Merchants' Nat. Bank & Trust Co. v. Port Gibson Oil Works

• Decision Date: 18 April 1932
• Docket Number: 29845
• Citation: 165 Miss. 314,141 So. 283
• Parties: MERCHANTS' NAT. BANK & TRUST CO. v. PORT GIBSON OIL WORKS et al
• Court: Mississippi Supreme Court

141 So. 283

165 Miss. 314

MERCHANTS' NAT. BANK & TRUST CO. v. PORT GIBSON OIL WORKS et al

No. 29845

Supreme Court of Mississippi

April 18, 1932

Division A

1 WILLS. Phrase in will, "for use and benefit" of named beneficiary, is not synonymous with phrase "for support and maintenance" of such beneficiary.

Funds provided for "support and maintenance" of an Individual are limited to necessities and comforts of life for such individual in station in which he is accustomed to live, whereas funds "for his use and benefit" may be applied to much broader purposes.

2 TRUSTS. Trust estate created by will held subject to voluntary disposition or assignment of beneficiary subject to his debts.

The will provided that gift and bequest should not be delivered in person to beneficiary but should be placed in trust upon terms and conditions thereinafter set forth and held in trust for his use and benefit, but it also provided that one-tenth the principal sum and income from whole sum as it decreased from year to year should be delivered to beneficiary annually. Thus that there was nothing in will expressing intent of testatrix to impose restrictions on alienation of beneficiary's interest.

HON. J L. WILLIAMS, Judge.

APPEAL from chancery court of Warren county, HON. J. L. WILLIAMS, Judge.

Suit by the Merchants' National Bank & Trust Company against Port Gibson Oil Works and others. From the decree, the complainant appeals. Affirmed.

Affirmed.

Hirsch, Dent & Landau, of Vicksburg, for appellant.

A beneficiary may alienate a property right which he has received by will in accordance with the general rules which govern sales and conveyance of such interest in such properties, if there is no valid restriction in the will on such alienation.

2 Page on Wills, section 1399, p. 2327.

The language discloses that it was the purpose and intent of the testatrix to shield and protect this beneficiary and to prevent him from alienating, by assignment or otherwise, his contingent interest in this legacy. It is to go to him direct "for his use and benefit" if he shall live for the period of ten years and if not then "to his heirs share and share alike."

The general rule seems to be that the right of the cestui que trust to deal with his equitable interest, and to alienate or encumber it at his will is generally recognized.

28 Am. & Eng. Ency. of Law (2 Ed.), 1107.

The cestui que trust may bind by mortgage or deed of trust, or lawfully dispose of the trust estate without the assent of the trustee, unless forbidden in the instrument creating such estate.

Dibrell v. Carlisle & Humphries, 51 Miss. 785.

The very terms of the will under which the trust estate is held, if not expressly, certainly impliedly discloses that he is vested with no interest which he can lawfully dispose of and cause such funds to be disbursed or delivered to an independent third party who is or claims to be the lawful assignee of said funds when and if delivered.

A pecuniary legatee has such an equitable interest in the property of an estate that he may transfer it; the assignment may be by way of gift, and that the assignment may be of the whole or a part of the assignor's interest.

Chase National Bank of New York City v. Sayles et al., 11 F.2d 948, 48 A.L.R. 207.

Wynn & Hafter, of Greenville, for appellees.

A beneficiary or legatee may alienate a property right which he has received by will, and the right of alienation is considered an inseparable incident to the estate in fee.

28 R. C. L. 316, sec. 302.

The right of the cestui que trust to deal with his equitable interest and to alienate or encumber it at his will is universally recognized.

Page on Wills, sec. 1399, pages 2327, 2328 and 2329; 28 Am. & Eng. Enc. of Law (2 Ed.), 1107; 51. Miss. 785.

In many jurisdictions, a testator may create a spendthrift trust by disposing of his property so that it may be enjoyed by the recipient without liability to the latter's creditors.

28 R. C. L., sections 305 to 307.

A trust providing "the support and maintenance" of the beneficiary is not liable to seizure for the debts of the beneficiary, but any sum not required for the comfortable support and maintenance of the beneficiary is liable for the debts of the beneficiary.

Leigh v. Harrison, 11 So. 604.

Cestui que trust may assign, deal with and convey his equitable interest in trust property, and the trustee will be required to convey the legal title in accordance therewith, if such action is not contrary to statute or the terms of the trust.

26 R. C. L., sec. 112, page 1264.

There is a vital distinction between the wording used in the will "use and benefit" and the meaning of "support and maintenance."

The assignee can receive no greater interest than the assignors, at the time of the assignment, owned. The assignment does not attempt to transfer an interest different or more than the assignors owned.

OPINION

Cook, J.

Mrs. Fannie Willis Johnson died in the city of Vicksburg, Miss., on the 2d day of September, 1931, leaving a last will and testament, which was duly admitted to probate in the chancery court of Warren county on September 4, 1931, and letters testamentary were issued to Blanche Winter, T. W. McCoy, and the Merchants' National Bank & Trust Company of Vicksburg, the executors named in the will. The said national bank was also designated in the will as trustee and depository of the trust funds created by several items of the will.

The will contained many specific bequests and separate items, among these being items 45 and 76, which are as follows:

"Item Forty-fifth: I hereby give and bequeath unto Harry Vick Phelps, of the Town of Nitta Yuma, in Sharkey county, in the state of Mississippi, upon the terms and conditions hereinafter set forth, the sum of ten thousand dollars ($ 10,000.00). This gift and bequest shall not be delivered in person to Harry Vick Phelps but shall be placed, in trust, in The Merchant's National Bank and Trust Company of Vicksburg, upon the terms and conditions hereinafter set forth, and held, in trust, for his use and benefit. One-tenth of the principal sum, and the income from the whole sum as it shall decrease from year to year, shall be delivered to him annually. If said principal sum and the income therefrom shall not have been paid to him at his death the residue thereof shall go to his heirs, share and share alike."

"Item Seventy-sixth: It is my will, and I hereby direct, that all gifts and bequests herein referred to, item by item hereof wherein I have provided that such gift or legacy shall be placed in said The Merchants' National Bank and Trust Company of Vicksburg, and held by said The Merchants' National Bank and Trust Company of Vicksburg, in trust for the use and benefit of such beneficiary, such gift or legacy shall be kept and securely invested in high class bonds or other good securities or otherwise dealt therewith as I have directed, during the lives of said beneficiaries, respectively, as set forth in each of said respective items, and the net income derived from such investment, unless otherwise provided, shall be paid over to said designated beneficiary, during his or her life and at his or her death such gift or legacy so held, in trust, by said Bank for such beneficiary shall go to, and be paid over to, such person or persons, as I have in each of said items designated.

"I further direct that if and when this will shall become effective and my said executors or their successors shall have qualified and accepted the said executorship, before a delivery by my said executors of said gifts or legacies, to said The Merchants' National Bank and Trust Company of Vicksburg or its successor, in trust, for said beneficiaries respectively, an appropriate separate trust agreement as to each of said items, if my said executors shall so desire, shall be drawn and executed by and between said bank and the respective beneficiaries in each of said items hereinbefore designated, evidencing an acceptance of said gifts or legacies upon the terms and conditions set forth in each of said items, and said gifts or legacies thereafter shall be dealt with as I have herein provided. If any or all of such legatees or beneficiaries shall not desire to accept such gifts or legacies on...