Nobles v. Sanders
| Decision Date | 02 May 1979 |
| Docket Number | No. 51214,51214 |
| Parties | James H. NOBLES, Jr. v. Lenoir L. Owen SANDERS, Individually and Trustee of Estate of D. D. Low, Deceased. |
| Court | Mississippi Supreme Court |
Wells, Downey & Wicker, Calvin L. Wells, Rexford T. Brown, Jackson, for appellant.
McClure, McClure & May, James McClure, Jr., Sardis, for appellee.
Before ROBERTSON, P. J., and WALKER and LEE, JJ.
James H. Nobles, Jr., the 35-year-old grandson of D. D. Low, Deceased, appeals from the decree of the Chancery Court of Sharkey County, construing Items 9 and 11 of the Last Will and Testament of D. D. Low, deceased.
Low's Last Will and Testament was probated shortly after his death on January 19, 1930, and the trust provisions of Item 9 of the will, as influenced and affected by the spendthrift trust provisions of Item 11, had been construed as providing for the establishment of one overall Testamentary Trust with one Testamentary Guardian and six separate and distinct divisions thereof (a trust estate for each of the six minor children). The Estate operated under this construction and interpretation without objection from 1930 until July 11, 1977, when Petition for Construction of the Will, to confirm this construction of 47 years, was filed and appellant Nobles for the first time voiced his objections on September 7, 1977.
Appellant Nobles had shared in the net income from the estate of his grandfather since March 13, 1966, the date of the death of his mother, Martha Lee Low Nobles, one of the six children of D. D. Low. Appellant and his sister, Lenoir Low Nobles, a thirty-one year old ward of the court who is under a legal conservatorship, were the only children of their deceased mother, Martha Lee Low Nobles.
We think the unusual and tragic circumstances existing in the D. D. Low family at the time the will was prepared and executed had a great deal to do with its provisions, the language of which was at times quite specific but at other times became vague and ambiguous.
D. D. Low's wife, Sarah R. Low, died in childbirth in June of 1929, when William W. Low, their sixth child, was born. About three months after her death, in September, 1929, D. D. Low was seriously injured in an automobile accident. He was confined primarily in a Memphis, Tennessee, hospital from the date of the accident until his death on January 19, 1930. His will was prepared by W. H. Clements, an attorney of Rolling Fork, Sharkey County, Mississippi, and was executed by Low in the Memphis hospital on December 28, 1929, about three weeks before his death, with two medical doctors and a registered nurse as attesting witnesses.
At the time he signed his will, he was a widower and dying man, with six minor children ranging in age from 6 months to 16 years. His principal assets were two large plantations of about 1700 acres each in Sharkey County, Mississippi. Mississippi and the whole country were in the throes of the Great Depression of 1929.
Confronted with almost insurmountable and unsolvable problems, Low had to do the best he could to solve them in the short time he had to live. We believe that his paramount concern, overriding everything else, was to provide for his six minor children, already without a mother and soon to be without a father. He wanted to protect them and their children (if any they had in the future) from losing his and their estate, at least until the death of his last surviving child.
His Will consisted of 6 legal-size typed pages. Items 9 and 11 of the Will were construed by the court on the petition of the five surviving adult children of Low.
These two provisions provided and directed:
"ITEM 9. After the payment of all costs, expenses, taxes, upkeep and maintenance of my estate, I give, devise and bequeath all the rest and residue of my estate of which I may die seized and possessed unto The National City Savings Bank & Trust Company of Vicksburg, and its successor, as Trustee to be held under the terms, trust purposes and conditions set forth as follows, to-wit:
I nominate, constitute and appoint The National City Savings Bank & Trust Co. of Vicksburg, and its successor, as Testamentary Guardian for each of my six children, and I request that said Guardian, and its successor, as hereinabove provided, shall not be required to give bond for the faithful performance of its duties as such Guardian.
I further request that Mrs. Mattie Lee Kibler, aunt of my children, shall have their custody and control, and the allowance made for the maintenance, support, comfort and education of my children shall be paid over to her by said Guardian, taking her receipt therefor, and she shall not be required to account or report for her expenditures. In the event of her death I request her daughter, Ora Louise Kibler, to act in the same capacity and with like power and discretion. Upon the death or marriage of Ora Louise Kibler, I request my nephew, Rufus Hampton Low, to act in her place and in the same capacity, and with like power and discretion.
The Trustee shall set apart six separate and distinct trust estates, one for the sole benefit of each of my children, namely, Ollie Louise Low, Lenoir Dickson Low, Martha Lee Low, Sarah Ruffin Low, David D. Low, Junior, and William White Low. The net estate coming into the hands of the said bank as Executor and/or Trustee shall be set apart equally, as soon as possible in the trust estates herein created. The Trustee shall pay quarterly to the Guardian of any minor child, or to the person in whose custody any minor child is held any part or all of the net income from the respective child's trust estate, as is necessary in the sole discretion of the Trustee for his or her proper support, comfort, maintenance and education. In addition to the quarterly income payments, the Trustee shall have power and authority to use any part of the principal of each child's respective trust estate, if necessary, in the sole discretion of the Trustee, for his or her proper support, maintenance and education. As and when any daughter attains the age of twenty-one years, the Trustee shall then pay in equal quarterly installments to said daughter the net income from her respective trust estate as long as she shall live. As and when any son attains the age of twenty-one years, the Trustee shall then pay in equal quarterly installments to said son the net income from his respective trust estate as long as said son shall live. The Trustee shall, however, have power and authority to pay to any son all or any part of the principal of his trust estate should he need the same to invest in any business provided the Trustee in its sole discretion concludes that such an investment is meritorious, and that said son has shown proper business judgment to operate said business.
The issue of any deceased child to immediately take such child's trust estate, should he or she leave issue, or such deceased child's trust estate to be divided equally and added to the surviving children's trust estate, should he or she die without issue. Should my last surviving child die without issue, the amount of the trust estate shall be paid to my lawful heirs, according to the laws of descent and distribution in the State of Mississippi. A receipt from any Guardian, custodian or beneficiary thereof shall be a full discharge of the Trustee for what it represents.
ITEM 11. Neither the principal nor the income...
To continue reading
Request your trial
-
Maupin v. Perry's Estate
...of wills is that the intention of the testator should prevail. E. g., Rosenbaum v. Fliegelman, 375 So.2d 223 (Miss.1979); Nobles v. Sanders, 370 So.2d 703 (Miss.1979). However, we are unable, as the trial court was, to ascertain from the questioned clause and the evidence the intent of the ......