Simpson v. Millsaps

• Decision Date: 28 April 1902
• Citation: 31 So. 912,80 Miss. 239
• Court: Mississippi Supreme Court
• Parties: ORIN SIMPSON ET AL. v. REUBIN W. MILLSAPS ET AL

31 So. 912

80 Miss. 239

ORIN SIMPSON ET AL. v. REUBIN W. MILLSAPS ET AL

Supreme Court of Mississippi

April 28, 1902

FROM the chancery court of, first district, Hinds county. HON HENRY C. CONN, Chancellor.

Millsaps and others, appellees, were complainants in the court below Simpson and others, appellants, were defendants there.

Appellant filed their bill in the chancery court of Hinds county against appellees, in which they allege that they are legatees of the income of the estate under the will of the late W. H. Tribette, and that appellees are the trustees of said estate under the will; that by the terms of said will the income from certain bank stocks should be paid to them during their lives, and that the corpus of the estate went to other and different parties under certain circumstances; that the income was to go to one class and the corpus of the estate to another; that at the time of the death of said W H. Tribette, November 13, 1897, he owned certain shares of the Capitol State Bank of Jackson, worth at that time $ 194 per share; that at the meetings of the directors of the bank for each of the years 1899 and 1900 certain profits were carried to surplus, thus increasing the corpus of the estate and subsequently certain of these shares were sold for greatly more than their face value at the time of said W. H Tribette's death, and the entire sum was by the trustees carried to the credit of the corpus of the estate, instead of distributing the increased value as part of the income to complainants; that at the time of his death said Tribette owned shares of stock in the Planters' Bank at Clarksdale, which was also sold for a greatly increased amount over the value of same at the time of his death, and the entire amount was placed by the trustees to the credit of the corpus of the estate. The prayer of the bill is that the trustees be ordered to treat the excess of the value of these shares over their value at the death of W. H. Tribette as income, and distribute it as such to complainants. The defendants demurred to the bill on the ground that there was no equity on the face of the bill. The demurrer was sustained, and complainants appealed.

The following is the will of W. H. Tribette:

"Be it known, that I, W. H. Tribette, of Hinds county, Miss. do hereby make and publish my last will and testament, intending thereby to dispose of all my worldly estate of which I may be possessed at the time of my death. I give, devise, and bequeath unto R. W. Millsaps, Dr. Samuel S. Carter, and Eugene Simpson, all of Hinds county, Mississippi, and to their successors, all my estate, real and personal, of which I may die seized and possessed, upon the following trusts:

"Item First. Upon trust, to sell all my real estate of which I may die seized and possessed, whether owned by me in severalty or otherwise, as soon after my death as practicable, at all events, either by public or private sale, for cash or on credit, so as to change its nature from real to personal estate; and to make good and valid instruments of transfer thereof; and no purchaser shall be bound to see to the application of the purchase money or consideration paid therefor; and invest the proceeds thereof, after deducting the expenses incident to the sale thereof, in stocks, bonds mortgages, or other solvent securities; and the same, together with all my personal estate of which I may die possessed, to manage, control, invest, sell, and reinvest from time to time in other stocks, bonds, mortgages, or solvent securities so as to produce, if possible, a sure and regular income.

"Item Second. Upon the further trust to pay and distribute, in the manner and proportions as directed in item third of this will, the annual income derived from all of my estate, both that which I may die seized and possessed, and that which shall be acquired by my trustees with the proceeds arising from the sale of my said real estate, to and among the following designated persons, if living at the time of my death, and only to such of them as shall be living, to wit: My niece Florence E. Tate and her children, Isaac F. Tate, Eugene Simpson Tate, Willie J. Tate, Howard C. Tate, Chauncy G. Tate, Florence E. Tate, and Gracie J. Tate; my nephew George Trabue and his daughter, Rauza Fay Trabue; my nephew Otto Trabue and his children, Marion Rex Trabue and Maud Anna Trabue; my niece Meca Lou Ammon and her son, Fred Leo Ammon; my niece Daisy Trabue; my nephew Orin Simpson and his children, Ernest Lyle Simpson, Otto Simpson, Estelle Simpson, Will Simpson, Ward Simpson, Kern Simpson; my nephew Lawrence Simpson and his children, Stella Simpson and Roxa Simpson; my niece Elsie Ingels and her children, Birt Lee Ingels, Clarence Ingels, Ray Ingels, and Effie Ingels; my nephew Norman Simpson; my niece Carrie Coleman; my niece Henrietta Busby and her son, Paul Landon Busby--all of the above being residents of the state of Indiana; my nephew Theodore Landon and his children, Jesse Landon, Clide Landon, and Eugene Landon; my grandnephew Harry Collins; my grandniece Fannie Collins; my niece Minnie E. Tate and her daughter, Sibil Tate; my nephew Ernest Landon--all being residents of the state of Illinois; my nephew Ellis Landon and his daughter, Myrtle Landon, of Pennsylvania; my sister L. E. Landon, of Illinois; my sister M. M. Simpson, of Indiana; my nephew Eugene Simpson and his children, Ruth Simpson, William Simpson, Denton Simpson, and Eugene Hooker Simpson, of Mississippi; William H. Fitzhugh, Ida Bonner Fitzhugh, and Annie Hester, of Mississippi--all of whom I denominate 'Class No. 1' for convenient reference hereinafter; and also to and among the following designated persons, whom I designate as 'Class No. 2' for convenient reference hereinafter, to wit: Any child or children, grandchild or grandchildren, of each and all of said persons embraced in Class No. 1, provided such child or children, grandchild or grandchildren, be living during the life of any of the persons embraced in said Class No. 1, excepting any child or children, grandchild or grandchildren, of the said William Fitzhugh, of the said Ida Bonner Fitzhugh, and of the said Annie Hester from among the objects of my bounty--it being my intention to include as objects of my bounty in clause No. 2 only such persons as can lawfully take without violating the rule against perpetuities and remoteness.

"Item Third. To pay and distribute annually, at the end of each year after my death, the entire net income of my said estate to and among the persons embraced in said Class No. 1 and Class No. 2, as follows, to wit: First. To said M. M. Simpson and to said L. E. Landon each the sum of $ 300.00; to each person embraced in said class No. 1 and class No. 2 who is, at the time of each annual distribution, over the age of five years, and under the age of twenty-one years, and who shall have attended school within the year of such annual distribution, the cost of his or her tuition, text-books, and board while attending school, until such persons respectfully shall reach the age of twenty-one years. Second. To pay and distribute the rest and residue of said annual income to each of the other persons embraced in said class No. 1 and class No. 2 who is, at the time of each annual distribution, twenty-one years of age and upwards, share and share alike, per capita, and to each of those embraced in said classes No. 1 and No. 2 who is under the age of twenty-one years, as he or she shall reach that age at the time of such distribution, an equal share per capita with others of that age or upwards, except the said William Fitzhugh, Ida Bonner Fitzhugh, and Annie Hester, each of whom is to be paid only one-half the amount of the per capita share of each of the others hereinafter designated; but each of those who are under the age of twenty-one years shall, upon reaching that age, and if living at the time of the annual distribution, be paid out of the income for that year, before the per capita distribution for that year is made, one-half of the whole amount paid by my trustees for his or her tuition, text-books, and board while attending school, during his or her minority, which shall be in addition to his or her per capita share of such income. Upon the death of any of the persons embraced in said class No. 1 and No. 2 his or her share in said income shall cease, and the same shall go to swell the estate, so as to increase the per capita share of the survivors; it being my intention that the per capita share shall be increased by the death of each of the others, or diminished by the arrival at the age of 21 years of those who are under that age. The distribution of the income of my said estate shall be thus annually made until the time to commence distributing the corpus of said estate as designated in item four of this, my will, provided, as stated, that upon the death of each beneficiary herein before the time for distributing the corpus, his or her interest or share shall cease, and go to swell said income.

"Item Fourth. At the end of the fiftieth year from and after my death, if any of the persons embraced in said class No. 1 be then still living, upon the further trust to pay and distribute to and among the persons embraced in said class No. 1 and class No. 2 then living, and to the heirs then living of those of said class No. 2 who shall have died one-twentieth of the corpus of my said estate, together with any accrued and undistributed income, and one-twentieth of the corpus thereof annually thereafter at the end of each year, estimating the twentieth part upon the value of my said estate at the end of said fiftieth year, so that within twenty years after said fiftieth year the whole of my said estate shall have been finally distributed. The living...