46 Miss. 422 | Miss. | 1872
A bill in chancery was brought by L. Ready against J. B. Hamm, administrator of the estate of John M. Hamm,
Nicholas. Ready, the husband of the appellant, in his life-time, the 1st January, 1868, executed a deed in trust, conveying a x^arcel of land therein described to John M. Hamm, to secure a debt for $373 97, embraced in a promissory note in favor of Breed, and S. E. and B. J. Rives. The first trust declared in the deed was, if the note was not paid at maturity, then the trustee should make sale of the property. In the latter part of the instrument this condition was so altered as to permit the.grantor to remain in possession during his life-time without rent, and should he fail to pay the debt in his life-time, a sale should not be made until after his death; and, upon a sale being made, the surplus, after discharging the debt, interest and expenses, should be paid over by the trustee to his grand-daughter, Frances Kennard. Nicholas Ready intermarried with the complainant after he had executed the deed, lived but a short time, and died. The complainant was appointed administratrix of his estate in December, 1870. John M. Hamm, the trustee, has also deceased; and J. B. Hamm, his administrator, is proceeding, and having advertised the premises, to execute the trust by making a sale of the premises.
It is only by virtue of express power conferred in the deed that the cestui que trust can make an appointment, where the trustee dies, resigns or declines to perform his duty. In such cases the authority is regarded as a strict power, to be closely pursued. Gwin v. Pickett, 42 Miss. 80. If there be no instrument conferring the power, then, in case of vacancy, a court of equity, which has plenary jurisdiction over trusts, and never permits them to fail for want of a trustee, must be applied to to supply the omission. Hill on Trustees, 279.
This deed contained no provision for substitution of a trustee, in the event of the death of John M. Hamm. It
Mrs. Ready, the complainant, in her bill claims that the deed created no estate or incumbrance upon the land to the prejudice of her dower right. Having been executed before the marriage, there cannot be a doubt that, at the common law (independent of the statutory modifications), her-claim is subordinate to the incumbrance. Her dower estate, being a derivative from the husband’s title, cannot be so assigned to her as to defeat prior estates created by the husband. As administratrix, it would be her duty, out of the personal assets, to pay off the debt and relieve the estate of the incumbrance. Simply in her capacity of dow-ress she could go forward and pay the debt, and thereby entitle herself to dower. Without undertaking in this case to define the extent of her right of dower, in the construction of the last clauses of the deed, looking to the contingency of a sale after the grantor’s death, and after satisfying the debt and expenses, appointing the surplus to be paid over to the grand-daughtér, we think that the complainant has such interest in the property as to protect the title from confusion and clouds by restraining the defendant from intermeddling with it, or the trusts connected with it.
This brings us to the conclusion that the demurrer to the bill ought to have been overruled.
The decree of the chancery court is reversed, judgment here overruling the demurrer, and cause remanded for plea or answer’within sixty days from this date.