Nutt v. State, 51 So. 401

Nutt v. State

51 So. 401 | Miss. | 1910

Mates, J.,

delivered the opinion of the court.

The record in this cause, which is not as full as it might be,, shows that on the 30th day of June, 1906, the appellant was appointed as testamentary trustee of the estate of Mary Ella Nutt, deceased, in place of Brandon, who prior to' that time .was administrator c. t. a. and conducting the administration of this estate in the chancery court of Adams county. It does not appear why Brandon was relieved; but the presumption is that he had completed the administration and paid over the funds-to the court for the purpose of having the court- appoint a testamentary trustee to effectuate the trust created by the will. The appointment was made by the chancery court of Adams county, in which county,-it seems, the will was probated. At the time of appointment the appellant was required to execute a bond in the sum of $7,500 for the faithful performance of his duty as trustee, which he did with the United States Fidelity & Guaranty Company as surety. In due course the bond was properly approved, and the appellant qualified as trustee, and entered upon his duty as -such, whereupon there was placed in his custody and care the sum of over $6,000, which was to be held by him under the terms of the will for the use and benefit of the beneficiaries named in same. It would seem that the will directed that the money be kept invested at interest by the trustee, and only the interest be paid to the beneficiaries annually. The decree appointing appellant trustee directed him to pay over the interest to the beneficiaries of the trust in accord-*481anee with the requirements of the will under which the appellant was acting as testamentary trustee, and the decree also required appellant to account to the court as trustee. It thus appears from the record that the administration of this trust was confined to Adams county, where this suit was brought, both because the original will was probated there, and because the decree appointing appellant as trustee required that he should account there, and because the property turned over to him was in that county, and under the control and care of the chancery court of that county. The bond executed by appellant for the faithful performance of-his duty as trustee had the following condition in it; that is: “The condition of this obligation is such that, if said John K. Nutt shall faithfully discharge his duties as trustee under the last will and testament of Mary Ella Nutt, deceased, and shall 'account for the money paid to him as trustee under said will, in accordance with the terms of the decree of the chancery court of Adams county, Mississippi, then this obligation shall be void; otherwise, it shall be and remain in full force and effect.” It appears that the appellant, after taking charge of the above funds, has failed since his appointment either to file any account with the court or pay the interest to the beneficiaries, though more than two years have passed since the appointment, and the court twice summoned him to appear and account. In short, appellant has wholly failed to respond either to the court’s command or the duty imposed by the trust. In this condition of affairs, and on the 14th day of November, 1908, and without any further. notice to appellant, the chancery court of Adams county removed appellant as trustee and appointed J. L. Dagg in his place, and directed the last-named trustee to proceed at once to collect the funds of the estate from appellant and his sureties, whereupon this suit is instituted against both the appellant and his sureties. Both parties appeared to the suit and answered, whereupon complainant set the cause for hearing on bill and answer. The trial resulted in a judgment against the ap*482pellant and bis surety, comprising principal and interest, and being for tbe sum of $6,878.15; and from this judgment an appeal is prosecuted.

On tbe merits of tbe controversy there seems to be no complaint; but it is insisted that tbe cause should be reversed because tbe court bad no power to remove tbe appellant as trustee, since no notice was ever served on him that any motion bad been made for this purpose. Tbe answer of both rely solely on tbe above contention. Tbe mere statement of this case leads to tbe irresistible conclusion that tbe decree of tbe chancellor must be affirmed. This case is without any defense, either of merit or technics. But appellant claims that be is a resident of Washington county, and therefore tbe suit should have been brought there. All question of tbe jurisdiction of tbe chancery court of Adams county to try this cause is set at rest by an inspection of section 554 of the Code of 1906, which provides that “the court in which a will may have been admitted to probate, letters of administration granted, or a guardian may have been appointed, shall have jurisdiction to hear and determine all questions in relation to tbe execution- of tbe trust of the executor, administrator, guardian, etc., * * * and shall have jurisdiction of all cases in which bonds or other obligations shall have been executed in any proceeding in relation to the estate or other proceeding, bad in said chancery court, to bear and determine upon proper proceedings and evidence, tbe liability of tbe obligors in such bond or obligation, whether as principal or surety, and by decree and process to enforce such liability.” There is in this case every essential required by this section as a condition conferring jurisdiction on the chancery court of Adams county. It seems that the will was probated in Adams county, tbe testamentary trustee was appointed there, tbe bond given and filed there, the trust assumed there, and tbe decree of tbe court required that the accounting be made there. Nothing else could be necessary under our statutes to confer jurisdiction on that court, regardless of where the trustee might have his domicile.

*483But section 554 is not the only section that confers jurisdiction on that court. It is also conferred by section 561 of tbe Code of 1906. By tbis last section it is again provided that “suits against executors, administrators, and guardians, touching the performance of their official duties, and suits for an account and settlement by them,” etc., “shall be brought in the chancery court in which the will was admitted to probate, or letters of administration were granted,” etc. It is quite true that ■the record does not show that appellant was notified that there was a motion before the court to have him removed as trustee, .and it is argued from this that the action of the court in so doing was therefore void. On the facts of this record there is nothing in this contention. The record does show that appellant was twice summoned by the court and required to file an account; that he failed so to do, and utterly ignored the summons, allowing more than two years to pass without filing the account before he was summarily removed and suit instituted against him; .and that he has not yet accounted for the funds. Under the facts .appellant had all the notice required, and the court not only had the power to remove him, but it became the duty of the court under section 2123 of the Code of 1906 to do so. Section 2123 provides that “it shall be the duty of the court at every term to cause a list to be made of all executors and administrators who have failed to settle their accounts within the year preceding; and if there be any such, the court may order a summons to issue for the defaulter, returnable forthwith, or at a subsequent term, and, on the return thereof, may proceed against him for contempt, and may also remove him from office, unless sufficient ■cause be shown for such failure, and that the same was not the result of negligence.” When this summons to file an account was persistently disregarded, it was cause sufficient under this section to warrant the court in removing appellant. If he had •any excuse which would cause the court to vacate the order of removal, he has not yet made it apparent; but he has furnished conclusive proof that the court’s action was wise and timely.

*484Tbe chancery court -has a general superintendence of all fiduciary relations, and when that court removes, of its own motion,, one of its trustees for misconduct endangering tbe safety of tbe trust property, it will have to be a very plain case of palpable injustice before this court will in any way interfere with tbe action of tbe chancery court. Tbe removal of this trustee was. not under section 2035 of tbe Code of 1906; that is to say, it was not at tbe instance solely of any interested person, charging improper conduct and asking for tbe removal. If it bad been, then five days’ notice would have been necessary, as required by above section. Tbe removal was under section 2123 of tbe Code, and by tbe court itself, and because of willful neglect on tbe part of tbe trustee to obey tbe court’s own orders.

This case is destitute of merit, and tbe decree is affirmed.