70 So. 583 | Miss. | 1915
delivered the opinion of the court.
Appellees, as complainants in the court below, presented their bill in equity to cancel certain deeds of convey
“I do hereby appoint and constitute my son-in-law, Greenwood Ligón, executor of my last will and testament, trustee of my said daughter, Alice Foster, during her natural life, and for her children after her death, to whom as such trustee, the whole of the said property and estate, real, personal and mixed herein intended to b,e appropriated and applied to the use and benefit of my said daughter, Alice Foster, and her children after her death, is hereby and herein bequeathed in trust for the benefit of my said daughter, Alice Foster, and her children as aforesaid, and it is my will and intention and I hereby direct that the said Greenwood Ligón shall have and exercise full and complete control of the whole of said trust estate, and shall direct, control, appropriate, and apply the said trust property and estate to the use and benefit of my said daughter, Alice Foster, as long as she shall live, and after her death in like manner to the use and benefit of all of her children, born of her body, in equal amount and proportion, it being my intention, will and desire hereby to vest in said trustee, the legal and
Greenwood Ligón was also appointed executor, and accepted the trust reposed in him, executed the will under the directions of the court, presented his final account, and was discharged as executor. He also, accepted the trust committed to him as trustee for and on behalf of Alice Foster and her children for a considerable length of time. Thereafter a petition was fil'ed in the chancery court of Chickasaw county, where the -will was probated and the estate administered upon, asking the court to remove Greenwood Ligón as trustee and to turn over the trust property to Alice Foster and her husband. Greenwood Ligón thereupon resigned his office of trustee. The court accepted his resignation, and turned over the trust property to Alice Foster as prayed for. The supreme court on appeal reversed the decree of the chancellor,, and directed the lower court to appoint another trustee in the place and stead of Greenwood Ligón, and to have the trust further administered by a trustee appointed by the court. The Chancery court then appoint-George S. Foster trustee, who’ qualified and served as such until his death in 1806. See reported case of Ligon v. Foster, 63 Miss. 241. It appears that the lands here in controversy were, by partition proceedings, set aside and allotted to Alice Foster and her children as a portion of the estate of Simon Myers, deceased, and in’ 1887, on petition of Alice Foster and her husband, Pope Foster, the chancery court undertook to authorize and empower George S. Foster, trustee, to sell these lands, either at public or private sale, for the purpose of reinvesting the proceeds “in other and more productive lands.” It appears from this decree, dated May 25, 1887, that H. B. Lacy acted as guardian ad litem of the children of Pope and Alice Foster. In pursuance of this decree George S. Foster, trustee, undertook, on September 4, 1888, to convey the land in controversy by private sale to one J. T. Bennett. The deed recites a cash consideration of
The complainants sue as children of Alice Foster, and were infants at the time the court undertook to empower George S. Foster, trustee, to convey the éntire fee. At the time of the filing of this suit they had not come into the possession of their estate; the life tenant or beneficiary being alive. It is practically conceded by counsel for appellants that the deed from George S. Foster, trustee, to Bennett did not convey a good title-, but the contention is earnestly-made that this deed furnished suffi
“ A cestui que trust will not be deprived of his right to relief by any length of acquiescence, unless he has an immediate possessory title to the beneficial interest. For instance, when a person was entitled to the trust of a beneficial lease in remainder, after the determination of a previous life estate, it was held that the statute did not begin to run until the death of the life tenant. Hill on Trustees, 266; Bennet v. Colley, 5 Sim. 181. ‘The rights of the cestui que trust cannot be barred until his rights fall into possession. If, therefore, the cestui que trust holds in remainder or reversion, the statute will not begin to run. until his right to the possession falls in by the determination of the particular estate. ’ 2 Perry on Trusts, sec. 860.” Groves v. Groves, 57 Miss. 658.
That the two-year statute within which an action must be brought to recover property sold by order of the. chancery court, now appearing as section 3122, Code of 1906, cannot be invoked in this case is settled by the case of Jordan v. Bobbitt et al, 91 Miss. 1, 45 So. 311. This statute does not begin to run until the death of the life tenant.
’ The decree of the court authorizing Foster, trustee, to sell the fee was clearly erroneous. Hoskins v. Ames, 78 Miss. 986, 29 So. 828. In this case the remaindermen in an action of ejectment were held not to be concluded by decree of the'chancery court, appointing commissioners to sell the entire estate for .the purpose of reinvesting the proceeds; and the court, by Terrell, J., observes in a positive and profound fashion that the chancery court has no inherent power to decree a sale of an infant’s real estate for reinvestment. This can only be done in the way now provided by statute, to wit, a judicial sale by the regular guardian of the infant. The purported sale by the trustee to Mr. Bennett was never reported to nor confirmed by the court, and was in fact not a judicial sale at all. Under the very terms of the decree, directing the trustee to -sell,'Mr. Foster would have no right to barter the land for personal property. The whole proceeding amounted to a fraud on the rights of the infants, who received no benefit either before or after they became of age and who, therefore, could in no wise be now estopped by the void proceedings.
None of the ten-year statutes of limitation.- invoked could begin to run until after the termination of the life tenant. It is contended that the statute operated against George S. Foster, trustee, and that by the provisions of section 3123, Code of 1906, and the same statute in the Code of 1892, the beneficiaries are barred. It is a sufficient answer to say that appellees, as owners of the equitable estate after the death of Alice Foster, have not yet come into possession or enjoyment of their equity. Whatever their estate may be called, they cannot use it or have it appropriated, to their use until the death of the life tenant. George S. Foster never, in fact, became
The right of appellees to maintain this suit at this time was not challenged by the pleadings, and is in no wise presented to us for decision;
Affirmed.