National Bank of Greece v. Savarika

• Court: Mississippi Supreme Court
• Writing for the Court: Anderson, J.
• Citation: National Bank of Greece v. Savarika, 167 Miss. 571, 148 So. 649 (Miss. 1933)
• Decision Date: 05 June 1933
• Docket Number: 30652
• Parties: NATIONAL BANK OF GREECE et al. v. SAVARIKA et al

148 So. 649

167 Miss. 571

NATIONAL BANK OF GREECE et al. v. SAVARIKA et al

No. 30652

Supreme Court of Mississippi

June 5, 1933

Division B

Suggestion Of Error Overruled, July 7, 1933.

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

Proceeding between the National Bank of Greece and others and Constantine Savarika and others. From the decree, the first designated parties appeal. Affirmed.

Affirmed.

W. C. Wells, III, J. Morgan Stevens, Wells, Jones Wells & Lipscomb and J. M. Stevens, Jr., all of Jackson, for appellants.

The former decrees as rendered in this cause ordering citation to issue to all heirs at law and all other parties having or claiming any interest, the publication or process upon said order, and the decree subsequently rendered adjudicating that the heirs at law have no interest in the estate, are final and conclusive and forever preclude the alleged heirs at law from intervening and claiming the funds now in court.

3 Am. Law Admr. (Woerner 3 Ed.), pp. 1750 and 1756; Burkitt v. Burkitt, 33 So. 417, 81 Miss. 593; Gillespie v. Hauenstein et al., 17 So. 602, 72 Miss. 838; Humphreys v. Stafford, 13 So. 865, 71 Miss. 135; Carter v. Kimbrough, 84 So. 251, 122 Miss. 543; Corinth Bank v. Nixon, 144 Miss. 674; Connell v. Cazenueve, 81 So. 793, 120 Miss. 567; McIntosh v. Munson Road Machinery Co. et al., 145 So. 731; Ledyard v. Henderson-Terry Co., 46 Miss. 260; McDonald v. McDonald, 68 Miss. 689, 9 So. 896.

It is well settled in this state that where a judgment of a court of general jurisdiction is attacked collaterally, unless the contrary affirmatively appears from the record, all jurisdictional facts are conclusively presumed to have existed whether there are recitals in the record to show them or not; and this rule applies although the judgment attacked was rendered by default on constructive service of process alleged to be defective.

Carson v. Carson, 31. Miss. 578; Cotton v. Harlan, 87 So. 152, 124 Miss. 691; Colley's Constitutional Limitations, 406; Ames v. Williams, 72 Miss. 760, 17 So. 762; Gillespie v. Hauenstein, 17 So. 602, 72 Miss. 838; Vicksburg Grocery Co. v. Brennan, 20 So. 845; Allen v. Dicken, 63 Miss. 91; Kelly v. Harrison, 69 Miss. 856, 12 So. 261; Wentworth v. Flowers et al., 139 So. 624, 163 Miss. 39; Hatley Mfg. Co. v. Smith, 123 So. 887, 154 Miss. 846.

The validity of and the administration of the trust must be determined by the laws of Greece and, therefore, it is the duty of this court to transmit the funds to the foreign trustee selected by the testator.

5 R. C. L., Charities, par. 103; 11 C. J. 380; Wade et al. v. American Colonization Society, 7 S. & M. 663; Hope v. Brewer, 18 L. R. A. (N. S.), p. 458; Doty v. Hendrix, 16 N.Y.S. 284; 2 L. R. A. (N. S.), p. 456; 20 American & English Annotated Cases, pp. 866 and 868.

Where the charity is to be established abroad and is to be executed by persons there, the court not having any jurisdiction to administer, it will simply order the money to be paid over to the proper persons in the foreign country.

Mount v. Tuttle (N. Y.), 76 N.E. 873, 2 L. R. A. (N. S.) 428.

It should be remembered and we emphasize the point that no attack is made upon the validity of the will as a legal testamentary document. Its validity is recognized. It has been admitted to probate and has been executed with the exception of the payment over of the residuum. We also emphasize the point that there is nothing unlawful about the bequest here involved. Our court has expressly upheld a testamentary gift of personalty to a school in Mississippi.

Blackburn v. Tucker, 72 Miss. 735, 17 So. 737; Greely v. Houston, 148 Miss. 799, 114 So. 740; Hailey v. McLaurin's Estate, 112 Miss. 705, 73 So. 727.

The bequest comes clearly within definition of a public charity and should be zealously enforced by a court of equity.

5 R. C. L. 291; 11 C. J. 307, 317, 371; Crow v. Clay County, 196 Mo. 234, 95 S.W. 369; Green v. Blackwell, N. J. Vhsn., 35 A. 375; Philodelphia Baptist Association v. Hart, 4 L.Ed. 499; Jackson v. Phillips, 96 Mass. 539; McDonough's Executors et al. v. Murdoch et al., 14 L.Ed. 732; Russell v. Allen, 27 L.Ed. 397; Attorney General v. George A. Briggs et al., 164 Mass. 561; Sears et al. v. Chapman et al., 158 Mass. 400; Bolick et al. v. Cox et al., 145 Ga. 888; Tarver v. Weaver et al. (Ala.), 130 So. 209; Town of South Kingstown v. Wakefield Trust Co. (R. I.), 134 A. 815, 48 A. L. R. 1122; St. Mary's Academy of Sisters v. Solomon (Colo.), 42 A. L. R. 967; Parks v. Northwestern Univ. (Ill.), 2 L. R. A. (N. S.) 556, 4 Ann. Cas. 103; 5 R. C. L., pars. 55, 56; Henry v. Stanton (6 R. C. L., Sup. 55), 147 N.E. 305.

The learned chancellor was manifestly wrong in holding that the beneficiaries are too indefinite.

The legacy is not directly to an indefinite class, but directly to a trustee invested with discretionary power to take the money as an endowment fund, and to hold it and invest and reinvest "to the end that the endowment herein made, may effectually be carried out."

The uncertainty of the beneficiary is the very reason why a trust of this nature is put into the hands of trustees, and one of the very reasons why it is upheld.

Beatty & Ritchie v. Kurtz (U. S.), 7 L.Ed. 521; City of Cincinnati. v. The Lessee of White, 8 L.Ed. 452; Bartlett v. Nye, 45 Mass. (4 Met.) 378; Inglis v. Trustees of the Sailors' Snug Harbor, 3 Peters, 7 L.Ed. 617; Vidal v. Girard's Executors, 2 Howard, 127, 11 L.Ed. 205; 3 Pomeroy (4 Ed.), para. 1018, p. 2264.

A testamentary gift of personalty to a school is expressly upheld in Mississippi in the following cases:

Blackburn v. Tucker, 72 Miss. 735, 17 So. 737; Greely v. Houston, 138 Miss. 799, 114 So. 740; Haily v. McLaurin's Est., 112 Miss. 705, 73 So. 727.

The trustee named in the will is active trustee and not mere depository, and is vested with discretionary powers to administer the trust.

5 R. C. L., pp. 347, 389 and 390; Zollmann's American Law of Charities, pp. 260 and 262; Sparks et al. v. Woolverton, 210 Ala. 669, 99 So. 102; Attorney-General v. Goodell, 180 Mass. 538; Mignon v. Grand Prairie Seminary, 70 Ill.App. 575; People v. Cryswell, 113 Cal. 134; Dye v. Beaver Creek Church, 48 S.C. 444; Martinson v. Jacobson, 205 N.W. 849; Wood v. Paine et al., 66 F. 807; Duggan v. Slocum, 83 F. 244; Butterworth et al. v. Keeler et al., 154 N.Y.S. 744, 169 A.D. 136 (affirmed 219 N.Y. 446, 114 N.E. 803).

Boarman v. Catlett, 21 Miss. 149, is cited as authority that the Statute 43 Elizabeth formed no part of the law or jurisprudence of this state. This case does hold that under the ordinances organizing the Mississippi Territory and the Constitution of 1817, all English statutes are excluded from operation in this state and only the common law and the statutes of our own government adopted for the determination of the rights of the citizens. We do not interpret this particular decision as at all dealing with equity jurisdiction as understood under the English system, and we have cited authorities in our brief in chief, including an opinion by the Supreme Court of the United States, to the effect that even prior to the enactment of the statute of 43 Elizabeth, equity assumed jurisdiction over legacies and trusts of this nature, and that the statute was merely in recognition of this jurisdiction more properly defining the jurisdiction itself. It simply gave recognition to existing jurisdiction, and under the Constitution of Mississippi the chancery court has jurisdiction of all matters of equity as known, interpreted, and exercised by the English Chancery system.

Ancient and Accepted Scottish Rite of Freemasonry v. Board of County Commissioners of Lancaster County, 81 A. L. R. 1166.

Howie & Howie, of Jackson, for appellees.

The appellants now seek to rely upon a former proceeding in this cause which is referred to in their original petition here, but which is not properly pleaded therein, in order to be taken advantage of at this time. They simply referred to the former petition of I. W. Cooper and the decree thereon made, and asked that it be considered a part of their petition without copying it into or making it an exhibit, or incorporating it into their petition.

Section 193, Griffith's Mississippi Chancery Practice.

The petition in evidence does not show to have ever been filed at any time until it was offered in evidence by the appellees on the trial of this cause on its merits in the court below.

Sections 1718, 1738, 2972 and 2975, Code of 1930; Fernwood Lbr. Co. v. Meehan-Rounds Lbr. Co., 85 Miss. 54, 37 So. 502; Hume v. Inglis, 122 So. 536; Belt v. Adams, 87 So. 666; Mercantile Acceptance Corporation v. Hedgpeth, 112 So. 874; Eminent Household of Columbian Woodmen v. Lundy, 71 So. 16; Belt v. Adams, 86 So. 587; Houston v. Black, 14 So. 530; McCray v. McCray, 102 So. 174; Mays Food Products, Inc., v. Gloster Lbr. Co., 102 So. 736; Ex parte Latham, 136 So. 625; Oliver v. Baird, 44 So. 36; Duncan v. Gerdine, 59 Miss. 555; Ponder v. Martin, 80 So. 388; Diggs v. Ingersoll, 28 So. 825; Moore v. Summerville, 31. So. 794.

We submit that the chancellor who rendered the first decree was in best position to know what had transpired and what the record showed when the matter was called to his attention on petition for permission to interplead herein. He held among other things as shown by his opinion, that if the legacy had lapsed that the heirs would not be bound by the former decree.

We submit that if the appellees are barred by the former decree that the court would then be going in a circle. We would have the finding on the facts showing that the Constantine Menelas School for Girls, the original donee claimed in the petition to have ceased to exist according to the...