| Miss. | Mar 15, 1914
delivered the opinion of the court.
Appellee, the Choctaw Bank, filed its bill in chancery court, seeking to subject the interest of appellant C. T. Mitchell in the estate bequeathed and devised by his mother, Mrs. Mattie R. Mitchell, to the payment of the indebtedness owing by him to appellee.- To show the
“I will and bequeath unto all my children, jointly, who may be living at my death, the following real estate in Union county, Mississippi, to wit: (Here follows the description of the land.) Also all my personal estate which I may own and possess at the time of my death, it being my desire and intention to give all my property real ánd personal of every kind and description, which I may own at my death, or have any interest in, to all of my children then living, jointly and equally.
“I hereby appoint my husband, Geo. S. Mitchell, trustee, for all of said children, -to take at my death charge and control of all of my said property mentioned in this will, and direct and empower him to use, control, manage, exchange and sell it, or any part of said property, as in his judgment may be best for the interest of my children, he to support them out of the same, and to do with the same as he thinks best for them, and he is hereby authorized to sell, make deeds, give receipts and as fully control, manage, receive and in any way dispose of any and all of said property, as he in law could do if it were his own absolutely, in fee simple, without any order of any court, and he is not to account to any court for the same in any manner whatever, nor is he to be liable for any loss or damage or mistake in the management of said property to any one.
“The said Geo. S. Mitchell is to control said property as set forth in item II of the will, until all my children .are .twenty-one years of age, and then divide the same equally among them, and if any die leaving children, then Vfcheir children to have the share of their parent.
\ “I hereby appoint my husband, Geo. S. Mitchell, my executor to carry out this will, and he shall not be required to give any bond or security as such, nor to report or account to any court whatever, as such executor, but in all connected with the same, he is to use his best*320 judgment and do what he thinks is best for all parties in interest. ’ ’
The bill prayed for an accounting from G-eo. S. Mitchell, who is in active charge of the estate as trustee and executor, showing what property he held and the income therefrom. There is also in the bill a prayer to cancel certain assignments and transfers made by O. T. Mitchell to his wife and to a firm of attorneys. The prayer of the bill then continues as follows:
“And that the interest of the said C. T. Mitbhell in said property be condemned to be sold to pay complainant’s said debt, interest, attorney’s fees, .and cost of this cause, and that, if necessary, a sufficient amount of what is now in the hands of Geo. S. Mitchell,, as executor and trustee, be condemned to be paid by him tó this complainant to pay its said debt, interest, attorney’s fees, and court costs in this cause.”
The bill also contains a prayer for general relief.
Appellants filed an answer, denying fraud charged in appellee’s bill, and also filed a demurrer to the bill. From the decree of the chancery court, overruling the demurrer, this appeal has been prosecuted.
The will created an active trust, 'which is now in the course of operation. A beneficiary’s interest, such as that shown in this case, is not subject to sale under execution. Presley v. Rogers, 24 Miss. 520" court="Miss. Ct. App." date_filed="1852-10-15" href="https://app.midpage.ai/document/presley-v-rodgers-7983805?utm_source=webapp" opinion_id="7983805">24 Miss. 520; Hill v. Fulmer, 39 So. 53; Stansel v. Hahn, 96 Miss. 616" court="Miss." date_filed="1910-03-15" href="https://app.midpage.ai/document/stansel-v-hahn-7990585?utm_source=webapp" opinion_id="7990585">96 Miss. 616, 50 So. 696. There can he no interference with the execution of the trust created by the will. The trustee is given complete charge, control, and management of the estate. What he is to do, for the interest of the beneficiaries, and in managing and disposing of the property, is committed to his judgment. lie is directed to support the beneficiaries, the children of the devisor,'out of the estate; but the control and disposition of all of the property is given to him fully, and just as if it were his own, absolutely, in fee simple. He can act without order of court, and
C. T. Mitchell, upon the death of his mother, was vested with an equitable title in one-sixth interest of the property left by her, subject to be defeated by his death before' her youngest child reaches the age of twenty-one years. Until the time for distribution arrives, he has no right to receive any part of the estate, other than that which might be expended by the trustee for his support. During the time he cannot have set apart to him any share ,of the property. He has no right to use, or to control, manage, or dispose of, any of the property devised. He has only a beneficial interest, which will not ripen into a legal title until his mother’s youngest child shall reach legal age. Until then the trustee has unqualified authority and power in the possession, use, management, and disposition of all of the property. This express trust in property was given by the owner thereof in her last will and testament.
“The owner of property may, in the free exercise of his bounty, so dispose of it as to secure its enjoyment to the objects of his bounty, without making it alienable by them, or liable for their debts, and this intention, clearly expressed by the founder of the trust, must be cárried out by the courts.” 1 Perry on Trusts, sec. 386a; Nichols v. Eaton, 91 U.S. 716" court="SCOTUS" date_filed="1875-11-29" href="https://app.midpage.ai/document/nichols-v-eaton-89234?utm_source=webapp" opinion_id="89234">91 U. S. 716, 23 L. Ed. 254.
A donor may make such disposition of his property .and provision for the application of the revenues therefrom for the support of his beneficiaries, and bestow upon the trustee such- discretion as to render the estate, or the interest of a beneficiary therein, not liable to be subjected to the payment of the beneficiary’s indebtedness. A donor has the right to devise his property for such purpose that neither the beneficiary nor his creditors can divert the property from the -appointed purpose. 1
“Where the property is held in trust to receive the rents or income thereof, and to apply such rents or income to the support of the cestui que trust, who consequently has no present right of enjoyment or power of alienation, his interest in such property cannot be reached by his creditors.”
There can be no question as to the right of Mrs. Mitchell, the devisor, to dispose of her property as she has done in her will. Leigh v. Harrison, 69 Miss. 923" court="Miss." date_filed="1892-04-15" href="https://app.midpage.ai/document/leigh-v-harrison-7987239?utm_source=webapp" opinion_id="7987239">69 Miss. 923, 11 So. 604, 18 L. R. A. 49. It is clear to us that the prayer of the bill asking that the interest in the estate of C. T.. Mitchell be condemned to be sold to pay appellee’s indebtedness, and that'a sufficient amount in the hands of the-trustee and executor be condemned to pay such indebtedness cannot be granted and carried into effect.
- It is suggested by counsel for apppellee that the chancery court has the power to enter decree for relief of appellee and to insure the collection of its indebtedness, against C. T. Mitchell by directing a payment of the amount which will be due him when the time arrives for the distribution of the estate, and by subjecting his interest in the estate for that purpose in such manner as not to interfere with the trust. They further suggest that a lien could be declared on the interest of C. T. Mitchell in favor of appellee for the amount of the indebtedness owing.
We have carefully considered these suggestions. We-do.not see how they can be put into effect. It appears to-us that the chancery court is powerless to enter a decree which would be effective. C. T. Mitchell’s interest is uncertain and contingent. Its value now cannot be ascertained. Until the time for distribution under the will arrives, he will only receive such amount as the trustee may give him for his support. There is no provision for payment to him of any surplus from the income. If he
Reversed, and decree entered here sustaining the demurrer and dismissing the bill.
jReversed.