Meyer v. Meyer

• Decision Date: 23 February 1914
• Citation: 64 So. 420,106 Miss. 638
• Court: Mississippi Supreme Court
• Parties: MEYER et al. v. MEYER et al

64 So. 420

106 Miss. 638

MEYER et al. v. MEYER et al

Supreme Court of Mississippi

February 23, 1914

October 1913

APPEAL from the chancery court of Lauderdale county, HON. SAM WHITMAN, JR., Chancellor.

Exceptions to the account of Joe and Sam Meyer as executors of the estate of Jacob Meyer, deceased, by Mrs. Sarah Meyer and others. From a decree overruling the exceptions and dismissing the bill, the exceptors appeal.

The facts are fully stated in the opinion of the court.

Decree reversed and cause remanded.

S. A Witherspoon, Jr., attorney for appellants.

G. Q Hall, Hall & Jacobson and McBeath & Miller, attorneys for appellee.

The record in this case has been lost.

OPINION

SMITH, C. J.

This is an appeal from a decree overruling certain exceptions to annual and final accounts of Joe and Sam Meyer, executors under the will of Jacob Meyer, deceased, and dismissing an original bill filed by the exceptors against Joe and Sam Meyer, executors, and A. H. George, involving the same matters contained in some of the exceptions and which was consolidated therewith and tried as one cause.

Jacob Meyer died in 1900 leaving a considerable estate, consisting principally of his interest in the mercantile firm of Winner & Meyer. By his will he: (1) Appointed his three sons, Joe, Sam, and Mattimore Meyer, his executors; (2) devised his residence to his wife, Mrs. Sophia Meyer; (3) provided that the business of Winner & Meyer be continued during the lifetime of his wife, Mrs. Sophia Meyer, and that his interest therein be managed and conducted by his executors, they to receive such compensation for their services therefor as might be agreed upon by them and M. Winner, the surviving partner; (4) in the language of the will, "that one-half of the profits arising out of my interest of the firm Winner & Meyer, including both real and personal property, be paid or credited equally to my three sons, Joseph Meyer, Mattimore Meyer, and Samuel Meyer, as heretofore, the other half of the profits to be credited to my estate;" (5) that upon the death of his wife, all his real and personal property then undivided be equally divided among the following persons, Joseph Greenwald, Mrs. Sidonia Baum, Mrs. Amuella Cohen, Sam Greenwald, Joseph Meyer, Mattimore Meyer, Samuel Meyer, Miss Hettie Meyer, Miss Jeanette Meyer, and Miss Lillie Meyer; (6) that in the event his executors and partner, M. Winner, should deem it to the best interest of the firm of Winner & Meyer to sell any of the real estate owned by the firm, then for the purpose of making those transfers the title to all of his interest in the real estate owned by the firm of Winner & Meyer is vested in the executors, who shall credit the proceeds of his estate or reinvest in other real estate for the benefit of the persons hereinabove mentioned; (7) that in case of dissolution of the firm of Winner & Meyer before the death of his wife, Mrs. Sophia Meyer, that his executors wind up his estate as soon as possible, within two years if they can do so, if not, as soon as they can do so without material injury to the interest of his estate; (8) that all of his estate outside of the interest in the firm of Winner & Meyer be equally divided among the same ten persons hereinabove mentioned.

Mattimore Meyer married Sarah, a daughter of M. Winner, and died on June 17, 1903, leaving surviving him his widow and several minor children, to whom he devised and bequeathed all of his property, both real and personal; this widow and children being the exceptors and complainants herein.

The firm of Winner & Meyer continued in existence until January, 1904, when it was dissolved by mutual consent. In the division of the property belonging to this firm, M. Winner was given, among other of its assets, its stock of dry goods and certain real estate, and Joseph and Sam Meyer, executors, were given, among other of its assets, the stock of groceries and certain real estate, with which they opened up and have continued to conduct a grocery business in the name of Meyer Bros. This business was conducted in one or more of the buildings turned over to them in the distribution of the property formerly owned by Winner & Meyer, and embraced in the deeds to and from A. H. George hereinafter mentioned. They have also used in this business money and other property of the estate of Jacob Meyer coming into their hands as the executors thereof. It seems that Winner and these executors were unable to agree upon a complete division of the property of the firm, and that a bill for a dissolution and winding up of the partnership was filed by M. Winner, his daughter, Mrs. Sarah Meyer, and her children; the real property here in controversy being therein listed as the property of the firm, which litigation was ended by an agreed decree being entered. While this litigation was pending, a deed was executed by M. Winner and these executors to A. H. George to the real property in controversy and which was then being used by the executors in the business of Meyer Bros. and by this agreed decree the title of A. H. George thereto was confirmed. Immediately upon the execution to him of this deed, A. H. George reconveyed the property to Joe and Sam Meyer in their own right; the recited consideration in each deed being thirty-nine thousand dollars. Nothing, in fact, was paid for either of these conveyances; the executors simply charging themselves, several years thereafter, with the sum of thirty-nine thousand dollars received from the sale of real estate. The deeds to and from A. H. George were simply devices to enable the executors to obtain the legal title to the property. Mrs. Sophia Meyer, widow of Jacob Meyer, died some time after the dissolution of the firm of Winner & Meyer.

Numerous exceptions were filed to the final account of these executors, but we will consider those only which are here pressed, to wit, first, third, fifth, sixth, thirteenth, and fourteenth. In considering these exceptions we will omit from consideration the fact that three of these exceptors are minors, since the result reached by us would be the same if they were adults.

First exception: By this exception and their bill in equity the exceptors challenged the purchase by the executors of the real estate of Jacob Meyer, deceased, and prayed, in the language of appellant's brief, that "the charge of thirty-nine thousand dollars against the executors in their supplemental final account be held to be entirely incorrect, and that the two deeds, one from the executors and M. Winner to A. H. George, and the other from A. H. George to Joe and Sam Meyer as individuals, be declared fraudulent and void and he canceled and held for naught, and that the real estate be ordered to be sold by the court at public sale, and the proceeds divided among the devisees of the estate of Jacob Meyer, and that Joe and Sam Meyer be decreed to pay rent for the use of said real estate to the estate they are administering from March 3, 1904, up to the present time."

It is not necessary for us to decide whether M. Winner and these executors had the right under the will to make a bona fide sale of this property to a third person for the reason that the sale to George was not such. It is clear that this land had been set apart at the dissolution of the firm of Winner & Meyer to the estate of Jacob Meyer, and these executors, being desirous of acquiring it for themselves, admittedly used George as a mere channel for conveying the title from them as executors to them as individuals, to do indirectly that which they could not do directly, to wit, purchase from themselves land belonging to the estate then being administered by them, and therefore they must be held to hold the title to the property in trust for the persons interested in the estate. McGowan v. McGowan, 48 Miss. 553; Chapman v. Sims, 53 Miss. 154; Buckingham v. Wesson, 54 Miss. 526; Wooldridge v. Campbell, 61 Miss. 634.

Whether or not thirty-nine thousand dollars was a fair valuation for the land, as well as the presence or absence of a fraudulent intent on the part of the executors in purchasing the land, is wholly immaterial.

It is contended, however, by the executors that M. Winner, as surviving partner of the firm of Winner & Meyer, had full power to convey the land, or at least an equitable title thereto, to George, and that therefore the sale to him should be held to be valid. A sufficient answer to this contention is that Winner did not administer the partnership property under the provisions of section 2085, etc., of the Code, but the partnership was continued in force and its affairs managed solely under the provisions of the will.

Another of their contentions is that the sale to George was confirmed by the decree entered in the partnership dissolution proceedings, and therefore that all inquiry into the matters here under investigation has been thereby closed. It may be conceded for the sake of argument that the validity of the deed to George is res adjudicata, and still the result must be the same. At most, all that could be claimed for the executors in this connection is that they sold the land to George and repurchased it with money belonging to the estate; they therefore, even under that construction of their acts, hold the land in trust for the estate, if the persons interested therein so elect. Buckingham v. Wesson, 54 Miss. 526; Cooper v. Cooper, 61 Miss. 676.

It follows from the foregoing views that this exception should not have been overruled, nor the bill dismissed. It will not be necessary, however, for the deeds to be canceled. It will simply be necessary for the court to decree the land to be held in trust and order its sale or partition. Chapman v. Sims, 53 Miss. 154.

Third...