Virginia Trust Co. v. Buford

Smith, C. J., delivered the opinion of the court. This is an appeal from a judgment overruling a demurrer to a bill of complaint. Two amended bills, neither in any way referring to the one preceding, were filed, and, while all three of the bills appear in the record, the allegations contained in the one last filed will alone be considered. Williams v. Meridian L. T. & Ry Co., 110 Miss. 174, 69 So. 596; Ventress v. Wallace, 111 Misc. 357, 71 So. 636, L. R. A. 1917A, 971. The allegations of this bill in substance are that John D. Eagland, a citizen of the state of Virginia, died leaving a will in words and figures as follows: “I, John D. Eagland, of the city of Petersburg, in the state of Virginia, do make and ordain this as my last will and testament. “First. I bequeath all the real estate of which I may die seized and possess, as well as what I now own as what I may hereafter acquire, to my friend, Eichard G-. Pegram, of the city of Petersburg and state of Virginia, and my son-in-law Macon Martin as trustees for my four children, a son and three daughters upon the following terms and conditions, to-Avit: “The said trustees shall rent or lease out my said real estate during the lifetime of my said four- children and until the- death of the last survivor of them, and account to them for the net rents and profits thereof, for their sole and separate use, free from the control of the present hus — 594 — band or any future husband of my married daughter and from that of any husband of my single or unmarried daughters in the event of their marriage hereafter, and free from all liability or responsibility ¡for the debts or contracts of such husband or husbands, and in the case of the death of either of my said children without leaving issue, shall account for such rents and profits accruing after such death to the survivor or survivors and the issue of such as may have died leaving issue; but in case of the death of any one leaving issue, such issue to taire the share of the deceased parent. I also desire that the said trustees shall have the power to sell any part of said real estate and invest the proceeds of sales in other real estate to be held by them on the same terms, provided they deem it ad visible and provided my said children or such as may then be living, in writing give their sanction to such sale and also to such investment of the proceeds of such sale. “Second. All of the rest and residue of my estate, after payment of my debts, I desire shall be equally divided amongst my children who may be living at the time of my death and the issue of any who may have died leaving-issue, such issue to take the share of their deceased parent. “Lastly, I appoint my friend, R. G-. Pegram and my son-in-law, Macon Martin, executors of this my last will and testament. “As Avitness my hand this 5th day,of December, A. D. 1868. John D. Ragland.” Ragland owned at the time of his death, among other property, land situated in this state, and left surviving him three children, tAvo of whom are still living. One of these children died leaving three children, whose interest in Ragland’s estate was purchased from them by the appellees herein. Ragland’s will was probated in Alabama and in Virginia, but it does not' appear from the last amended bill whether or not it has been probated in Mississippi. Martin died during Ragland’s lifetime, but — 595 — Pegram survived Mm, qualified, and acted as, trustee under the will until Ids death, whereupon the Virginia Trust Company was appointed ns his successor by a Virginia court, the jurisdiction of which is not challenged. The Virginia Trust Company with the consent of Ragland’s surviving children sold the land situated in this state and owned by Ragland at the time of his death, and the prayer of the bill is that this sale may be set aside as a cloud on the title or interest of the appellees. The original bill Avas filed while the sale was being negotiated and prayed that its consummation be enjoined. The second amended bill was filed after the sale had been made and the deed from the trust company to the purchaser had been executed. The parties complainant are the purchasers of the interest in Ragland’s estate Avhich vested in his deceased daughter, hereinbefore referred to,, and the defendants are the trust company, the purchaser of the land, and the claimants under the will. A demurrer interposed by the appellants, to this bill of complaint Avas overruled and an appeal granted to settle the principles of the case. One of the contentions of the appellants is that it does not appear from the bill that the appellees have any interest in the land. The ground of this contention is that the claim of the appellees to an interest in the land is under tiie will and that it does not appear from the bill that it has been probated in Mississippi. Unless this will lias been probated in Mississippi, it is ineffectual as an instrument of title to the land here in question. Fotheree v. Lawrence, 30 Miss. 416; Wells v. Wells, 35 Miss. 638; Crusoe v. Butler, 36 Miss. 150, and until it has been so probated the land must be dealt with as if Ragland had died intestate. In either event the petitioners have an interest therein; that is, the interest that came to Ragland’s deceased daughter; under whose heirs they claim, either under the will if probated, or, if not, under the statute of descent and distribution. If the will has not been probated, the appellants have no enforce — 596 — able interest in the land Avhatever; but since tbe appellees admit that they have such an interest therein as may have been conferred by Ragland’s Avill, and that if the poAver of sale therein given can be exercised by the Virginia Trust Company then the sale by it is valid, AAre will ansAver the next, and main, question 'in the case, which is: Can the power of sale be conferred on the original trustees in the will be exercised'by their successors in office? When a person has been appointed a trustee, by the order of a court of competent jurisdiction, he sustains the character of trustee as completely, as if he had been invested AAdth it by the instrument creating the trust, and as a general rule may exercise all the powers and authority conferred on the original trustee that are necessary for the discharge of his duties, for otherwise the trust Avould fail for want of power in the trustee to execute it. “Where, however, a power given to the original trustee is of a kind that indicates a personal confidence, it Avill prima facie be confined to the individual to whom it is given, and will not without express words pass to others, to whom by legal transmission the character of trustee may happen to belong; and though the estate with the trust attached to it will be in the trustee appointed by the court, yet the power (being one of that description) will be extinct.” 4 American Ed. Hill on Trustees, 381; Ex parte White, 118 Miss. 15, 78 So. 949, L. R. A. 1918E, 1065; Cole v. Wade, 16 Ves. Jr. 27, 33 Eng. Reprint, 894; 21 R. C. L. 789; 26 R. C. L. 1338; 1 Perry on Trusts (6 Ed.), 469; 2 Perry on Trusts (6 Ed.), 804; and cases cited in notes to Whitaker v. McDowell, 16 Ann. Cas. 326, and Wilson v. Snow, 50 L. R. A. (N. S.) 604. In other words, whether a power given to the original trustee can be exercised by his successor depends on the intention of the donor as expressed in the Instrument by which the power is given. If the power is annexed to the office of the trustee, then it is clear that the donor intended for it to be exercised by any person who for the time being should occupy that office, but if given to the original trms — 597 — tee, not ratione officii but because of special confidence reposed in him by the donor, then it is equally clear, unless the instrument by which it was created provides otherwise, that the donor intended it to be exercised by the original trustee only. The contention of counsel for the appellant is that the test by which to determine whether a power can be exercised by a successor to the original donee thereof is whether or not it is coupled with an interest, if it is then it can be so exercised; otherwise not. But this statement of the rule is only partial. A naked power can generally be exercised only by the donee thereof,- but if coupled with an interest or with a trust can be exercised by any successor of the donee unless it is of such character as to indicate that it was given because of the confidence of the donor in the donee. The question for decision, then, is:. Was the power to sell the lands devised in trust for the testator’s children given because of the confidence of the testator in the original trustees? This question must be answered in the affirmative, for it has been settled by former decision of this court that where the exercise of a power is not necessary for the execution of a trust, as is the case here, and rests in the discretion of the trustee, it must be deemed prim a facie to be based on personal confidence in the trustee named in the instrument by which the trust was created. Montgomery v. Milliken, Smedes & M. Ch. 495; Id., 5 Smedes & M. 151, 43 Am. Dec. 507; Bartlett v. Sutherland, 24 Miss. 395; Whitfield v. Thompson, 85 Miss. 760, 38 So. 113; Ex parte White, 118 Miss, 15, 78 So. 949, L. R. A. 1918E, 1065. Affirmed and remanded, with leave to the appellants to answer within thirty days after the filing of the mandate in the court below. Affirmed. — 598 — On Suggestion of Error. In response to the appellant’s suggestion of' error we will say that our liolcling that until the will here in question has been duly probated the title to the land therein devised must be determined as though the testator had died intestate is in accord with Pratt v. Hargreaves, 76 Miss. 955, and assuming for the sake of argument that whether or not the power to sell conferred by the will upon the original trustees therein can be exercised by a substituted trustee must be determined by the law of the testator’s domicile, to-wit, the State of Virginia, we understand the law of that state, in this connection, to be in accord, with that of the State of Mississippi and as set forth in our former opinion. Brown v. Armistead, 6 Rand. (Va.), 594; Mosby v. Mosby, 9 Grat. (Va.), 584; Davis v. Christian, 15 Grat. (Va.), 11; Dillard v. Dillard, 97 Va. 434; Hughes v. Williams, 99 Va. 312. Overruled.