Opinion
No. 38263.
February 18, 1952.
1. Wills — trusts — direction as to sale of named property and payment to named beneficiaries.
The will of a wife appointed her husband as executor and directed that her residence property be sold by her executor within two years after her death and that out of the proceeds each of her three named sisters shall be paid $1,000.00: Held that the named sisters had a vested interest in the homestead property to the extent of $1,000.00 each; that the executor had no discretion whether to sell the property but that he must sell it and if on the sale it brings less than $3,000.00, the sisters will be entitled proportionately to the proceeds.
2. Wills — trusts — acceptance of benefits — homestead.
When under the will above mentioned twelve other pieces of real estate were divided with the husband as the chief beneficiary therein, and he qualified as executor, took charge of the other property and sold it, he was thereby precluded from claiming homestead rights in the residence property, for having accepted all other benefits of the will, he may not renounce its provisions as to the homestead.
3. Limitation of actions — trusts.
Where under the will aforementioned the husband had not filed any account as trustee and had not renounced the trust, the ten-year statute of limitations never became operative against the named sisters as beneficiaries under the will.
4. Laches — trusts.
When under the will aforementioned the husband had been occupying the residence all the time since the death of the testator, a plea of laches interposed by him against the sisters is not maintainable, since laches is not mere delay but delay that works a substantial disadvantage to another.
5. Trusts — tax sale — collusion between trustee and tax purchaser.
When the husband having trust funds in his hands sufficient to pay the taxes on the residence property mentioned in the foregoing headnotes wilfully failed to pay the taxes but by collusion with another party, to whom he furnished the money, the latter purchased the property for delinquent taxes and then conveyed it to the husband, such sale and such deed did not affect or lessen the beneficial interest of the named sisters in the property.
Headnotes as approved by Roberds, J.
APPEAL from the chancery court of Leflore County; R.E. JACKSON, Chancellor.
Arthur Bruce and Means Johnston, for appellants.
It is fundamental that when a demurrer is filed to a bill of complaint, all of the facts alleged in the bill of complaint are admitted by the demurrer to be true.
The demurrer in the case at bar admits the following allegations in said bill of complaint, to wit:
(a) That the appellee, C.W. Baas, probated the last will and testament of his wife, Mrs. Ruth Baas, by decree of the chancery court of Leflore County, and that letters testamentary issued to him as executor of said estate; and as such, it was the duty of said executor to carry out the terms of said last will and testament.
(b) That the appellants in the case at bar are the sisters-in-law of the appellee, C.W. Baas, and the sisters of Ruth Baas, deceased; and that appellants at the time of the filing of the bill of complaint, were all over sixty-five years of age, uneducated and ignorant; and that appellee, C.W. Baas, constantly, since the death of his wife, represented to them that they had no interest in their sister's estate, and constantly concealed the fact that they had any interest in said estate, and that the appellants had confidence in the said C.W. Baas and believed what he said and relied thereupon and did not know the difference until sometime in May, 1949. And that said cause of action was concealed, and therefore not barred by the statute of limitations. Sec. 742 Code 1942; Lundy v. Hazlett, 147 Miss. 808, 112 So. 591.
(c) That appellee, C.W. Baas, entered into a combination and conspiracy with appellee, J.W. Rogers, to permit the home property to sell for the second half of the state and county taxes due thereon for the year 1936, with the understanding that J.W. Rogers was to purchase said property at said tax sale with the fraudulent intention of defrauding and depriving appellants of their interest in said estate; and that the said Rogers holds said property in trust for the said C.W. Baas.
(d) That it was the duty of the defendant C.W. Baas, as executor, to advise complainants of said will and of their interest therein, but he wilfully neglected to do so, and fraudulently concealed their interest in said home property, and by false representations attempted to secure a quitclaim deed to said property from complainants for a nominal consideration.
The chancellor and the court below seems to have been misled by the fact that said home property described in said last will and testament of Mrs. Ruth Baas was a homestead; and therefore, complainants had no rights therein until after his death.
The appellee, C.W. Baas, did not have a homestead right in the property of his wife at the time of her death; and besides that, the appellee, C.W. Baas, qualified as executor of the last will and testament of his wife, Ruth Baas; and that the last will and testament of his wife, Ruth Baas, provided that said home property shall be sold within two years after her death, and the proceeds of said sale divided. The appellee, C.W. Baas, was familiar with the said terms of said will. He had a right to accept or reject the terms of said will, if he was dissatisfied; and on the other hand, if he qualified as executor under the terms of said will, he subscribed to the terms thereof and it was his solemn duty to carry out the terms thereof. West v. West, 131 Miss. 880, 95 So. 739, 29 A.L.R. 226; Utermehle v. Norment, 197 U.S. 40, 25 S.Ct. 291, 49 L.Ed. 655, 3 Ann. Cas. 520.
Appellee, C.W. Baas, was named as executor under said will and testament; he was the husband of the testator. He did not renounce said will, but on the other hand probated said will, and had himself appointed executor as provided in said will; and therefore adopted said will, and elected to take his share under the terms of said will, and is estopped from pleading that said home property was homestead property; but was compelled under said will to sell said home property within two years after the death of his wife; and distribute the proceeds of said sale to complainants and others as provided by the terms of said will. Turner v. Turner, 30 Miss. 428; Nash v. Young, 31 Miss. 134; Norris v. Callahan, 59 Miss. 140; Osburn v. Sims, 62 Miss. 429; Kelly v. Alred, 65 Miss. 497, 4 So. 551.
Under the terms of the last will and testament of Ruth Baas, deceased, it was the duty of the appellee, C.W. Baas, as executor under the terms of said last will and testament to advise the appellants of the terms of said last will and testament and of their interest in said property. This he did not do, but fraudulently concealed from appellants their interest in said estate, and fraudulently represented to appellants that they did not have any interest in said estate. Under the terms of said last will and testament, it was the duty of said appellee, C.W. Baas, as executor of said estate, to sell said home property occupied by him as a home and to distribute the proceeds thereof as provided by the terms of said will. This he neglected and failed to do. The bill of complaint charges that the appellants were old, uneducated, without business experience in life, and that the appellee, C.W. Baas, took advantage of them and concealed their interest in his wife's estate. The bill of complaint charges that the appellants were in necessitous circumstances and if they had known of their interest in said estate, they certainly would have taken some action to protect their rights long ago. It certainly does not stand to reason that these three old ladies in destitute and necessitous circumstances would stand by these many years without taking some steps to protect their interest, if someone had not lulled them into inactivity by misrepresenting and concealing the facts of the case.
Pollard Hamner, for appellees.
I. Homestead, disposition under will; surviving husband, rights under will. Caine v. Barnwell, 120 Miss. 209; Sec. 669 Code 1942.
II. Election. 1 Pomeroy Equity Jurisprudence, (4th Ed.), Sec. 472.
III. Action premature.
IV. No fraud, concealed or otherwise. Sec. 742 Code 1942; First Nat. Bank of Laurel v. Johnson, 177 Miss. 643, 171 So. 11; 39 Am. Jur. 238.
V. Laches and limitations. Comans v. Tapley, 101 Miss. 203, 57 So. 568, citing Pomeroy.
1. Under the definite instructions of the testatrix' will C.W. Baas was not required to sell the home property except for a valuation in excess of $3,000.00 and the bill does not charge that the property was worth $3,000.00 and only that six years later it was assessed for only $1100.00.
2. Assuming that the will may be construed to order a sale of the property, C.W. Baas had a homestead right therein as long as he lived or, if not a full right, then he had a right to a one-half interest in the proceeds of sale, making it impossible for him to comply with a sale of the property.
3. There is no question of election involved in this case as the facts do not set up a case for election.
4. The action is premature in that the appellants had no present interest, no interest that was descendable nor transferable and only a possibility of an interest in case C.W. Baas died before they did. This was not even a contingent interest.
5. While the bill says a fraud was perpetrated upon appellants, a construction of the will shows that fraud was impossible as the whole authority and obligation of the trustee, C.W. Baas, was founded on his right to handle the property as he saw fit and as to him seemed meet and proper. No concealed fraud can be claimed under the authority of First National Bank of Laurel v. Johnston, supra.
6. Under the rule in Comans v. Tapley, supra, and under the allegations of the bill itself, appellants are barred by their own laches and by the statutes of limitation.
The three appellants filed their bill in this cause praying that (1) defendant, C.W. Baas, be required to sell trust property and pay to each of them $1,000, or (2) that said trustee be removed and another appointed and the substituted trustee be required to fulfill the trust, and (3) that Baas pay to them rentals on the trust property, all as required of said Baas under the will of his wife Mrs. Ruth Baas, and (4) that a tax sale of the trust property to appellee, Rogers, be set aside.
General demurrer of respondents was sustained and complainants appeal. The demurrer sets up a number of grounds. We do not know on what ground it was sustained in the lower court. We will pass upon the points argued here which we deem sufficiently serious and doubtful to call for discussion and decision.
It is argued there is no equity on the face of the bill.
The bill alleges that Mrs. Ruth Baas, wife of appellee C.W. Baas, and sister of complainants, on October 16, 1930, executed a last will and testament, in which she named Baas as executor and trustee. One provision of the will reads: "It is my will that the residence property which I now occupy as a homestead in the City of Greenwood, Leflore County, Mississippi, known as No. 1213 Mississippi Avenue, shall be, within two years after the death, sold by my husband, C.W. Baas, at such price in excess of Three Thousand Dollars ($3,000.00) as to him shall seem meet and proper, and that out of the proceeds of the sale of the said homestead he shall give and deliver to my three sisters the aggregate sum of Three Thousand Dollars ($3,000.00) as follows: To Mrs. Malissa Roberts the sum of One Thousand Dollars ($1,000.00) to Mrs. Josie Fellows the sum of One Thousand Dollars ($1,000.00), to Mrs. Maggie Leftwich the sum of One Thousand Dollars ($1,000.00), and to my said husband, C.W. Baas, shall retain for himself all of the proceeds of the said sale of said homestead in excess of the said sum of Three Thousand Dollars ($3,000.00)."
Item II devises to Baas all of testator's real property in Leflore County, Mississippi, not devised in Item I "to have and to hold as trustee, in trust to the following uses and purposes, to-wit:
"The said trustee shall, during his lifetime handle the said real estate in such manner as he may see fit, and it is my will that my said husband, C.W. Baas, shall have full and complete authority to sell for cash, or on such terms as he may see fit, mortgage or in any manner dispose of any part, or all of the property herein bequeathed to him in trust, and shall deliver to my said three sisters such part of the net income from the estate hereby bequeathed in trust as he may see fit, and it is my will that the said C.W. Baas shall have full right, power and authority to have all necessary repairs and replacements made on any of the property hereby bequeathed in trust, and shall exercise as full and complete power and authority over all of the said trust estate as I, myself, might do if personally present, it being my intention only that my said husband shall deliver to my said sisters during his lifetime such net amounts out of the income of said estate as he may see fit, whether the same may be by him sold and converted into personal property or not, my said husband having the right to sell and reinvest the said property."
Item IV of the will is as follows: "Upon the death of my said husband, C.W. Baas, all of the property that might be held by him as trustee aforesaid, shall be equally divided between any of my said sisters, who might be living at that time, and such sisters of my said husband, C.W. Baas, as might be living at the time of his death. The names of the sisters of my said husband, C.W. Baas, are as follows: Mrs. Julia Davidson, Mrs. Minnie Steingruber, Mrs. Lena Parmin and Mrs. Katie Unterreinter. It is my intention that none of the heirs of the said sisters shall take by representation, and that the said trust estate in the hands of the said C.W. Baas at the time of his death shall vest in only such of the above mentioned sisters of myself and of my said husband as may be living at that time."
The will then devises and bequeaths to Baas all other property of testatrix not specifically devised and bequeathed above. It appoints Baas executor and trustee without bond, directing him to "take over the administration of the said trusteeship immediately upon the conclusion of his duties as executor under this will". He is relieved of the necessity of giving bond and accounting to court, testatrix saying she reposed the utmost confidence in him.
Mrs. Ruth Baas departed this life in December, 1930. A few days thereafter C.W. Baas, by petition, presented the foregoing instrument to the chancery court of Leflore County and asked for the probate thereof and that he be appointed executor and trustee, which was done.
Testatrix left some twelve pieces of real property in the City of Greenwood, including her home, in which she and Baas resided, and in which, it appears from the bill, he has continued to reside and was so residing at the time of the filing of the bill herein.
The bill avers that Baas took charge of all of the property of the estate and has sold the above real property except the home; that he falsely represented to complainants they had no interest whatever under the will; that complainants range in age from 66 to 79 years of age; that they are very poor people; that the three live in a run-down house near the city limits of Greenwood; that they did not know they had an interest in the property; they relied upon the statements of Baas; that they have been living off of public charity; that recently Baas came to them to get them to sign a quitclaim deed to the homestead property, and they then investigated and found they are entitled to have the home place sold and each be paid $1,000 from the proceeds thereof.
(Hn 1) Baas takes the position that complainants have no vested interest in any property of testatrix under the will; that it is within his discretion as to whether he will sell the home place. The contention is not well taken. It is not within the discretion of Baas, under the terms of the will, as to whether he will sell that property. The will provides that it be sold and complainants be paid $3,000 out of the proceeds. Baas says it is not shown the property would bring $3,000 at a sale. If not, then complainants are entitled to their respective proportions in the purchase price. Apparently, it is worth much more than that sum, but, if not, that would not defeat the rights of complainants to the proceeds thereof. We have directed what we have said to the rights of complainants in what is called the homestead property. We do not decide whether they are vested with an interest in other property of the testatrix. The interest they have in the homestead is enough to meet the argument that they show no vested interest in the property left by the testatrix.
(Hn 2) Baas says the bill shows that the property at 1213 Mississippi Avenue, on which complainants endeavor to impress a lien, was the homestead of Mrs. Ruth Baas and appellee, C.W. Baas, and that it is his homestead now, and that he has the right to claim it as such homestead and defeat the rights of complainants under the will thereto. Baas has not renounced the will. On the other hand, he had it probated, got himself appointed executor and trustee and has proceeded to sell all of the property except this homestead, and would have sold that, according to the bill, but the prospective purchaser demanded that complainants convey their interest in the property. Baas has accepted all benefits under the will. He cannot accept part of its provisions and renounce others. Kelly v. Alred, 65 Miss. 495, 4 So. 551.
(Hn 3) Baas pleads the ten-year statute of limitations. He has not filed a final account as trustee, nor has he renounced the trust. The statute of limitations has never become operative against complainants as beneficiaries under the will. Bailey v. Sayle, 206 Miss. 757, 40 So.2d 618.
(Hn 4) Baas pleads laches. Laches is not mere delay but delay that works a substantial disadvantage to another. Bailey v. Sayle, supra. No disadvantage to Baas is shown here. On the other hand, the delay has been of great benefit to him. He has been using the property all of this time.
(Hn 5) The homestead property sold for taxes September 20, 1937, to appellee, J.W. Rogers. The bill charges, and, of course, the demurrer admits, that this sale was by collusion between Baas and his stepson Rogers; that Baas had a large sum of money in his possession from the handling of the trust property in which complainants had an interest; that it was his duty to pay the taxes, and he wilfully failed to do so with the intent of defrauding complainants out of their interest therein; that he furnished to Rogers out of the trust funds the money with which to pay the taxes; that Rogers was acting for Baas, and that Baas has admitted that Rogers has made to him, Baas, a deed to the property, which deed Baas, with intent to deceive and defraud, has refused to place of record. Under that charge the interest and rights of complainants in the property sold for taxes have not been lessened or affected as between them and respondents.
Reversed and remanded.
Hall, Lee, Kyle and Ethridge, JJ., concur.