Simpson v. Millsaps

Oalhoon, J., delivered the opinion of the court. The will in the record giving rise to this proceeding is somewhat remarkable as a testamentary instrument in modern times. It also serves to open a field for serious legislative consideration. The reporter is requested to publish it in full, together with the brief of counsel for appellants and the opinion of the learned chancellor in the court below. Appellees are mere testamentary trustees, with no personal or controversial interest, but who simply wish their course marked out by adjudication. Our court of last resort has .never yet been called on to align itself with any class of decisions on the question involved, and it must do so now. In this, however, it declines to announce any “hard and fast rule” to control in all cases of apparent similitude, but simply, proposes to declare its opinion of the intent of the testator in the-matter in -hand. . This will gives the whole estate to the trustees, with provision, for their successors, with directions to sell all real estate, and convert everything into personalty, with the avowed.purpose to-avoid the requirements of law as to land and as to perpetuities; and it gives the trustees,ample powers of investment in any solvent securities so as to provide income. It provides for two large classes of beneficiaries — one, for life, of this income, and the other of the corpus, after fifty years, with, such contingencies as postpone final distribution of all to probably seventy years after the testator’s death. The second clause obliges the trustees to distribute, as directed in the third .clause, “the annual income derived -from all my estate, both that of which I may [276] die seized and .possessed, and that which shall be acquired by my trustees with the proceeds arising from the sale of my real estate,” to such of many designated persons as .survived the testator, with provisions as- to their issue living during the life of any person of that large class. The third clause commands the trustees “to pay and distribute annually at the end of each year after my death the entire net,income of my said estate to and among the persons” named in classes, and provides for education of minors “in addition to his or her per capita share of such income,” and it proceeds: “The distribution of the income of my said estate shall be thus annually made until the time to commence distributing the corpus of said estate 'as designated in item four of this, my .will.” Item fourth provides that “at the end of the fiftieth year from and after my death” the trustees should, if any of class 1 be then alive, distribute to them and those of class 2 then living, and the heirs then alive of any of class 2 who had died, “one-twentietli of the corpus of my said estate, together with any accrued and undistributed income, and one-twentieth of the corpus thereof annually thereafter,” so as to wind up the whole business in seventy years from the testator’s death. Item fifth, it must be especially noted, saddles on the income for fifty .years, and then on the annual distribution of income, with one-twentieth 'of the corpus, “all taxes, expenses of administering this trust, and the compensation of my trustees.” Plainly, then, from the whole will, the intent comprises two purposes:, First, that all the accretions tc the corpus — -all its acquets; all the profits it produced — should be annually .devoted to the support, maintenance, and education of the life beneficiaries, and, second, from a curious wish not to let go his hold on the principal until bound to, that the corpus should remain intact for fifty years. Such .being the will, the life beneficiaries' filed their bill, the charges of which, being admitted by the' demurrer, must be taken as true. So the fact's are that at "the date of'the death of the testator, certain bank stocks he owned had a book [277] value in excess of their par value, arising out of the policy of the bank corporations, through their boards of directors, to withhold a part,of their earnings (a large part) from the distribution of dividends, and carry it to surplus. Of course, all this, as it was at the testator’s death, was,corpus, and had to be held for the remaindermen. But, after the testator died, thq same system was continued by the corporations, and the book values annually increased until a time when the trustees sold some of these bank stock shares, whose values had been largely increased since the maker of the will died, which increase the life beneficiaries claim should be theirs, and we think their claim just. Suppose the testator had (as is not unfrequently the case) ptactically all he had in the shares of one bank or one railroad, and the policy of the directors was (as sometimes occurs) to. distribute no dividends for many years, but to pass all dividends to surplus to increase the value of stock shares. Surely, the life beneficiaries must be entitled to these undistributed, dividends as the proper earnings of the corpus; otherwise these objects of the testator’s bounty must remain uneducated and in proverty, while a' fortune is being accumulated for unborn remaindermen. If this be the “Massachusetts rule,’’ followed by a few of the states, as applied to this will, we dissent from it, and put this state under the “Pennsylvania rule,” which prevails in the large majority of the states. We decline to indorse the doctrine that,the question of corpus to the remainderman or income to the life men depends on the schemes of corporations or the will of their boards of directors. They may withhold dividends from stockholders and from life beneficiaries under wills to swell surplus, but they cannot adjudicate their eventual right to the dividend passed to surplus. The courts only can do this. Whenever the earnings are distributed, the life men are entitled to them, and whenever the trustees sell stocks, enhanced in value by these undistributed dividends, the enhancement, above the value at the testator’s death, is, in law and equity, the property of the .life beneficiaries. [278] Tbe-authorities on all phases of this question-are-presented and discussed with absolute' fairness' and much , ability in the written argument of solicitors for' appellants, and -it would be an “affectation of learning” to go,into that field. We ask attention especially to the following citations in- that brief: 9 Am. -& Eng. Enc. Law (2d ecL), 710; 2 Thomp. Corp., secs. 2192-2222; • and particularly to the conclusion arrived at- by this- learned author- in see. 2222. Reserved and remanded’, with sixty days to appellees to answer after mandate filed in the court below. ’