Mayes v. Mayes

97 So. 548 | Miss. | 1923

Smith, C. J.,

delivered the opinion of the court.

This is an appeal to settle the principles of the case and is from a decree sustaining demurrers to an original bill. The bill brings under review the will of Herman B. Mayes which was partially construed by this court in the case of Long v. Mayes, 94 Miss. 735, 48 So. 523, which will the reporter is directed to set out in full.

The original bill is by John Lanier Mayes, the only child of Robert B. Mayes, deceased, who was a son of the testator, Herman B. Mayes, and all necessary parties are defendant thereto. The bill alleges, in substance, that the testator’s widow, Charity Mayes, is dead; that his daughter Mary Jane has married; that his daughter Alice has an income sufficient for her maintenance independent of that provided for her by the will; that his son, William, can be provided for by setting apart a portion of the estate left by the testator for that purpose; that the income from the farm left by the testator and which constitutes the bulk of the estate is insufficient for the payment of the annuities allowed to Alice and William Mayes by the decree of the court below which was under review in Long v. Mayes, 94 Miss. 735, 48 So. 523, after deducting therefrom taxes, expenses for necessary repairs, and commissions allowed the trustee; that the annuities to Alice and William are now considerably in arrears, and for the payment of which a resort to the corpus of the estate will become necessary, and that the trust property is in danger of being “destroyed for want of repairs.” The bill further alleges, in substance, that the greater portion of the land composing the testator’s farm is covered by a. virgin forest which was of very little value at the testator’s death, but which is now worth considerably more than the whole of the land ivas then worth; that because of other circumstances unnecessary to here set forth the. land has so increased in value that it can now be sold for something like fifty thousand dollars; that if this were done the money realized therefrom could be so invested that only a portion of it would be necessary for providing an income sufficient for the maintenance of Alice and William and that the remainder could be divided among the testator’s other children and their descendants in accordance with the third item of his will. The bill also alleges that the trustee has five thousand and fifty dollars and sixty-three cents in cash belonging to the estate, but from what source derived does not clearly appear. Nor does it appeal' why it has not been applied by the trustee to the annuities due Alice and William.

The testamentary trustee has resigned, and John S. Decell was appointed as his successor by a former decree of the court below. Several demurrers to this bill were interposed by the various defendants and sustained by the court below.

The relief sought by the complainant seems to be: (1) The discontinuance of the allowance heretofore ordered by the court below for the support of Alice Mayes; and (2) the sale of the trust property, the reinvestment of So much of the proceeds thereof as will be necessary for the protection of an income for the support of William Mayes, and the distribution of the remainder thereof, if any, to the persons now entitled under the will to receive it.

The ground on which it is sought to have the allowance from the trust property for the support of Alice Mayes discontinued is that, as she has an independent income sufficient for her support, an allowance therefor from the trust fund is no longer necessary. The will does not provide that she shall be supported only so long as she has no independent income sufficient therefor, but until her marriage or death. Consequently the allowance therefor should not be discontinued.

Two reasons are assigned for the sale of the property: First, that the proceeds thereof will be more than sufficient when reinvested to provide an income for the maintenance of William, and, if necessary, for the support also of Alice, so that a portion of the proceeds could be now distributed to those entitled under the will to receive it; second, that a sale of the property and the reinvestment of its proceeds is necessary in order to carry out the testator’s purpose in creating the trust and also to prevent the loss or destruction of the trust estate.

Counsel for all of the parties agree that the power given to the testamentary trustee to sell the trust property and to reinvest the proceeds thereof was personal t,o him, and. did not pass to his successor, which construction of the-power will be accepted by us without expressing any opinion thereon.

A court of equity will not order the sale of trust property and the reinvestment of its proceeds merely for the purpose of increasing the value of the trust estate, but Avill order such a sale and reinvestment Avhen so to do is necessary in order to effectuate the purpose for which the trust was created or to prevent the loss or destruction of the trust estate.

The testator sought to accomplish two purposes by his will: First, and primarily, to provide for the support of his Avidow and his son William, until their death, and to provide for the support of his daughters, Mary Jane and Alice, until their marriage or death; and, second, to pass the corpus of his estate, after liis primary purpose had been accomplished, to his then surviving children, the descendants of a deceased child to take their parent’s share. While he charged not only the income but the corpus of his estate Avith the support, of his widow and the three named children, it is clear that his intention was that his estate should be so managed that a part, if not all, of the corpus thereof should remain for final distribution. It appears from the language of the Avill by which the power to sell the trust property Avas conferred on the testamentary trustee that the testator contemplated that a sale of' the trust property and a reinvestment of the proceeds thereof might become necessary in order to accomplish the purpose he had in vieAV in creating the trust, and if such a sale and reinvestment should become necessary he desired that it be done. This language is as follows:

“I hereby empower him, for the general objects herein declared and to the end of increasing and making more certain the income from my estate to improve the property, to lease and sell the same at public or private sale, for reinvestment for the purposes of this my will, without application to any court, having confidence in his judgment and integrity, and intending to give him ample power of management and control and direction of my estate, in order the more effectually to secure objects set forth in the provisions of this my will.’

It appears from the bill of complaint that the corpus of the estate is in danger of being destroyed “for want of necessary repairs and of being consumed by its having to be resorted to for the support and maintenance of Alice and William, the happening of either of which events will render impossible the effectuation of the testator’s purpose. If this is true the court below should order a sale of the trust property and a reinvestment of the proceeds or so much thereof as may be necessary to provide for the maintenance of Alice and William, and, if the distribution of the remainder, if any, should appear to be proper under item 3 of the will, it can be so distributed. By so doing the testator’s intention will not only be carried out, •but the loss or destruction of the trust estate will be prevented. The sale, if ordered, should not be confirmed unless the price obtained for the property would enable the trustee to more nearly carry out the testator’s intention than can be done with the estate in its present form. Had the testator manifested a desire for liis property to reach the ultimate distributees in its original form, a different question Avould here arise; but no such intention appears from the will.

The decree of the court below will be reversed, and the cause remanded, with leave to the appellees to answer the bill of complaint within thirty days after the filing of the mandate in the court below.

Reversed and remanded.