Yeates v. Box

• Decision Date: 28 May 1945
• Docket Number: 35872.
• Citation: 198 Miss. 602,22 So.2d 411
• Court: Mississippi Supreme Court
• Parties: YEATES v. BOX et al.

22 So.2d 411

198 Miss. 602

YEATES v. BOX et al.

No. 35872.

Supreme Court of Mississippi

May 28, 1945

Ray, Spivey & Cain, of Canton, and Jones &amp Ray, of Jackson, for appellant.

Bridgforth & Love, of Yazoo City, and A. S. Bozeman, of Meridian for appellees.

L. A. SMITH, Justice.

This appeal comes to us from the Chancery Court of Humphreys County where the appellant here was complainant, and sought in the chancery court partition in kind of certain lands in Humphreys County; the construction of the will of Charles B Box, deceased; that the executors, who also qualified as trustees, be required to file their final account in both capacities and be removed as trustees; and as executors; that the court fix the amount of the support, maintenance and burial of L. W. Wofford, prorate and fix the same as a lien against the interests of the parties; and that the annuity in favor of Mrs. Mattie H. Box, the widow, also be prorated and secured by lien against the interest of the respective parties.

To the original bill appellees filed a general demurrer that there is no equity on the face of the bill. Two special demurrers also were filed by appellees, assigning the grounds that a partition of the land would be contrary to the directions of the will, and defeat the intention of the testator, as expressed therein; that the will reates an active trust of such lands with Auvergne Williams and Henry Alcus, as trustees, imposing upon them as such trustees active duties which they could not perform if such lands were partitioned that the will directs them to make any division to be made of said land into the directed portions; that the will confides in them the determination for the ending of the trust, according to their sole discretion, as they think best; that the will directs them as trustees to support the widow, Mrs. Mattie H. Box, to the amount of $3,000 per year, which would be defeated by the partition of the land under the original bill; that the payment of the testator's debts was not fixed as a criterion by which termination of the trust would be judged; and that in a partition suit complainant could not require them to cease to function by separate original bill therein but only by proceedings in the probate case where the trust is being administered.

The will is as follows:

'I wan't all my just debts paid. I think best that my Estate be continued as this is not a proper time for disposing of anything. I think best that Auvergne Williams and Hy Alcus have charge of the estate.

'I desire that my wife Mattie H. Box be cared for to the amount of Three Thousand Dollars per year that she have the use of home during her lifetime. She is also to have $5000.00 insurance O. R. C. Policy #1, Series E.

'I also want and desire that my old Uncle, L. W. Wofford be cared for until death & buried.

'Then at proper time as above named Auvergne Williams and Henry Alcus think best as estate is liquidated that my wife Mattie H. Box have One Third of Estate and my direct relatives have one third and balance of third be divided to Mary Whitworth Yeates and Mattie Thornton.

'Signed

'Charles Bowen Box'

After the filing of the original bill, L. W. Wofford died, and the appellant amended the original bill by deleting therefrom all reference, both in the averments and prayer thereof, to Mr. Wofford.

The chancery court sustained the demurrers, and the complainants not pleading further, the original bill, as amended, was dismissed. From that final decree, the complainants below here.

It is the contention of the appellants that the will did not create a trust but devised the property in fee simple to the parties named, withholding only the right of immediate possession, which they contend was due to the condition of the times and to the necessity of keeping the property together until the debts of the decedent were paid. In other words, they argue that they are tenants in common of the land 'with an estate in possession and the right of the possession, and not in reversion and remainder'. Appellants say that the demurrer admits this claim. The position of the appellees is that they do not admit by the demurrer this claim, which is a legal conclusion. Furthermore, appellees take the position that the original bill shows on its face complainant was not at the time entitled to maintain a bill for partition or distribution which would defeat the will of the testator, which was exhibited with the original bill, and controlled certain averments therein.

The will was dated, as will appear from the examination thereof, December 20, 1930, and was probated in June 1931, both alleged to have been during the 'depression.' At the time of the death of the testator, the will became the authority for the administration of the estate by Auvergne Williams and Henry Alcus so as to pay the sum of $3,000 per year to the widow 'during her lifetime', and so that 'My old Uncle L. W. Wofford will be cared for until death and buried.' The opening paragraph of the will provides for the payment of the testator's just debts and that his estate be continued 'as this is not a proper time for disposing of anything. I think best that Auvergne Williams and Hy Alcus have charge of the estate.' By the last provision of the will, it is provided that 'at proper time as above named Auvergne Williams and Henry Alcus think best as estate is liquidated that my wife Mattie H. Box for one-third of estate and my direct relatives for one-third, and balance of third be divided to Mary Whitworth Yeates and Mattie Thornton.'

The basis of all constructions of wills is to seek the intention of the testator, and that this be ascertained from its language gathered from the whole will. It is necessary to consider the entire purpose of the testator from the language of the will, taking into consideration and giving due weight to every word therein. Then, 'Once the actual intent of the testator at the time of the making of the will has been in this way ascertained, all minor, subordinate, and technical rules of construction must yield to this paramount intent thus ascertained.' Ball v. Phelan et al., 94 Miss. 293, 49 So. 956, 958, 23 L.R.A.,N.S., 895.

The first question to determine is whether or not this will creates a trust with Auvergne Williams and Henry Alcus as trustees. They were not called either executors or trustees in the will, but the testator wrote that he thought it best for them to have charge of the estate, which is sufficient to name them as executors. Does this provision in the will considering the whole will, constitute them also trustees? Generally speaking, the duties of an executor are limited to the winding up of an estate of a decedent and are temporary. In the absence of a statute otherwise providing the duties of an executor are (1) to reduce to possession the personal assets of the testator; (2) to pay the testator's debts; (3) to pay legacies; and (4) to distribute the surplus to the parties entitled thereto. American Law Institute, 1 Restatement, Trusts, Chapter 1, § 6, p. 23. According to the authority of the same textbook, if the testator names the same person as executor and as trustee, he is acting as executor in performing the four duties named above, but in performing additional duties, he is acting as trustee. It is said he may act as trustee with reference to a part of the property, although he is still acting as executor with reference to the rest of the property. Id., Chapter 2, Topic 3, § 23a, p. 72. However, in discussing the same matter, this Court said in McNeese v....