Stansel v. Hahn

Smith, J., delivered tbe opinion of tbe court. S'. J. Habn, deceased, by bis last will and testament, devised certain property to appellees, in trust for bis two sons, Moses-A. Habn and Aaron M. Habn, share and share alike. Item 4 of this will is as follows: “The property hereinbefore devised and bequeathed to Rosa Habn and Samuel J. Habn as trustees-for Moses A. Hahn and Aaron M. Halm, said trustees are to bold, manage, and dispose of, collecting tbe rents and incomes, changing tbe investments, selling, and conveying tbe whole or any portion thereof from time to time, and doing any and all things necessary for tbe prudent management of said property,, and for tbe carrying out of tbe terms of said trust. Said trustees shall not be answerable to any court for tbe manner in which they discharge their duties as trustees, nor shall they give bond or security as such trustees. Said trust shall continue for ten years after tbe death of my wife, provided that said trust shall terminate at all events at the expiration of twenty years after my death. The net income of said property, after paying taxes, insurance, repairs, and other expenses of keeping up the property and the expenses of administering the trust, shall from year to year be paid, share and share alike per stirpes, to Moses A. Hahn or his heirs and Aaron M. Hahn or his heirs. At the time fixed for the termination of said trust the trustee shall settle the trust giving to each beneficiary his portion of the property. Should the trustees deem it for the best interest of said Moses A. Hahn and Aaron M. Hahn, said trustees may turn over to- said Moses-A. Hahn and Aaron M. Hahn a portion of -the corpus of the trust property before the time arrives for the termination of [622] the trust. Thereafter said trustees shall make their or his ■annual and final settlement with the beneficiaries of said trust in proportion to their interest in the corpus of the trust property.” Afterwards, Aaron M. Hahn becoming indebted to appellants, they sued at law and obtained judgments against him. Executions were issued on these judgments, and the sheriff of Lowndes county was proceeding to sell the interest of Aaron in certain property devised to appellees in trust as aforesaid. Thereupon appellees filed their bill in the court below, alleging that this property was not subject to sale under execution, and praying that same be enjoined. Appellants demurred thereto, which demurrer was overruled. Appellants then filed an answer and cross-bill, alleging that the income due said Aaron from said estate was sufficient to support him and pay ■all of his debts, and praying that appellees be decreed to give a full account of their management thereof, and they be ordered to pay off and discharge said judgments. This cross-bill was demurred to on the ground that it presented new matter not germane to the original bill, and the demurrer was sustained. The chancellor thereupon granted an appeal to this court to settle the principles of the cause. The decree of the chancellor was correct in both instances. ■Section 2779 of the Code of 1906, which subjects equitable assets to sale under execution at law, has no- application to an native, as distinguished from a dry' and passive, trust. Leigh v. Harrison, 69 Miss. 936, 11 South. 604, 18 L. R. A. 49. TJnder the will quite a number of duties, with some discretion relative to a portion thereof, devolved upon the trustees. They were to hold and manage the property, collect the rents, sell ■any portion thereof, and change the form of the investment when necessary, and pay taxes, insurance, and the expense of repair and keeping up the property. “Amongst the active trusts had always been classed that to receive and pay over the [623] profits to another, in which case the land must remain in the trustee to enable him to perform the trust. So where it is the testator’s intention or where it is necessary for the accomplishment of any object of his will, that the legal estate or possession of the land should remain in the trustee for the purpose ■of administering the trust. So, also, where the trustee is to ■dispose of the property, or pay the rents over to the cestui que trust, or apply them to his mainténance, or to make repairs, or to pay annuities, or to manage the estate as he should think best for the interest of the cestui que trust, or to pay the rents to a married woman, or suffer her to receive them.” Barnett’s Appeal, 46 Pa. 392, 86 Am. Dec. 502. Aaron’s interest in this property, therefore, was not subject to sale under execution. The cross-bill introduced entirely new matter, neither necessary for appellants’ defense nor in any way germane to the ■only matter involved in the original bill, to wit, the enjoining of the sale of this property under execution. Affirmed and remanded for further proceedings. Affirmed.