Guess v. Strahan

Cook, J., delivered the opinion of the court. A petition was filed in the chancery court of Attala county by Mrs. Hattie Strahan, appellee here, asking the court to construe the will of her deceased father. The petition states that E. C. Blister executed his will April — 13 — 12, 1910; that he died April 25, 1912; and that his will was admitted to probate July 6, 1912. It is further stated in the petition that at the time of the death of her father his estate consisted of a house and lot in the city of Kosciusko and about one thousand dollars in money. Before the death of her father, and after the making of his will, viz., on January 25, 1912, it is stated that he donated and assigned to petitioner seven promissory notes executed by John D. Price and Mrs. Ola B. Price for one dollars each, and one note executed by W. H. Strahan for five hundred dollars, and note executed by W. IP. Strahan for one hundred and fifty dollars. Petitioner further says that he had not realized anything from these notes, nor has she received anything from the estate of her deceased father. On the 30th day of June, 1911, it is stated that the father of petitioner conveyed to Mrs. Ethel Stephens two small lots situated in Kosciusko, which deed was left in escrow with T. 0. Guyton, to be delivered by him to Mrs. Stephens after the death of the grantor; that subsequently, on the 26th day of February, 1912, her father executed a deed to Mrs. Stephens for the lots described in the escrow deed. It is stated that petitioner “is advised and believes that said last-named deed was an ineffectual effort of her said father to distribute or administer his estate, or some portion thereof, among his grandchildren, and that said advancement was either intended as an advancement'under the. will with the view in mind of .making other advancements to each of said grandchildren, Dr. ~W. H. Strahan and Mrs. Ola B. Price, or that said deed should be canceled, and said property returned to the estate of the said E. C. Brister to maintain the impartiality and integrity of said last will and testament. The will of E. C. Brister devised all of testator’s property, real and personal to his daughter, petitioner and appellee, for her life, with remainder to her children, Mrs. Ethel Stephens, Dr. W. H. Strahan, and Mrs. Leola Price. — 14 — It will be seen, therefore, that after the execution of the will testator conveyed, by deed and assignment, all of his property, except a city lot and about one thousand dollars in money, to petitioner and to Mrs. Stephens. All of the children and Z. M. Gruess, trustee and executor of the will, are made parties to the petition, and the following are the prayers of the petition, namely: “ (b) That this honorable court shall hear evidence touching the amount of annuity to be paid over to her by said trustee during her health and normal condition of life, and reserve power and authority to provide and protect her against misfortune, sickness, want, or distress. “(c) That this honorable court shall decree and fix the title of said notes of John D. Price and Mrs. Ola Price and the notes of the said W. H. Strahan in this petitioner as her own personal property, and consistent with the intent of and acts of her deceased father, so that no difference shall arise between this petitioner and the trustee touching the ownership of said notes. “(d) That said amounts or annuities be decreed to be paid to this petitioner in monthly installments by Z. M. Gruess, trustee and executor. “(e) That this honorable court shall determine and fix an adequate solicitor’s fee for her solicitors of record, J. A. Teat and J. A. Niles, for their services in presenting this petition on the behalf of herself for the interest and benefit of said trustee and said estate, and direct the said trustee to pay over said sum'to said solicitors as shall be determined by the court. “(f) That the court take jurisdiction of all matters contemplated in said will and construe said will, setting forth the rights, powers, and duties of said trustee, and define the use and benefits of said estate intended by the testator to go to this petitioner, and to direct said trustee in the management of said real estate and in the loaning and handling of any cash or money which the court may adjudicate to his care and management, and — 15 — to construe any and all controverted questions arising upon the hearing of this petition, so that further or additional litigation need not arise in the management of said estate. “(g) And to grant any other further additional, special, or general relief as to the court may seem meet and proper upon the hearing hereof, as in duty hound your petitioner will ever pray/’ etc. Z. M. Guess, executor, demurred to the petition, assigning the following grounds therefor, viz.: “(1) Because there is no equity on the face of the bill. “ (2) Because said complainant does not attach to her bill as exhibit the will of E. C. Brister, deceased, so that the court can take judicial cognizance of the same. “ (3) Because said bill does not allege that she is not in comfortable circumstances, and does not alleged more than she is living with her husband J. W. Strahan, with no separate estate of her own, but fails to state that she is not abundantly provided for by said husband, or any necessity for the will. “ (4) Because the said bill is multifarious in this: It seeks an order of court fixing how much money shall be expended on her each year during her life, and also seeks to try the title and fix the ownership of several notes attached to complainant’s bill and made exhibits thereto, and thus uniting in one bill distinct and unconnected equities against disconnected defendants. “(5) Because said will referred to of E. C. Brister, deceased, alleged in the bill as being recorded in Book P of Wills, on pages 176 and 177, shows plainly and distinctly that said testator devised to complainant all of his property, both real and personal, that he died seised and possessed of for and during her natural life, subject to the terms and conditions therein named, and he appointed Zebulon M. Guess executor of his will, and as trustee of the funds and property of his daughter, the — 16 — complainant in said bill, and expressly gave bim ‘full power and control to administer my estate under -this will for the use and comfort of my said daughter, and to be economically administered.’ “(6) Because the reading of the bill in connection with the will shows plainly that said testator was not in doubt as to the terms of said will, and there is no reason why this .court should be called upon to mate certain that which is already certain, plain, and easily understood as to the duty of said executor. “(7) Because said bill does not allege sufficient reasons for the filing of the same, when read in connection with the will. “(8) Because said executor alone could ask the court to construe the will, and would have to assert that he was in doubt as to its meaning and as to his duty in his petition for that purpose, for the reason that said will is clear and not ambiguous, certain, and definite. “(9) Because said bill seeks to join in the same action and try the issue touching the amount of annuity to be paid over to her by the executor, and also to fix the title to certain notes named and described in the bill and made exhibits thereto, and seeks to ingraft in a decree amounts to be paid to petitioner monthly, when no such provision of the will contemplates anything of the kind. “ (10) Because a plain reading of the bill and the will referred to of E. C. Brister, deceased, though not made an exhibit, does not, cannot, and will not allow the plaintiff’s counsel an attorney’s fee for their services for the petition on file, and claim the same is for the interest and benefit of said trustee, Z. M. Guess, who does not join in the bill but is made a party defendant to the same. “ (11) Because said bill does not allege that the executor who acts for the estate, and who alone can do so, is in doubt about his power or his duty, and does not show any necessity to invoke the aid of this court to carry — 17 — into effect the terms of the will, because neither the insolvency of the complainant is alleged, nor sufficient reason to warrant this court in granting the relief prayed for. “ (12) Because the hill does not allege that the executor .of said estate is in doubt as to his duty, or that there is the slightest danger of him failing to promptly carry out the terms of the will in its letter and spirit. “ (13) Because said hill is vague, indefinite, and shows no cause or reason why this court should interfere with the action of the executor, when there is no charge that he is in default in any manner, nor will become so, nor that the complainant’s condition in life is urgent, pressing, and immediate, so as to invoke the aid of this court. “And for other reasons apparent on reading of said petition in connection with its exhibits to be heard by the court in the argument of the case.” The demurrer was overruled, and the executor and Mrs. Ethel Stephens ajppeal. The other parties defendant did not enter their appearance. Item 2 of the will the chancery court was asked to construe reads this way: “I bequeath and devise to my only daughter, Hattie Strahan, all of my property both real and personal that I may die seized and possessed of for the term of her natural life, subject to the terms and conditions hereinafter named, as follows: My desire being that her husband, J. W. Strahan, do not have the control or management of any of the money or property bequeathed or devised under this will, if said J. W. Stra-han be living at my death, then the property so given to my said daughter for life to go to a trustee to be hereinafter named for my said daughter’s Rise and benefit for her natural life.” Item 4 is in the following language: “Reposing special confidence and trust in my friend, Zebulon Guess, I hereby nominate and appoint him executor of this my last will and testament and as trustee of the funds and — 18 — property of my daughter, as above named. I suggest that he make bond in a reliable surety company and that the expenses of same be paid out of my estate, or he may make it otherwise. Said trustee is expressly given full power and control in administering my estate under this will for the use and comfort of my said daughter, but he is directed to administer it économically and for her comfort only, so that at her death a goodly portion may be left for my said grandchildren.” Petitioner asked the court to require the executor to pay her an annuity, and to order the executor to pay her attorney’s fees for filing the petition. The court was asked to construe the will as to the rights, powers, and duties of the executor-trustee, and define the use and benefits of said estate intended by the testator to go to petitioner, and to direct the trustee how to manage the estate. The court was asked to fix the title of the notes assigned by the deceased to petitioner in her, but nothing said in the prayers about canceling the deed to Mrs. Stephens. In the first place, we can see nothing ambiguous in the will; it is so plain that nothing is left to construction. No one seems to question petitioner’s title to the assigned notes, and there is nothing in the record to suggest that the lots conveyed to Mrs. Stephens form any part of the estate; they having been conveyed to Mrs. Stephens during the life of the testator. There is no reason to suspect that the executor was not perfectly willing and ready to carry out the directions of the testator, and there is no intimation that any differences have arisen between the beneficiaries as to the construction of the will. The executor has not asked the court to instruct him as to his duties, and, indeed, so far as this petition is concerned, we can see no reason why the court should be called upon to construe the will. The petition suggests difficulties; but upon examination of the suggestions we find nothing substantial in any of them. — 19 — If the petitioner and the executor cannot agree about the amount of the annuity to be paid to her, of course, it is within the power, and it is the duty, of the chancery court to settle this matter. This petition does not aver that any such conflict has arisen. We can see no reason why the estate should be taxed with petitioner’s attorney’s fees. We think the petition is multifarious; we think there is no reason for the court to construe the will. The deed made to Mrs. Stephens and the assignment of the notes to petitioner are perfectly valid, and are not inconsistent with the will. Upon a proper showing the court could fix the amount to be paid-petitioner out of the estate. Reversed and remanded.