Phillips v. Tynes

75 So. 775, 114 Miss. 775

Opinion

Stevens, J.,

delivered the opinion of the court.

Appellant presented a petition to the chancery court of Lee County to construe the will of W. D. Tynes, Sr., and the codicil thereto. Appellees answered the petition, and while the record presents, in addition to the pleadings, certain testimony, a proper construction of the codicil will, in our opinion, dispose of the law points relied on by counsel for appellant. The portion of the codicil pertinent to the present inquiry is as follows:

“Second. I desire to provide by this said will as follows with reference to Tynes Phillips, tbe only child of my deceased daughter, Blanche, and William Leard Keown, the only child of my deceased daughter, Helen, it being my intention that the share in my estate which was bequeathed to their mother or descendants, respectively shall be bequeathed to my sons, W. D. Tynes, Jr., and A. M. Tynes, as trustees and to the survivor upon the following trust:

“I do hereby bequeath and devise to said W. D. Tynes, Jr., and A. M. Tynes, as trustees and to the survivor of them all of that part of my estate which was bequeathed by my said last will and testament to my daughters Blanche, the wife of Henry Phillips, who has died, leaving one son, Tynes; and all that part of my estate which was bequeathed by my said last will annd testament to the child of my daughter, Helen, the wife of S. L. Keown, who has also died, leaving one son William Leard Keown. Said trustees shall he vested full legal and equitable title in and to these portions of my estate referred to in this item, to be held and dealt with or sold, reinvested or distributed, according as they in their discretion deem proper, hereby vesting in said trustees full and final authority, discretion and power over the same, both as to the management, control and disposition of said interest in my estate and as to the manner, time, and extent to which said interests or the proceeds or income thereof shall be paid to or expended for or in their interest of my said grandson, Tynes Phillips (out of the corpus) income or proceeds, of the portion bequeathed by my said will to my daughter, Blanche, or her heirs and of my grandson, Wm. Leard Keown (out of the corpus) income or proceeds of the portion bequeathed by said will to him provided further that in the event of the death without surviving children of either of my said grandson before the final distribution by said trustees of the respective interest in my estate covered by this item, the balance remaining of the portion of my estate set apart for distribution, in the sole discretion’ of said trustees, in the interest of such deceased grandson shall revert to my other children or their descendants who shall then be living and be equally divided among them by representation.”

It is contended that the portion of the will and codicil above copied violates section 2765 of the Code, our statute, against perpetuities. The argument of counsel is that the testator' has undertaken to vest the trustees with the full legal title to the trust estate with absolute power to dispose of the estate in fee; that the testator in so doing has separated for an unlawful time the legal title and the beneficial interest sending the legal title down one line and the beneficial title down another without providing for their uniting within the period fixed by our statute against perpetuities. It is argued that the two trustees jointly constitute the first donee, the survivor of the trustees the second donee, and that if the survivor should die before the beneficiary of the trust, the legal title would descend to the heirs at law of the trustee still charged with the trust, and the heirs would thereupon become a third donee, etc. Counsel, in our judgment, misconceive the purpose of our statute. We confess it is not altogether easy to gather from the language of this 'statute the exact legislative intent. Mr. Gray in his work on Perpetuities refers to ■our statute as “this odd and confused statute.” We do not believe, however, that the statute intended to characterize a trustee as a donee. In the present case Tynes Phillips would .be the donee instead of the trustee. It is trpe that the will attempts to invest the full estate in the trustees to be handled and disposed of according to their discretion, and it is doubtful whether Tynes Phillips took any estate whatever in the property itself, as his only interest is in the income or proceeds. Be this as it may this is not a contest by the creditors of Tynes Phillips, and we are not called upon to characterize the estate; that is, to say whether the trustees took a life estate with power of sale or to apply to it any paticular nomenclature.

We may be aided in construing our statute by remembering the reasons that induced the courts to adopt the rule against perpetuties. One of the essential features is that it is a rule against remoteness. Under the terms of Mr. Tynes’ will the trust would be administered during the life of his grandson, a fixed and certain period of time. If the grandson should die without ■surviving children, any remaining portion of the estate '“shall revert” to the other children or descendants of the testator. The full disposition of the title will be determined upon the death of the grandson. This is a •contingency in no wise remote under the rule against perpetuities, and the rule against remoteness is not violated. According to many authorities, one of the primary inducements for adopting the rule against perpetuities was to prevent title to property from being inalienable for too long a time. In the instant case the trustees have full power to convey a good title even during the life of the trust, and so it is that this rule against inalienability is not violated. There is, then, no 'merit in the argument that Tynes Phillips took a fee-simple title because of any violation of our statute. The statute, in our judgment, is not violated.

In the conclusion reached by ns we do not 'approach the question of what estate Tynes Phillips would take in event the statute were violated, or the question upon whom the legal title would devolve in event both trustees should die during the lifetime of the beneficiary of the trust. We can conceive of a case where the testator might invest a trust company with the legal title for the benefit of a minor or spendthrift, or a case where the chancery court would be called upon to name several trustees during the life of the beneficiary. The statute was never designed to regulate the number of trustees.

Affirmed.