Burkett v. Burkett

81 Miss. 593 | Miss. | 1902

Calhoon, J.,

delivered the opinion of the court.

The bill or petition in chancery in this cause makes an exhibit of certain other .proceedings in the same court, which it is convenient, for the sake of clearness of statement, to present first. These proceedings terminated in a final decree, of date May 6, 1902, on “petition, answer, and proof,” and were commenced by a petition filed by James, Jr., Belle, Jr., Nettie, Garnett, Louise, and Dewetta Burkitt, minors, by their mother and next friend, Belle Burkitt, and makes Frank and Exile Burkitt defendants, naming them as executors of the will of Gen. Henry L. Burkitt, deceased, and it exhibits this will at length, and it avers that they are the grandchildren of the deceased, and legatees under the will, and residents of Monroe county, in this state; that Exile Burkitt is a nonresident, living in the state of Tennessee, but that the will appoints him, nevertheless, the guardian of the petitioners, which the petition avers to be illegal, and that Mrs. Belle Burkitt, the mother and next friend, is a suitable person to be their guardian, and asks her appointment as such; that the will, or, to be strictly accurate, the codicil to it, provides that the legacies to the minors, in the distribution of the estate, be paid to Exile Burkitt, he to distribute to the minors, successively, as each attains the age of twenty-one years, and requires no bond; that he should not be allowed to withdraw the trust funds from the state without bond; and the prayer is that the court construe the will and codicil, appoint Mrs. Belle Burkitt guardian, direct the legacies to be turned over to her, or to require bond of Exile Burkitt, and require him to invest the funds, and for general relief. It should be mentioned here that neither the will nor the codicil nominates Exile Burkitt as executor, but does expressly nominate Frank and James Burkitt executors. The codicil, however, contains this provision in reference to these grandchildren: “I will those who are twenty-one years old at the time of distribution receive their proportional share from my executors,' and the shares of those- under age I will that the money due them be placed in the hands of my son, Exile Burkitt, whom I appoint as their guardian, and hereby direct that he pay to each one his or her share as they arrive at the age of twenty-one years. ’ ’ The final decree in that cause, of date May 6, 1902, announces on the construction of the will that the grandchildren, complainants, took a vested legacy under it, but the same was to be placed in the hands of Exile Burkitt, as trustee, to hold and invest, and to be by him distributed as each.arrived at the age of twenty-one years. , The decree further is that this trustee has received $350 of the legacies from the executors out of the first distóbution, and it requires the trustee to file a bond for $400, conditioned for the faithful performance of his trust and for the careful investment of the money, and the annual payment of interest to the guardian of the minors, when one is appointed, and that the trustee make additional bonds to protect further moneys he may receive from the executors from time to time in their distribution, and that the trustee is-entitled to letters of guardianship of the estate of the minors on proper application within thirty days; and, if he declines to make bond as trustee, he is’ required to pay to the guardian, when appointed, the legacies he now holds, and such other sums as he may receive from time to time as trustee. The decree then requires Exile Burkitt to account with such guardian for interest he may have collected from the Southern Engine & Boiler-Works, to whom he has loaned money of the legatees, and that payments by him as trustee shall be acquittance pro tambo of the trust under the will, and that if he declines to make bond, and pay the money he has to the guardian, he shall be discharged as trustee, and the executors of the will shall pay over thereafter the shares of the minors to such guardian as shall be appointed. This final decree remains unappealed from. Subsequently to this final decree of May 6, 1902, and on August 12, 1902, a petition was filed in the same court by Mrs. Belle Burkitt, as guardian of the minors, in which she refers to and exhibits the proceedings we have described above, against Exile and Frank Burkitt, whom she characterizes as executors under the will, and charges that the final decree therein required Exile to invest the legacies in this state, on good security, which is an error, since the final decree mentioned does not so require, but distinctly recognizes the loan to the said boiler works, which is a Tennessee corporation. She avers that she has been duly appointed guardian, and insists that it was the duty of the trustee to invest the money of the minors in this state, and charges that Exile did not execute bond under the decree, but declined letters of guardianship, and that he holds $350 of the trust money invested by loan to the said boiler works in Tennessee, and has not invested it in Mississippi, nor made any report to court of the performance oj; the decree, and that she, as guardian, is entitled to receive the annual interest of the money, and that the legacies ought to bring ten per cent, interest, as they will eventually amount to about $1,500; that the minors live with her, and that she can loan money at ten per cent., with ample real estate security, in Monroe county, in this state. The prayer is that Exile be required to loan the money at ten per cent, interest, and that the guardian be permitted to submit the applications she has for said loans, and that the court direct the investment accordingly, and that Exile be required to turn over to the guardian the annual income, without the costs of annual account made by him as trustee, so that there shall be only one account, and that by the guardian. This last petition is the beginning of the proceedings now before us, and it was filed on August 12, 1902, just three months and six days after the date of the final decree exhibited with it. To this a demurrer was filed and sustained, and the petition dismissed, which was done on September 5, 1902, and from this order Mrs. Burbitt appeals to this court.

The decree of May 6, 1902, was the culmination of proceedings covering the whole subject-matter of those now before us, and with identically the same parties before the same court. It construed the codicil, and determined what should be the disposition of the legacies. The fact that the former proceedings were instituted by the parties as legatees, and the latter by the guardian of the legatees, as guardian, does not alter the case. The decree of May 6 is unappealed from and unrevefsed, and is the law of this case, of equal dignity with a decree or judgment of this court.

Affirmed.