Wirtz v. Gordon

• Decision Date: 13 November 1939
• Docket Number: 33433.
• Citation: 187 Miss. 866,192 So. 29
• Court: Mississippi Supreme Court
• Parties: WIRTZ et al. v. GORDON et al.

192 So. 29

187 Miss. 866

WIRTZ et al. v. GORDON et al.

No. 33433.

Supreme Court of Mississippi, In Banc.

November 13, 1939

.

Appeal from Chancery Court, Sunflower County; J. L. Williams Chancellor.

On suggestion of error.

For former opinion, see 184 So. 798.

Everett & Everett, of Indianola, W. W. Venable, of Clarksdale, and Chas. H. Watson, of Chicago, Ill., for appellants.

Moody & Davis and Elbert Johnson, all of Indianola, for appellees.

McGEHEE, Justice.

On suggestion of error, the former opinion herein, as rendered by Division B and reported in 184 So. 798, was withdrawn, the judgment thereon set aside, and the cause remanded to the docket and argued before Division A. Thereafter the case was considered by the Court in banc, and with the result that the said former opinion and judgment are reinstated and adopted by the Court in banc as the decision and judgment of the Court. Consequently, the decree of the court below is reversed, and decree rendered here for the appellants.

Reversed and decree here for the appellants.

ETHRIDGE Justice (dissenting).

I am wholly unable to agree with the opinion in this case; I think the opinion of the majority will create considerable confusion in matters involving estates and mortgages or deeds of trust. The proceedings set up in this case to bar the complainant's right to a partition of the lands cannot in my judgment, be properly entertained for that purpose. The bill filed by Ann. F. Gordon simply sought a partition of lands owned by her father at the time of his death, which were encumbered by a deed of trust executed by her father and mother upon the lands described. Her father had made a will, constituting his wife executor and testamentary guardian of his two minor daughters, one of whom was the complainant, Ann Faison Gordon, who at the time of the said foreclosure proceedings of the deed of trust was a minor, her mother being her guardian and also the executor of the estate of the minor's father; she had qualified as such executor, and probated claims in excess of the $10,000 probated against the estate of E. H. Faison, deceased.

It will be necessary to set forth the terms of the will, and the allegations of the bill filed by the complainant, Ann F. Gordon (née Faison), and pertinent provisions of the deed of trust, and the nature of the proceedings by which the deed of trust was attempted to be foreclosed in chancery. The will reads as follows:

" I, E. H. Faison, over the age of twenty-one years, of sound and disposing mind and memory but knowing the uncertainty of human life, do hereby make, declare and publish this my last will and testament.

" Item One. It is my desire my just debts, including the expenses of my last illness and burial, be paid by my executrix, hereinafter named, without resort to the courts, if possible.

" Item Two. I give, devise and bequeath to my wife, and children, living at my death, share and share alike, all of my property, real, personal and mixed, in possession and expectancy and wheresoever situate, subject to the conditions hereinafter mentioned.

" Item Three. I direct that all of the property, herein devised, be held and used by my said wife and children in common, unless or until my said wife shall marry, or one or more of my children shall become of age, or marry, upon the following express terms and conditions, viz:

" a. Should my wife marry then I direct that the property herein devised, shall be partitioned and the share of my wife and children set aside and allotted to each of them, respectively.

" b. Should any of my children become of age, or marry, then the share of such child in and to the property, herein devised, shall be allotted and set apart to such child, and this process continue until such child shall become of age, or marry. If, however, my wife should marry before the share of each child shall be allotted and set aside, as herein provided, the said property shall be partitioned, allotted and set aside to each, as provided in subdivision a, above.

" c. In the event the property, herein devised, shall be allotted and set aside to my children, as herein provided, the property, thus set aside and allotted to each of them, shall be freed from the control of the other devisees herein, as well as the provisions of this last will and testament.

" d. In making the partition and allotment, as herein provided, I prefer that the property set aside and allotted to each child, as such child's respective share of the property, herein devised, be unencumbered real property, if the same can be done without detriment to the interest of all parties concerned.

" Item Four. I hereby appoint my said wife, Gertrude H. Faison, executrix of this my last will and testament, and expressly provide that she shall not be required to give bond as such, or account to any court whatever for her actions in the premises.

" Item Five. So long as my said wife shall remain unmarried, and not afterwards, I hereby expressly confer on her, as executrix, as to any and all of the property herein devised, the following powers, as to which she, and she only, is vested with full and complete discretion both as to the construction and exercise thereof, to-wit.

" a. To use any and all money, from whatever source derived, for the support and maintenance and education of herself and children.

" b. To rent, operate or cultivate all or any part of the lands herein devised, by such method and manner as she may deem best, and use the proceeds thereof for any purpose she thinks proper, though I trust that she will, at all times keep on hand sufficient money for all emergencies.

" c. To sell and convey, by warranty deed or otherwise, any land that she may think necessary to pay off and discharge any indebtedness constituting a lien on all or any part thereof, or any other purpose.

" d. To borrow money for the purpose of discharging any indebtedness, constituting a lien on any of the property herein devised, to operate and cultivate the plantation, or in fact for any purpose she deems advisable, execute note or notes evidencing the amount or amounts thus borrowed, and secure the payment thereof by executing a mortgage, deed of trust or other contracts on all or any part of the property, herein devised, real, personal and mixed.

3. Any deed, mortgage, deed of trust or other contract, affecting the title to all or any part of the property, herein devised, executed by my said wife, as executrix, shall be held and deemed as conclusive evidence that this last will and testament vested in her full and complete power to execute the same, and the property affected thereby shall be fully bound to the same extent as if legal title thereto had been vested in her.

" Item Six. In making this last will and testament it is my sole purpose to fully protect, as far as possible, my beloved wife and children, and I fully trust her to carry out my intent, in letter and spirit, as herein expressed.

" In testimony whereof, I hereby make, declare and publish this as my last will and testament in the presence of C. C. Moody and J. L. Williams who, at my request and in my presence, have attested the same as witnesses, hereto, and in whose presence I have also subscribed the same, this the 9th day of July, A. D., 1921."

The bill filed by the complainant, Ann F. Gordon, set up that E. H. Faison executed the above will and testament on the 9th day of July, 1921, and that he died on the 11th day of November, 1926; that the said will was admitted to probate on the 16th day of November, 1926, and was duly recorded in the will books of Sunflower county; that by said will the lands mentioned in the bill were devised to Gertrude H. Faison, wife of E. H. Faison, now his widow, and to the complainant, Ann F. Gordon, and to Edmund Gertrude Faison, his children; that thereby they were vested with an undivided one-third interest in such lands, as tenants in common; that the complainant was born on the 28th day of September, 1912, and Edmund Gertrude Faison, the defendant, was born on June 26th, 1916; that thereafter, about the 15th day of April, 1933, while the complainant and the defendant, Edmund Gertrude Faison, were still minors, the defendant, Arthur M. Wirtz, together with one, Herman Hachmeister, trustee, filed a bill of complaint in the chancery court, giving the style and number of the bill, and a copy thereof, with the proceedings thereunder, as exhibit to the bill herein filed. It was therein averred that although this complainant and the defendant, Edmund Gertrude Faison, were named as parties to the said bill of complaint, yet the complainant states and charges that she and Edmund Gertrude Faison were not made parties defendant to the said bill of complaint by any process emanating from the chancery court; which court acquired no jurisdiction of the complainant herein, or of Edmund Gertrude Faison, her minor sister; and that all of the proceedings in the said suit attempting to foreclose the mortgage, so far as concerns the complainant and the said Edmund Gertrude Faison, are null and void; and that as to them Wirtz did not acquire title to the lands described in the bill, and it is only by virtue of the proceedings in the suit that he has or claims any interest in the land.

It is then alleged that the complainant is not informed as to whether by virtue of the proceedings had in the said suit to foreclose, Arthur M. Wirtz acquired title to the lands described as against the defendant, Gertrude H. Faison, and asks to have this question adjudicated by this Court.

It is alleged however, that by virtue of the proceedings had in said cause, Wirtz took possession of the lands involved on or about the first day of January, 1934, and since that date has continued in...