Chandler v. Chandler

71 So. 811 | Miss. | 1916

Smith, C. J.,

delivered the opinion of the court.

The sole question presented to us on this record is whether or not the land here in question is subject to partition at the suit of the children of Ann and Abe Chandler before the expiration of twenty years from the death of the testator.

By the will the legal title to the land was vested in B. C. Chandler and the equitable title thereto in the children of Ann and Abe Chandler. To B. C. Chandler was also given the power to sell the land “in his discretion,’’ from which we understand that he could sell or not as m his judgment was for the best interests of his cestuis que trust. The trust reposed in him, therefore, in so far as the power to sell is concerned, is a purely personal, one, and cannot be exercised by another, from which it follows that upon his death the power to sell became extinct.

“We are not called upon now to determine in whom the legal title to the land is vested, for, conceding that it is vested in some person or persons other than the children of Ann and Abe Chandler, such person or persons hold the land in trust without any duties to discharge relative thereto, but merely for the benefit of the children of Ann and Abe Chandler, who are entitled to the possession thereof, and against whom the legal title cannot be set up (Brown v. Doe ex dem. Weast, 7 How. 181), so that ..under section 3521, Code of 1906, they are entitled to a partition. The decree of the court below will be reversed, and the cause remanded, with leave to appellee to answer within thirty days from the filing of the mandate in the 'court below.

Reversed and remanded.