214 and sec. 351, top of page 650; Mississippi Code of 1906, section 2137, Hemingway's Code, sec. 1805.

VII. POWERS AND DUTIES OF TESTAMENTARY TRUSTEES. The original trustee was given very large powers by the testator, including those of disposition, investment, and re-investment, without application to any court and without requiring bond of him. Appellant contends that the powers vested in the original testamentary trustee were of special trust and confidence in the son there appointed to that trust, and that such powers did not pass to the succeeding trustee appointed by the court. 40 Cyc. 1835, latter part section 4-a; Page on Wills, sec. 692, page 832.

VIII. POWERS IN TRUST DO NOT DEVOLVE TO ADMINISTRATOR WITH WILL ANNEXED. Whittaker v. McDowell, 72 A. L. R. 938 (Conn.); Osborn v. Gordon, 86 Miss. 95, 56 N.W. 334; Pratt v. Stewart, 49 Conn. 339-341; Perry on Trusts section 496; Eastick v. Smith (1904), 1 Ch. note 1, page 144; Cole v. Wade (1807), 16 Ves. Jr. 27, at page 44; Coke Litt. 133; 1 Sugd. on Pow. 144. Nor has this rule been changed by the statute, which appears in section 113, 671, of the Hutchinson Code, and has been brought forward substantially in section 2013 of the Code of 1906, and section 1678 of Hemingway's Code. This statute only applies in cases where the testator absolutely directs a sale of lands to be made by his executors without leaving them any discretion in that particular, but it does not apply in cases where discretion as to whether a sale shall be made at all or not, is vested in the executors. In the former class of cases, the powers of sale pass to the succeeding executors and trustees with the office, while in the latter class of cases they do not. Bartlett v. Southernland, et al., 2 Cushman, 403; King v. Talbert, 36 Miss. 367; Cohea v. Johnson, 69 Miss. , 13 So. 40. The will of the testator in the instant case makes it perfectly clear that the trust and powers bestowed upon his son as executor and trustee were of special trust and confidence in him. Schouler on Executors (3 Ed.), secs. 472-473; Pomeroy's Equity Jurisprudence (4th Ed.), secs....