Barry v. Barry

Full title: BARRY v. BARRY et al

Court: Supreme Court of Mississippi, In Banc

Date published: Sep 24, 1945

21 So. 2d 922 (Miss. 1945)

21 So. 2d 922

Opinion

No. 35829.

April 23, 1945. Suggestion of Error Overruled September 24, 1945.

1. EXECUTORS AND ADMINISTRATORS.

Evidence sustained finding that agreement among heirs that testator's son who was co-executor was to stay on plantation and manage it on same basis as he had managed it for testator had not been established.

2. EXECUTORS AND ADMINISTRATORS.

The chancery court has power to authorize executor to continue business of testator, but without such authority estate is not liable for salary of executor for conducting business on any basis of quantum meruit.

3. EXECUTORS AND ADMINISTRATORS. Trusts.

The acceptance by an executor or trustee of an appointment under will whether under a stated compensation or where none is provided, except where a statute fixes it, is conclusive of any right to an increased compensation.

4. EXECUTORS AND ADMINISTRATORS.

Where it is not within province or duty of executor or trustee to perform services, he should employ some one to render them, or if he himself is to be employed, such undertaking must be on agreement of court or other heirs or beneficiaries.

5. EXECUTORS AND ADMINISTRATORS. Trusts.

An executor or trustee cannot accept his appointment and reject condition as to compensation on which it is made.

6. EXECUTORS AND ADMINISTRATORS.

Where testator, who had employed his son to manage plantation, designated son as co-executor and co-trustee and provided for payment of $100 per month to son for services in attending to general business interests of estate and in carrying out will, even if the $100 per month was not intended to cover services for managing plantation, the son was not entitled to additional compensation for managing plantation after testator's death, where son had not obtained court's consent to make charge before rendering services.

7. EXECUTORS AND ADMINISTRATORS.

Evidence sustained chancellor's finding that executor had accounted for funds represented by cash tickets.

8. EXECUTORS AND ADMINISTRATORS.

Where executor used due care in selection of employee whose ability and integrity were highly recommended, executor was not responsible for shortage occasioned when the employee overdrew his account.

9. EXECUTORS AND ADMINISTRATORS.

Evidence sustained chancellor's determination that executor was not liable for rent on property used by executor for his own business and by executor and other members of family in attending to affairs of estate.

10. DEEDS.

Record established that deed from son to father was executed on valuable consideration and that its validity was not assailed by any competent proof.

GRIFFITH and McGEHEE, JJ., dissenting in part.

APPEAL from the chancery court of Leflore county, HON. R.E. JACKSON, Chancellor.

Means Johnston and J.O. Eastland, both of Greenwood, for appellant.

This is a suit by the second wife and set of children of W.S. Barry, deceased, against the only child of the first marriage of the said W.S. Barry, deceased; and the stepmother and half-sisters of W.S. Barry, Jr., seek to fasten liability upon their stepson and half-brother for recovery of compensation drawn by the said W.S. Barry, Jr., through the plantation accounts of W.S. Barry Company, for services rendered by him for a period of five years as general manager of the plantation owned by said estate at Shellmound, Mississippi, divided into two parts, to-wit: Rixwood Plantation, and Shellmound Plantation, consisting of a total of 4,260 acres in cultivation; and they contend that his compensation under the last will and testament of W.S. Barry, deceased, was fixed at $100 per month for all services rendered by him on behalf of said estate and that he was not entitled to draw additional compensation for said additional services rendered by him as general manager of said plantation. The said defendant, W.S. Barry, Jr., denies such liability and says by way of defense: (a) that said services rendered by him as general manager of said plantation were not provided for under said will and were additional and necessary services; (b) that under the terms of said will, it was not his duty as co-executor of said will to perform said services as general manager of said plantation, that he and his coexecutor could have employed some other competent person as general manager of said plantation and paid him a reasonable salary for the performance of such duties; (c) that said services rendered by him were rendered at the special request of said Caralisa Barry Pollard, his co-executor, and at the special instance and request of each and all of the cross-defendants, under the same terms and conditions as his continuing contract with his father during his lifetime; (d) that in 1926, he entered into a contract with his father as general manager of said plantation and that said contract was a continuing contract which remained and continued in force from said time up to and including the year 1938, and after the death of the said W.S. Barry, Sr., it was renewed, reaffirmed, consented to, and acquiesced in by all of the cross-defendants, and that in pursuance thereof, said contract was fully performed by the said W.S. Barry, Jr.; (e) that after the death of the said W.S. Barry, deceased, it was agreed among all of the parties hereto that there should be no change in the management, conduct, or operation, or of the compensation of W.S. Barry, Jr., but that said plantation business was to proceed in the same manner, and under the same conditions, as it had theretofore proceeded, during the lifetime of the said W.S. Barry, deceased, and it was so managed, conducted and operated under the same name of W.S. Barry Company; (f) and if mistaken in the foregoing contentions, then we say that said services were rendered by W.S. Barry, Jr., as trustee under said last will and testament, and that as such trustee he was entitled to a reasonable compensation for said services rendered; (g) that said salary credited to him as the general manager of said plantation business was, and is, reasonable and proper under his foresaid contract, and that he was, and is, justly entitled to receive said compensation.

In order to determine whether or not the compensation of $100, as provided in said last will and testament of W.S. Barry, Sr., as co-executor of said estate is conclusive, it is necessary to study the contents of said will, in order to reach the intent of the said testator. Section 3 of said will devised unto his daughter, Caralisa Barry, the sum of $10,000 as compensation for her services in attending to the legal work of his estate and carrying out the provisions of his will, payable at the rate of $2,000 per annum. Section 4 of said will devised to his son, W.S. Barry, Jr., the sum of $6,000, to be payable to him at the rate of $100 per month for his services in attending to the general business interests of his estate and in carrying out the provisions of his will. Item 5 of said will devised all of the remainder of his property as follows: An undivided two-fifths interest to W.S. Barry, Jr., and Caralisa Barry, share and share alike, and unto the said W.S. Barry, Jr., and Caralisa Barry, as trustees, and in trust for the use and benefit of his wife, Mrs. Josephine H. Barry, and his daughters, Josephine S. Barry and Wingfield Barry, an undivided three-fifths interest; and provided that his executors and trustees, when acting as such or either, shall have full and complete power jointly to sell, incumber, assign, hypothecate, mortgage, manage, invest, re-invest, or transfer any part of his estate, to extend the time of payment of any indebtedness due his estate, and to handle generally his business interests for a period of five years from the date of his death.

Item 6 provided that his estate should be kept intact for five years from the date of his death, but if the judgment of his executors and trustees so warranted, it might be divided earlier. Item 8 of said will appointed W.S. Barry, Jr., and Caralisa Barry joint executors of his will, with the powers above enumerated.

In order to determine whether or not it was the intention of the testator that said compensation of $100 per month was conclusive of the right of the said W.S. Barry, Jr., to draw additional compensation as general manager of said plantation, it is necessary to read it in the light of the surrounding circumstances at the time said will was executed.

What were the circumstances surrounding W.S. Barry, deceased, at the time he executed said will? What was the situation existing at the time W.S. Barry, deceased, executed said will? The circumstances surrounding him and the situation existing at said time are material in determining the question as to whether the salary of $100 per month to W.S. Barry, Jr., as executor, was conclusive of his rights to draw compensation as general manager of said plantation. The facts of this case show that W.S. Barry, deceased, was a resident of the City of Greenwood, and had been so for more than thirty-five years; that he and R.P. Parish operated a general insurance business for many years and operated the "Greenwood Agency" at 221 Fulton Street in the City of Greenwood; that he subsequently gave his interest in this insurance business to his son, W.S. Barry, Jr.; that at all times he occupied an office in said building to operate his personal business; that the employees of the insurance business in said building at all times kept his books, collected rents, and looked after his personal affairs, free of charge, and that said insurance business was charged no rent; that the said W.S. Barry, deceased, prior to his death, was a very wealthy man, and his estate was worth more than a million dollars; that he owned plantations at Shellmound, consisting of over 6,000 acres, with 4,260 acres of said land in cultivation; that he owned a store, a gin, and a filling station; that there were between 125 and 150 tenants on said plantation; that he owned sufficient mules and farming implements to operate said plantation; that it took from $75,000 to $100,000 to finance said plantation; that he owned a large amount of rental property in the City of Greenwood, rental property and other property in Indianola, Columbus, Biloxi, and other places in this state; that he owned 1,100 acres of land in Monroe and Chick asaw Counties; also 453 acres of land in Lowndes County; also real estate in Alabama; that he owned U.S. Government bonds, levee, municipal, and county bonds, and notes of the appraised value of $487,167.65. The proof shows that W.S. Barry, Jr., was his only son, and that he was very anxious to have him qualify to look after his plantation at Shellmound; that he induced him to leave his home in Greenwood and move on said plantation in 1926; and that W.S. Barry, Jr., remained there from said time up until his father's death under a continuing contract from year to year, at an annual salary and a bonus based on part of the net profits. This was his situation at the time he executed his last will and testament; and in his last will and testament he provided that said estate should be kept intact for five years after his death and devised to his daughter, Caralisa Barry, the sum of $10,000 for her services in attending to the legal work of his estate and in carrying out the provisions of his will, payable $2,000 per annum; and he devised to his son, W.S. Barry, Jr., the sum of $6,000, to be paid at the rate of $100 per month for five years, for his services in attending to the general business interests of his estate.

The compensation of W.S. Barry, Jr., was for "services in attending to the general business interests of the estate." The executors and trustees were given unlimited authority as such, and were given the same powers as that possessed by Mr. Barry during his lifetime, and under said will were not specifically required to exercise the actual management of the plantations at Shellmound, or exercise such actual management of the plantations in Monroe, Chickasaw, or Lowndes Counties, but given general power to look after and attend to the general business interest of said estate. They could have employed any competent man as the general manager of said plantations or any of them, and paid him a reasonable salary. The words "general business interest" exclude the words "special business interest."

Webster's Collegiate Dictionary (4 Ed.), the word "general"; 28 C.J. 608, "general."

The will of W.S. Barry, deceased, has definitely fixed the compensation of W.S. Barry, Jr., at $100 per month for a term of five years for his services "in attending to the general business interests of my estate and carrying out the provisions of this will"; there is nothing in the will that requires W.S. Barry, Jr., or his co-executor, to exercise duties outside of the will, such as "general manager" of any one of these plantations; and, as heretofore stated, the joint executors of said will could have employed any other competent person as general manager of the Shellmound Plantations or general manager of any of the other plantations, and fixed his salary as such. The position of general manager of said plantation, or plantations, calls for services outside of W.S. Barry, Jr.'s, official duties as executor, and was not specifically provided for by the will. The joint executors and trustees of said will had unlimited power and authority to employ managers for said plantations and to employ additional help, if necessary, to do and perform any other services necessary and proper and for the best interest of said estate; there is nothing in the will which precludes the executors and trustees, and/or heirs at law, from employing W.S. Barry, Jr., for services outside of his official duties, such as general manager, of said plantations; and there is nothing in the terms of the will to have prevented the joint executors and trustees from employing one of the executors and trustees of said estate to perform services outside of his official duties, such as the manager of said plantation, or plantations. The said W.S. Barry, Jr., had performed services as general manager of said plantations at Shellmound, Mississippi, from 1926, up to the date of the death of his father, and the matter of a general manager of said plantations was left wide open, and, as stated, the executors and trustees, and/or the heirs at law of W.S. Barry, deceased, had full power and authority to contract and agree with W.S. Barry, Jr., or any other competent person, to perform such services. The facts are that W.S. Barry, Sr., in making said last will and testament did not intend that said compensation of $100 per month payable to one of the executors and trustees of said estate should cover services outside of his official duties; and when you take into consideration all of the facts and circumstances surrounding the testator at the time of the execution of said will, his ownership of the several plantations owned by him at the time of his death, his ownership of a large volume of rental property scattered around in various cities of the state, his ownership of stocks, bonds, notes and cash of the appraised value of $487,167.65; and the further fact that testator had provided in his said will that said estate should remain intact for a term of five years after his death; it is perfectly patent that what he intended was that W.S. Barry, Jr., should be compensated at the rate of $100 per month for looking after the general business interests of the estate, such as seeing that all of the plantations were maintained and operated, that all of the buildings on rental property were occupied and rents collected, that all taxes were paid, that all of the interest on the bonds should be clipped at regular intervals and the principal collected as and when due, and the interest on the large amount of notes and indebtedness should be collected as and when due and/or renewed for the best interests of said estate. It is perfectly patent that he had nothing else in mind. It is perfectly evident from said will that the executors and trustees of said will should have the right to employ general and special managers on said plantations, if necessary and proper to operate said plantations as the said W.S. Barry did during his lifetime, and that such particular services, such as general and special managers, were outside of W.S. Barry, Jr.'s official duties as one of the executors of said estate.

W.S. Barry, Jr., and his wife, Mrs. Marguerite H. Barry, both testified that several days after W.S. Barry, Sr.'s death, W.S. Barry, Jr., had a conference with his mother and sisters concerning the management and operation of said plantation at Shellmound, Mississippi; that Mrs. W.S. Barry, Sr., and Wingfield Barry were sitting in the library at the home of Mrs. W.S. Barry, Sr.; that Josephine Barry came in and said, "We have talked it over before Caralisa left, and we want you to stay upon the place and manage it on the same basis that you did before Dad died, we want you to do that"; that W.S. Barry, Jr., agreed to do that, and that he stayed there in pursuance of said agreement until the business was concluded in 1938. It is true that Mrs. W.S. Barry, Sr., Josephine Barry (now Josephine Barry Brown), and Caralisa Barry (now Caralisa Barry Pollard), denied this agreement, but it is strikingly strange that Wingfield Barry, who was present at the trial, did not take the stand and deny that such an agreement was made. There is another fact and circumstance which is strongly in favor of the contention and testimony of W.S. Barry, Jr., and his wife, Mrs. Marguerite H. Barry, that said contract was made, in this: that said contract was made several days after the death of W.S. Barry, Sr.; that the wife and daughters of W.S. Barry, deceased, who took the stand all admitted that he was a very successful business man; and it is but perfectly natural that there should have been a family counsel after the death of W.S. Barry, Sr., and it is perfectly human and natural that immediately after his death, there being great sorrow in the family, all of the heirs would want to conduct said business just as W.S. Barry, Sr., did during his lifetime. The witness, W.S. Barry, Jr., fully realized after the death of his father when said will was read and discussed that he had been designated as one of the executors and trustees of said estate and that he was to be paid a compensation at the rate of $100 per month for attending to the general business interests of said estate and in carrying out the provisions of said will, and fully realized that the executors and trustees of said estate could employ any competent man as general manager of the Shellmound plantations, or general manager of any of the other plantations of said estate, and fully realized that under the terms of said will he was not called upon to perform such services as general manager of said estate; and it is strikingly strange that he should attempt the general management of said two plantations at Shellmound, Mississippi, consisting of over 6,000 acres, of which 4,260 acres were in cultivation, for a term of five years without having some expressed agreement with his joint co-executor and trustee and the heirs at law of W.S. Barry, deceased. He had performed such services for his father from 1926 up to the date of his father's death in 1933, and it was but natural at the time that his mother and sisters would want him to remain on said plantation and conduct it in the same manner and under the same terms and conditions as same had been conducted by his father during his lifetime. It is true that his co-executor and trustee, Caralisa Barry, was not present at said family meeting, and it is also true that Wingfield Barry was past twenty years old at the time of said family meeting and would not be twenty-one until September 1933. If the testimony of W.S. Barry, Jr., and his wife, Mrs. Marguerite H. Barry, is to be believed, it is evident that Wingfield Barry and Caralisa Barry had conferred with each other and that Mrs. W.S. Barry, Sr., and Josephine Barry had conferred with each other, and that they had agreed among themselves as to W.S. Barry, Jr.'s management of said plantations, because at said meeting of the family, aforesaid, Josephine Barry announced that they had all discussed the matter and had agreed that W.S. Barry, Jr., was to continue the management and operation of the two plantations, aforesaid, on the exact terms and conditions as during the lifetime of his father. It will not do, at this late date, after W.S. Barry, Jr., has done and performed said services for five years, to say that they are not bound by said agreement, because after said agreement they permitted W.S. Barry, Jr., to operate said plantation under said terms and agreement and had never taken any action thereafter to repudiate or denounce said agreement but permitted W.S. Barry, Jr., to render valuable services as such manager of said plantation for five long years. It is true that Caralisa Barry Pollard, his co-executor and trustee, denies such agreement, but she admitted that from time to time she had gone up to Shellmound and checked and examined the books throughout said period of five years and that she had received monthly trial balances of the operation of said business. The proof shows that she received annual statements made by Taylor, Powell Wilson for the purpose of income tax payments; the proof and evidence shows that the account of W.S. Barry, Jr., on the books W.S. Barry Company at Shellmound, showed receipts of his salary month by month and year by year, and receipts of one-sixth of the net profits, or bonus; the proof shows that the said Caralisa Barry Pollard, his co-executor and trustee, obtained information in 1933 to the effect that W.S. Barry, Jr., was drawing a salary as general manager of said business, and one of the annual reports showed that he was drawing one-sixth of the net profits as compensation as general manager of said plantations; and the testimony of other witnesses showed that Caralisa Barry Pollard had examined the salary account of the various employees of W.S. Barry Company and had remarked in the presence of several that all were getting more salary than they deserved. It will not do at this late date, after all of said services have been performed, to now say that she did not know that W.S. Barry, Jr., was drawing a salary and a bonus during said period of time, because the facts in this case show that she did know. Notwithstanding the fact that she admitted that he was drawing a salary during said period of time, it is passingly strange that she did not mention said matter to her mother and sisters until after all of said services had been rendered and performed. The said Caralisa Barry Pollard, Mrs. W.S. Barry, Sr., Josephine Barry, and Wingfield Barry have obtained the benefit of said valuable services and have acquiesced in, consented and agreed to, and dealt with W.S. Barry, Jr., as aforesaid, and each and all of them are now estopped by their contracts, consent, knowledge and acquiescence, silence and failure to object, lapse of time, course of dealings, and by the reliance of W.S. Barry, Jr., thereon. Complainants and cross-defendants have sued W.S. Barry, Jr., to recover said salary and bonus drawn by him for said services rendered during said five-year period, amounting to approximately $22,000, or an average salary and bonus of $4,500 per annum; and counsel for complainants and cross-defendants in their brief have conceived the erroneous idea that because W.S. Barry, Jr., had a one-fifth interest in the operations and profits of said plantations that he should spend five years of his life rendering such valuable services to said estate for nothing. In other words, they have conceived the erroneous idea that any charge he makes for such services, in view of the fact that he was one-fifth interested therein, is excessive, and they often refer in their brief to the fact that W.S. Barry, Jr., drew these enormous amounts, when, as a matter of fact, three among the largest and most respectable operators of large plantations, to-wit, Allan M. Hobbs, H.L. Gary, and Charles S. Whittington, have testified under oath that a reasonable compensation for said services is from $5,000 to $8,000 per annum. The testimony of these gentlemen has set at rest all of argument as to excessive compensation drawn by W.S. Barry, Jr., during said period of time as general manager of said plantations, and it is perfectly evident that the compensation drawn by W.S. Barry, Jr., for said services as the general manager of said plantation is reasonable and proper and not excessive.

In order that there shall be no misunderstanding as to our contention in this matter, we again assert that we are not contending for additional compensation for "services in attending to the general business interests of the estate and carrying out the provisions of the will." We concede that compensation for such services has been fixed by the will and that that proposition is foreclosed, and in order that our position may not be misunderstood we desire to call the Court's attention to the fact that this is not a regular administration of the administration of an estate without a will, because if it was an administration of an estate without a will, it would have been — the duties of the administrators to have promptly wound up and settled said estate, and the measure of compensation of such administration would have been fixed by statute; but we are operating under a will which has fixed the compensation of W.S. Barry, Jr., at $100 per month "for his services in attending to the general business interests of the estate and in carrying out the provisions of the will"; and we are operating under a will which provided that said estate should be kept intact for five years, whereby it was intended that this vast estate should be maintained and operated during said period of time and that in order to do so it was absolutely necessary to employ managers to operate said plantations; and that said last will and testament did not provide for the compensation for said managers to be so employed, but that was a matter left entirely up to the judgment and discretion of the co-executors and trustees, who had just as much power to do so as W.S. Barry, Sr., had during his lifetime. Among other things, we are relying upon a contract between W.S. Barry, Jr., and the other heirs at law of W.S. Barry, deceased, which said heirs had a perfect right to make, under the constitutional law of the land, without any limitation, except the unreasonableness thereof and then only where the creditors were involved.

The sole object of construing a will is to arrive at the intention of the maker; and this intention must be gathered from the whole instrument, construed in the light of circumstances surrounding the maker at the time of the execution thereof.

Chrisman v. Bryant, 108 Miss. 311, 66 So. 779; Henry v. Henderson, 103 Miss. 48, 60 So. 33; Strickland v. Delta Inv. Co., 163 Miss. 772, 137 So. 734; Darrow v. Moore, 163 Miss. 705, 142 So. 447; Countiss v. King, 149 Miss. 70, 115 So. 109.

The Court in construing a will should be placed as fully as possible in the situation of the testator, whose language is to be interpreted.

Strickland v. Delta Inv. Co., supra.

An agreement for additional compensation for services rendered outside his official duties is valid and enforceable.

34 C.J.S. 1032, Sec. 870.

The compensation of an executor or administrator may be fixed by an agreement between him and persons beneficially interested in the estate.

24 C.J. 991, Sec. 2425.

While it is true that ordinarily the commissions allowed by law are deemed to be full compensation for the performance of services as a trustee, this is not an inflexible rule. Where a trustee renders services outside of his duties as trustee, he is entitled to fair compensation for the services rendered to the estate.

Thomas v. Thomas, 97 Miss. 697, 53 So. 630; In re Berri, 224 N YS. 466, 130 Misc. 527; Corbet v. West, 102 Wn. 254, 173 P. 44; Lee v. Lee, 6 Gill J. (Md.) 316; Lent v. Howard, 89 N.Y. 169; Re McCord, 37 N.Y. Supp. 852, 2 App. Div. 324; Re Brausdorf, 35 N.Y. Supp. 298, 18 Misc. 666, 37 N.Y. Supp. 229, 2 App. Div. 73; Re Moriarity, 58 N.Y. Supp. 380, 27 Misc. 161; Re Popp, 107 N.Y. 277, 132 App. Div. 2; Howard v. Howard, 38 App. D.C. 575; Re Osborn, 36 Or. 8, 58 P. 521; Re Broome, 162 Cal. 258, 122 P. 470; Lane v. Traver, 153 Ga. 570, 113 S.E. 452; 60 A.L.R. 514 et seq.; 99 A.L.R. 964.

The court erred in permitting Caralisa Barry Pollard to recover for her part of the salary and bonus in question. Mrs. Caralisa Barry Pollard, nee Caralisa Barry, was one of the executors and trustees of the estate of W.S. Barry, Sr., deceased, and in our judgment and opinion is in quite a different situation from her mother and sisters and should not under any circumstances have been permitted to recover her part of the salary and bonus in question. The said Mrs. Caralisa Barry Pollard as one of the executors and trustees of said estate had the same responsibility as her brother, W.S. Barry, Jr., the other executor and trustee of said estate. She and her brother, W.S. Barry, Jr., were charged as such executors and trustees under said will with the duty of administration, and the record in this case shows that throughout said period of five years as provided for in said trust that she constantly checked and examined the books and records of W.S. Barry Company. She required monthly trial balances of the operation of said business and the proof shows that she received annual statements from Taylor, Powell Wilson of the operations of said business for the purpose of income tax payments. The accounts of W.S. Barry, Jr., on the books of W.S. Barry Company showed receipts of his salary month by month and year by year and annual receipts of his one-sixth of the net profits of the said business as bonus; and the uncontradicted proof shows that the said Caralisa Barry Pollard found out in 1933, the first year of said trust, that W.S. Barry, Jr., was drawing a salary as general manager of said business, and the testimony of the other witnesses shows that Caralisa Barry Pollard had examined the salary accounts of the various employees of W.S. Barry Company and had remarked in the presence of several employees that they were all getting more salary than they deserved. The said Caralisa Barry Pollard was devised the sum of $10,000 in the last said will and testament for the purpose of attending to the legal matters of said estate and carrying out the general business interests thereof; but notwithstanding the fact that she drew said sum, this record shows it was necessary to employ one Alfred Stoner as an attorney to attend to the legal affairs of said estate and the records show that they paid him approximately $5,000 for said services, and the said Caralisa Barry Pollard is not in a position to complain. The record shows that she and W.S. Barry, Jr., had a conversation about said salary in 1933 and that while she complained, she did not object and permitted the said W.S. Barry, Jr., to draw said salary throughout the period of five years; and in 1939 after the lands of said estate had been divided, she with the others brought her suit to recover said salary. This is wholly inequitable and she is estopped and not in a position to complain. She permitted the said W.S. Barry, Jr., to draw said salary for five years without objection, and then not more than a year after said estate had been divided, joins with the other appellees in a suit for the recovery of said salary and seeks to penalize W.S. Barry, Jr., with six percent interest thereon from the date said salary was drawn. Conditions have changed and she is estopped and cannot come into a court of equity with clean hands and ask for recovery of her part of said salary with interest thereon. The facts in this case, regardless of liability, certainly show that W.S. Barry, Jr., drew the salary and bonus in question in the utmost good faith, believing he was entitled to receive same.

Acquiescence consisting of mere silence may also operate as a true estoppel in equity to preclude a party from asserting legal title and rights of property, real or personal, or rights of contract. The requisites of such estoppel have been described. A fraudulent intention to deceive or mislead is not essential. All instances of this class, in equity, rest upon the principle: If one maintain silence when in conscience he ought to speak, equity will debar him from speaking when in conscience he ought to remain silent. A most important application includes all cases where an owner of property, A, stands by and knowingly permits another person, B, to deal with the property as though it were his, or as though he were rightfully dealing with it, without interposing any objection, as by expending money upon it, making improvements, erecting buildings, and the like. Of course, it is essential that B should be acting in ignorance of the real condition of the title, and in the supposition that he was rightful in his own dealing.

Bridge Creek Drainage District v. Webster, 168 Miss. 115, 150 So. 915; 2 Pomeroy's Equity Jurisprudence (4 Ed.), p. 1680, Sec. 818.

As to the 453 acre tract of land in controversy, counsel contended in the court below that W.S. Barry, Sr., owned an undivided, one-half interest in said land at the time of the death of his wife, Mrs. Berenice S. Barry; that W.S. Barry, Sr.'s interest in said land after her death became an undivided three-fourths interest; and that W.S. Barry, Jr.'s interest in said land became an undivided one-fourth interest. It is our contention that Mrs. Berenice S. Barry owned the entire 453 acre tract of land in question and that after her death said land descended to W.S. Barry, Sr., and W.S. Barry, Jr., share and share alike. The proof shows the chain of title to said land as follows:

(a). E.H. Wilson, the owner of said land, executed a mortgage in favor of Mrs. S.F. Barry, widow of W.S. Barry, deceased, of Lowndes County, dated August 22, 1879, and recorded in Book 8 at page 425 of the Record of Mortgages and Deeds of Trust on Lands of Leflore County, to secure an indebtedness of $5,500.

(b). Mary Wilson and James Turner Wilson, executors and heirs at law of E.H. Wilson, executed a special warranty deed in favor of W.S. Barry (the father of W.S. Barry, Jr.) for said land, dated February 19, 1881, and recorded in Book 9 at page 145 of the Record of Land Deeds of Leflore County.

(c). W.S. Barry, Sr., (father of W.S. Barry, Jr.) executed a general warranty deed to his wife, Mrs. Berenice S. Barry (mother of W.S. Barry, Jr.), for said land on September 22, 1882, as shown by deed recorded in Book 9 at page 505 of said records.

(d). On March 20, 1889, Mrs. S.F. Barry (mother of S.S. Barry, Sr.), obtained a decree in the chancery court of Leflore County against W.S. Barry, Sr., and Mrs. Berenice S. Barry (father and mother of W.S. Barry, Jr.), which required Mrs. Berenice S. Barry to convey to complainant, Mrs. S.F. Barry, in fee simple, an undivided one-half interest in said lands within thirty days from the date of the decree, but the record does not show whether or not said deed was ever executed.

(e). Mrs. S.F. Barry (the mother of W.S. Barry, Sr., and grandmother of W.S. Barry, Jr.) executed a special warranty deed to W.S. Barry, Sr., (the father of W.S. Barry, Jr.) dated June 1, 1889, and recorded in Book 14 at page 70 of said records.

Mrs. Berenice S. Barry, the wife of W.S. Barry, Sr., and the mother of W.S. Barry, Jr., died intestate in Leflore County, Mississippi, in 1900, and the record does not show that her estate was ever administered.

It is our contention that Mrs. Berenice S. Barry, the wife of W.S. Barry, Sr., deceased, and mother of W.S. Barry, Jr., died seized and possessed with a perfect fee simple title to said lands and that the after acquired title of W.S. Barry, Sr., from his mother, Mrs. S.F. Barry, did not change the results. W.S. Barry, Sr., had prior thereto executed a general warranty deed in favor of his wife, Mrs. Berenice S. Barry, and the after acquired title from his mother, Mrs. S.F. Barry, to said lands perfected his contract of general warranty in favor of his wife.

It is settled law that the execution and delivery of a warranty deed estops the grantor from thereafter acquiring any adverse title or interest in the land conveyed and that any subsequently acquired title inures to the benefit of the grantee. If the vendor at the time his deed is made owns only an undivided one-half interest, but his deed purports to convey the entire fee, a subsequently acquired title to the other half interest passes eo instanti to the vendee.

Garner v. Garner, 117 Miss. 694, 78 So. 623; Edwards v. Hillier, 70 Miss. 803, 13 So. 692; Southern Plantations Co. v. Kennedy Heading Co., 104 Miss. 131, 61 So. 166.

W.S. Barry, Sr., executed a general warranty deed in favor of his wife, Mrs. Berenice S. Barry, to all of said property in 1882, and it was his duty to protect said warranty. The after-acquired deed from his mother in favor of W.S. Barry, Sr., had the legal effect of perfecting the title to all of said property in Mrs. Berenice S. Barry; and it therefore follows from the foregoing decisions that Mrs. Berenice S. Barry, at the time of her death, was seized with a perfect fee simple title to all of the said 453 acre tract of land in controversy.

Mrs. Berenice S. Barry, the mother of W.S. Barry, Jr., died intestate in Leflore County, Mississippi, in 1900, and at the time of her death W.S. Barry, Jr., was only two or three months old. The proof in this case shows that W.S. Barry, Sr., (now deceased) at the time owned Rixwood and Shellmound Plantations, at Shellmound, Mississippi, and that said 453 acre tract of land was treated by W.S. Barry, Sr., during his lifetime as a part of Rixwood Plantation; that said lands were managed and operated by W.S. Barry, Sr., under the firm name of W.S. Barry Company, from 1900 up to the date of his death; and the proof shows that during all of said period of time there were no lines of demarcation indicating that said tract of land was a separate tract. The proof shows that W.S. Barry, Sr., during his lifetime, operated said 453 acre tract of land as if it was his own; that said lands were assessed to him as if his own; that the estate of Mrs. Berenice S. Barry was never administered; and that nothing was ever said or done to W.S. Barry, Jr., to indicate in any manner that he was interested in said tract of land. The record shows that W.S. Barry, Sr., during his lifetime, was a very wealthy man; that he was a very successful business man and a man of education and influence; that he sent his son, W.S. Barry, Jr., to the public schools in due course and to college; that W.S. Barry, Jr., was a veteran of World War No. 1 and that he had never worked and looked after any business affairs of his own up to the time that said alleged deed was executed by him in favor of his father, on February 13, 1919.

W.S. Barry, Jr., testified, and the proof is uncontradicted, that the first time he knew anything about his ownership of an undivided, one-half interest in said land was in the late summer or fall of 1939, when he was advised of that fact by Mr. R.P. Parish, Sr., which was about a year after the partition and division of the estate of W.S. Barry, deceased; and he testified that he did not collect any rent on Wilson Deadening, that the taxes on said land were paid by W.S. Barry Company, that said land was worked as a part of Rixwood Plantation, and that he did not have any recollection of ever having executed said deed to his father in 1919. W.S. Barry, Jr., admits that his signature to said deed is genuine but says that he does not remember anything about the execution of it or the contents of said deed.

R.P. Parish, Sr., testified that he had known W.S. Barry, Sr., all of his life and that he was associated with him in business for about thirty years, "as secretary, partner and a little of everything." The said R.P. Parish, Sr., further testified that W.S. Barry, Sr., told him during his lifetime that he held certain property for W.S. Barry, Jr., and that he owed him money; and that he checked up all of the records for W.S,. Barry, Sr., discovered that W.S. Barry, Jr., owned an undivided, one-half interest in the land in controversy, asked Mr. Barry about it, and that W.S. Barry, Sr., told him that he did not want William to know anything about it, "because he is young, liable to go off and mortgage it or sell it" and that he did not want anyone else to mix in with the family. The said R.P. Parish, Sr., testified that W.S. Barry, Jr., in 1919 announced that he was going to South America; that W.S. Barry, Sr., talked to Mr. Parish about said matter and requested him to get a deed from William for said land without letting him know what it was all about, so that in case William got married or killed, he didn't want his other heirs to be worried by any lawsuits from outsiders; witness R.P. Parish, Sr., further testified that he prepared the deed and told W.S. Barry, Jr., that he had some papers for him to sign and for him to sign and ask no questions, that they were taking care of his interests, that "Mr. Barry owes you some money"; and he also testified that he gave William about $8,000. Witness Parish testified that W.S. Barry, Jr., did not read the deed but said that he knew his father would take care of him, and the said R.P. Parish, Sr., said that the amount of the consideration of said deed was figured on the basis of rent owed William on the land over a period of twenty-one years. He testified that said deed was never acknowledged, and the proof shows that said deed was recorded February 26, 1941, more than twenty-two years after the execution thereof. The said R.P. Parish, Sr., further testified that if William came back from South America his father did not intend to record said deed, but that said deed was to be destroyed. It is evident from the proof in this case that neither the complainants nor defendant knew anything about this outstanding deed, because at the time of the death of W.S. Barry, Sr., said deed had never been recorded; and the proof in this case shows that W.S. Barry, Sr., did not intend to ever record said deed, and that accounts for the fact that said deed lay in his safe from 1919 up to the date of his death. Said deed was never found until after this lawsuit was instituted, and upon finding same the complainants herein had same filed and recorded.

It is true that W.S. Barry, Sr., did not intend to perpetrate a fraud upon his son, W.S. Barry, Jr., by having him execute said deed, under the circumstances; but, notwithstanding his good intentions to protect his son, so as to keep him from mortgaging or selling said property, the proof in this case shows beyond a reasonable doubt and without any contradictions whatsoever that he carefully and deliberately concealed from W.S. Barry, Jr., the fact that he owned an undivided one-half interest in said 453 acre tract of land in controversy. The said W.S. Barry, Sr., was not only a wealthy man, but an influential man, and he held said property in trust for W.S. Barry, Jr., without his knowledge or consent. The said W.S. Barry, Sr., enjoyed the confidence, respect and esteem of his son, W.S. Barry, Jr., and W.S. Barry, Jr., would have signed anything he asked him to, without question. W.S. Barry, Sr., owed W.S. Barry, Jr., rent on his part of said lands for approximately twenty-two years, and W.S. Barry, Sr., estimated that amount at $11,000. At the time W.S. Barry, Jr., executed said deed, it was represented to him that his father owed him money. W.S. Barry, Sr., was not only the father of W.S. Barry, Jr., and occupied a high position of influence with him, but he was the natural guardian and trustee of W.S. Barry, Jr., and as such owed him the highest duty. It was his duty to take out letters of guardianship for W.S. Barry, Jr., and to account to him annually for his part of the rent on said land; but he neglected and failed to do so, and as a result thereof he was the natural guardian and trustee of the estate of his son, W.S. Barry, Jr., and occupied fiduciary relationship with W.S. Barry, Jr., as such. Under the circumstances, he could not purchase the lands of his son without acquainting him with all the facts of the case. The act and conduct of W.S. Barry, Sr., was in the utmost good faith, as far as ultimate results were concerned, because he intended to protect W.S. Barry, Jr.; but the act and conduct of W.S. Barry, Sr., insofar as law is concerned, is fraud upon the rights of his son, W.S. Barry, Jr., and said deed should be set aside.

At the time said deed from W.S. Barry, Jr., to W.S. Barry, Sr., was executed, there was not a meeting of the minds of the parties thereto.

Brooks v. Brooks, 145 Miss. 845, 111 So. 376.

At the time of the execution of said deed, W.S. Barry, Sr., occupied a fiduciary relationship toward W.S. Barry, Jr., and the execution of said deed is presumed to be fraudulent.

Ham et al. v. Ham et al., 146 Miss. 161, 110 So. 583.

The act and conduct of W.S. Barry, Sr., deceased, while in utmost good faith, constitutes a legal fraud upon the rights of W.S. Barry, Jr.

Bourn v. Bourn, 163 Miss. 71, 140 So. 518.

The testimony of W.S. Barry, Jr., and R.P. Parish, Sr., was admissible, since it did not vary, alter, or contradict a valid written instrument, but showed that there was no valid contract at all, by reason of the fraud alleged to have been perpetrated.

Bourn v. Bourn, supra; State Highway Commission v. Powell et ux., 184 Miss. 266, 185 So. 589; Hirschburg Optical Co. v. Jackson, 63 Miss. 21; Nash Mississippi Valley Motor Co. v. Childress, 156 Miss. 157, 125 So. 708; Henry et al. v. W.T. Rawleigh Co., 152 Miss. 320, 120 So. 188; Lizana v. Edward Motor Sales Co., 163 Miss. 266, 141 So. 295; Ferguson v. Koch, 204 Cal. 342, 268 P. 342, 58 A.L.R. 1176, and note; 21 R.C.L. 932.

It is our contention that W.S. Barry, Jr., was at all times after his mother's death the owner of an undivided one-half interest in said lands in controversy, and that said undivided one-half interest constitutes no part of the estate of W.S. Barry, deceased, and that the controversy in truth and in fact is a controversy between Mrs. Josephine H. Barry, the wife of W.S. Barry, deceased, Mrs. Josephine H. Barry Brown, Mrs. Wingfield Barry Potwin, and Mrs. Caralisa Barry Pollard on the one side, and W.S. Barry, Jr., on the other, and that the estate of W.S. Barry, deceased, is not involved. It is true that the pleadings in the case sought relief against the estate as for an accounting; but appellant realized that he did not have a right to testify against the estate for an accounting in all matters that happened during the lifetime of his father, W.S. Barry, deceased, and no testimony was entered by W.S. Barry, Jr., against the estate of W.S. Barry, deceased, in the trial for an accounting; and that feature of the answer and cross-bill was abandoned. Insofar as the 453 acre tract of land in controversy is concerned, it is our contention that the deed dated February 13, 1919, was obtained by a legal fraud, and the testimony of R.P. Parish, Sr., which is wholly uncontradicted, fully sustains the contention that said deed was obtained by a fraud. For the reasons mentioned in the record, the testimony of W.S. Barry, Jr., as to the facts and circumstances at the time said deed was executed and of his ignorance of the execution thereof, was fully admissible as against Mrs. Josephine H. Barry, the wife of W.S. Barry, deceased, Mrs. Josephine H. Barry Brown, Mrs. Wingfield Barry Potwin, and Mrs. Caralisa Barry Pollard, notwithstanding the fact that the estate of W.S. Barry, deceased, may be affected thereby, because the estate of W.S. Barry, deceased, as to said parties was not involved. The recovery of said land in controversy is not sought against the estate of W.S. Barry, deceased, but against four of the devisees under the last will and testament of W.S. Barry, deceased. There is no conflict in the evidence that W.S. Barry, Sr., obtained said deed by legal fraud and that W.S. Barry, Sr., owned only an undivided one-half interest in said land at the time of his death and that the other one-half interest was owned by W.S. Barry, Jr., if the testimony of R.P. Parish, Sr., and W.S. Barry, Jr., is true, and said testimony is uncontradicted, except by the subsequent act and conduct of W.S. Barry, Jr., in handling said property while in utter ignorance of the facts of the case, and it cannot be said that prior thereto he elected or is estopped while in utter ignorance of his rights; and if appellant succeeds in establishing his claim to said undivided one-half interest in said land in controversy, he will not be establishing his claim against the estate of his father. The estate of W.S. Barry, deceased, as to the said undivided one-half interest in said land in controversy is not involved. If appellant succeeds in establishing his claim to said undivided one-half interest in said land, the estate of his father will not be diminished one particle. If appellees lose said land, they cannot call upon the estate of W.S. Barry, deceased, to make the loss good, because they paid nothing for it; it was a gift to them under the last will and testament of W.S. Barry, deceased.

Garner v. Townes, 134 Miss. 791, 100 So. 20; Love v. Stone, 56 Miss. 449; Faler v. Jordan, 44 Miss. 283; Combs v. Black, 62 Miss. 831; Cole v. Gardner, 67 Miss. 670, 7 So. 500; Fennell v. McGowan, 58 Miss. 261; Gordon v. McEachin, 57 Miss. 834; Jones v. Bank of Carrollton, 71 Miss. 1023, 16 So. 344; Jackson v. Smith, 68 Miss. 53, 8 So. 258; Wood v. Stafford, 50 Miss. 370.

In general, whenever the legal title to property, real or personal, has been obtained through actual fraud, misrepresentations, concealments, or through undue influence, duress, taking advantage of one's weakness or necessities, or through any other similar means or under any other similar circumstances which render it unconscientious for the holder of the legal title to retain and enjoy the beneficial interest, equity impresses a constructive trust on the property thus acquired in favor of the one who is truly and equitably entitled to the same, although he may never perhaps have had any legal estate therein; and a court of equity has jurisdiction to reach the property either in the hands of the original wrongdoer, or in the hands of any subsequent holder, until a purchaser of it in good faith and without notice acquires a higher right, and takes the property relieved from the trust. The forms and varieties of these trusts, which are termed ex maleficio or ex delicto, are practically without limit. The principle is applied wherever it is necessary for the obtaining of complete justice, although the law may also give the remedy of damages against the wrong-doer. While these instances are so many and various, there are certain special forms of frequent occurrence and great importance which require particular mention.

Owen v. Monroe County Alliance, 77 Miss. 500, 27 So. 383; Lampkin v. McCreight, 117 Miss. 658, 78 So. 578; Moore et al. v. Crump et al., 84 Miss. 612, 37 So. 109; Ragsdale v. Ragsdale, 68 Miss. 92, 8 So. 315, 11 L.R.A. 316, 24 Am. St. Rep. 256; Yandell v. Wilson, 182 Miss. 867, 183 So. 382.

The court erred in holding that W.S. Barry, Jr., has elected under the terms of the last will and testament of W.S. Barry, Sr., deceased.

Herrick et al. v. Hiller et al., 69 Wn. 456, 125 P. 974; In re Gilmore, 81 Cal. 240, 22 P. 655; Gulf, C. S.F.R. Co. v. Brandenburg et ux. (Tex.), 167 S.W. 170; 1 Pomeroy's Equity Jurisprudence (4 Ed.), p. 879, Sec. 462, pp. 893-894, Sec. 470, pp. 894-897, Sec. 472, p. 905, Sec. 477; 69 C.J. 1090.

For the purpose of forcing an election, extrinsic evidence is not admissible to establish the intention of the testator to dispose of property over which he has no testamentary power of disposal. This is apparently the rule, even though the language of the will is ambiguous, whatever may be the rule as to the admissibility of evidence to explain its ambiguity in other respects. The strength of the presumption against an intention of a testator to dispose of property which is not his own is so strong that the law will not permit any such intention to be shown by oral evidence; but such intention must appear from the language of the will alone.

Herrick v. Miller, supra; McDonald v. Shaw, 92 Ark. 15, 121 S.W. 935, 28 L.R.A. (N.S.) 657.

The doctrine of election does not apply to one in ignorance of his rights.

Davis v. Kriger, 69 Miss. 39, 11 So. 458.

There can be no estoppel in ignorance of one's rights.

Yazoo Lumber Co. v. Clark et al., 95 Miss. 244, 48 So. 516; 31 C.J.S. 264, Sec. 70, p. 266, subsec. b.

This court does not have jurisdiction of the cross-appeal. Counsel for appellee filed his cross-appeal and assignment of errors on the 7th day of February, 1945. The judgment in this case was rendered on July 27, 1944, and more than six months has elapsed since the filing of said cross-appeal and assignment of errors, and the court is without jurisdiction of said cross-appeal.

Code of 1942, Sec. 753.

The proof in this case shows beyond a reasonable doubt that W.S. Barry, Jr., exercised ordinary care, skill, diligence, and prudence in investigating and employing J.C. Price as bookkeeper for W.S. Barry Company. The said executor and trustee is not an insurer nor a guarantor and is not liable as such. Executors and administrators, in the administration of the estate, are not required to use the highest degree of skill, but only ordinary care and diligence. They are not required to exercise any higher skill and prudence than that which is imposed upon any other agent or trustee; they are not insurers or guarantors. The measure of their care in the management and closing of the estate is that which an ordinarily prudent man would exercise under like circumstances in the management of his own affairs.

New York Indemnity Co. v. Myers, 161 Miss. 784, 138 So. 334; 11 R.C.L. 133, Sec. 140.

Pollard Hamner and Nelson E. Taylor, all of Greenwood, for appellees.

The allowance for excess salaries and bonuses charged against W.S. Barry, Jr., in the chancellor's decree is correct and should be affirmed. Unfortunately this is one of those cases of family differences and is one where the oldest child of the testator, the only son of the family, and looked up to as such, has undertaken to read into the will of his deceased father a provision for himself which in the opinion of the step-mother and his three half-sisters was never intended; and to construe the will in such fashion as to take down from the assets of the estate for himself as compensation for his services as executor and trustee additional funds to those expressly provided in the will. During the five years of the administration of the estate and the term of the trust being administered by him and one of his sisters as executors and trustees, he never at any time made any report of his farming operations of the large property constituting the bulk of the estate, either to the court or to his co-devisees, his step-mother and sisters. The discovery of such payments to himself was not made until the partition by convention between him and his co-devisees and after deeds had been executed thereunder. In the handling of these farming operations, he assumed the lead, advising his co-executor and co-trustee that she knew nothing about it all and left her and her mother and sisters to find out for themselves just what was happening.

The will of W.S. Barry, deceased, fixed the compensation for W.S. Barry, Jr., as co-executor at $6,000 to be full compensation for his services as executor and trustee. The general rule, supported by nearly all the authorities, is that, when an executor accepts an appointment under a will which fixes the compensation which the executor is to receive, the executor must abide by the compensation provided in the will and is entitled to no other compensation than the will allows.

Vicksburg Public Library v. First National Bank Trust Co., 168 Miss. 88, 150 So. 755; Thomas v. Thomas, 97 Miss. 697-717, 53 So. 630.

We feel that the intent of the testator can be arrived at by considering the circumstances and surroundings at the time the will was written. There was the testator, there was his son, who is the appellant herein, his son's wife, Mrs. Marguerite H. Barry, and Hon. Alfred Stoner, the lawyer who drew the will. Neither Mrs. Barry, the wife, and now the widow, nor Caralisa, nor Josephine, nor Wingfield, her daughters, were present. Those present came evidently to discuss the proposed will for the lawyer was there to draw the will. Among other questions which came up for discussion was the very question of Bill's compensation, and we get an insight on the matter which is most enlightening and it comes from appellant's wife, Mrs. Marguerite H. Barry, who admitted her presence in the room when the will was drawn, and in response to her own counsel's question as to Caralisa's compensation told the whole story, as follows: "Q. Was there anything said about $10,000 to Miss Caralisa? A. That provision was discussed and made; $10,000 was bequeathed to Caralisa Barry for her legal services in carrying out the provisions of the will, and after that clause was completed and thoroughly discussed, Mr. Barry suggested to Alfred Stoner, or told him, he wished to include something in the will for Bill in his work for helping Caralisa carry out the terms of the will; Mr. Barry asked Bill what he thought would be a fair compensation, and Bill said, `Well, dad, I don't want a thing; it will be my pleasure to do what I can to help Caralisa in carrying out the terms of the will; I don't want a thing.' Then dad's conversation with Honorable Stoner, he said, `I think we might as well put Bill in for something. What do you think of $100 per month?' Dad asked Bill if he considered $100 per month sufficient, and Bill said, `That is up to you, I don't want a thing.' So he turned to Alfred Stoner and said, `Put him down for $100 per month for carrying out the terms of the will, for helping Caralisa.'"

Can we say what was in Mr. Barry's mind? It is unfair to say that he thought back through the years and recalled that he had given appellant a nice home when he married; that he had given him an insurance business with an income of $6,500 per year; that he had put him in charge of his large planting interests on a salary and let him have one-sixth of the profits for seven years past; that he had allowed him to run along pretty much as he wanted to without any accounting. Necessarily, the father was conscious of the fact that appellant had been farming his properties. It would be idle to say that appellant was not aware of that. Yet with full knowledge of these facts in the minds of them both, is it reasonable to say that Mr. Barry ever remotely dreamed that his son would demand for his compensation more than he then expressed his willingness to receive?

There was something else that happened on that same day. The father took from his estate a 1,000 acre plantation, known as Doodledust Plantation, and deeded it to Bill. The only testimony in the case shows that this property was worth at least $17,500 under the extremely depressed conditions of 1933. On that same day the father took from his estate another farm of 200 acres and deeded it to appellant and his wife, Mrs. Marguerite H. Barry. This property was worth in excess of $7,000. A four-fifths interest in these properties would have come to the widow and her daughters, except for these deeds. Can it be doubted that all of the foregoing facts ran through the testator's mind when he fixed his son's compensation as executor? The testator was a smart man. He had practiced law in his early days; he was shrewd, alert, a good business man; but he was just, and when he fixed a $6,000 compensation for his son and gave him and his wife the valuable properties mentioned, we must conclude that the compensation fixed was considered by him ample, proper and sufficient, and that he never contemplated that the son would further reduce the share of the testator's estate to which his widow and her daughters would be justly entitled.

Yet in the face of all this, it is shown by Bill's ledger sheet with W.S. Barry Company, hereinbefore referred to, that in the month of May, immediately after his father's death, he began taking credit for $150 per month salary on the plantation books, and this in addition to the $100 provided in the will, and that later he boosted his salary on the plantation books to $250 per month. Add to this that at the end of December, 1933, a little more than six months after his father's death, he tacked on a bonus of one-sixth of the proceeds of the plantation and continued this bonus credit to himself until the aggregate of the salaries so credited totaled $11,233.33, and the aggregate of the bonuses with which he credited himself aggregated $11,109.59, and all of this in addition to the compensation provided in the will; surely the father never anticipated that the son would so deal with his widow and her daughters. Does anyone dare say that the testator would ever have provided in his will for any such exorbitant charges in connection with the administration of his estate? Surely the chancellor was altogether correct in disallowing these excessive charges and holding the appellant to the compensation provided in the will. First, because the will fixed the compensation; second, because Bill had consented to the compensation provided for in the will; third, because good faith on his part to his father on his last bed of illness demanded that he speak out if he expected to make these additional charges; and fourth, because good faith to his step-mother and her daughters, his own sisters, demanded that in the execution of a sacred trust, he give them the details of it all before they were forced to go into a court of equity to protect their rights.

Appellant cannot be heard to testify in any event because his testimony would tend to establish his claim against the estate of the decedent.

Code of 1930, Sec. 1529, Code of 1942, Sec. 1690.

The executors, acting either singly or together, could not vary the compensation by their own consent nor could the same be varied by court order. The co-devisees might have agreed among themselves for additional compensation, but the evidence fails completely to establish such agreement.

No question of reasonableness or unreasonableness of compensation can be considered because the will was final, or the devisees must all have consented to other compensation. The proof wholly fails on this.

As an offset against the extra salary and bonuses paid by W.S. Barry, Jr., to himself from the funds of the estate, W.S. Barry, Jr., sets up a claim to an undivided one-half interest in 453 acres of land originally inherited by him and his father jointly from his mother, now deceased. There is a deed admittedly signed by W.S. Barry, Jr., and acknowledged on February 13, 1919, purported to convey for a valuable consideration appellant's interest in this tract of land to his father. This deed of February 13, 1919, from W.S. Barry, Jr., to this father passed a title to the son's interest in the 453 acre tract of land known as Wilson Deadening.

Cresswell v. Cresswell, 164 Miss. 871, 140 So. 521.

Under the law of Mississippi a fiduciary relationship is not even implied in the case of father and son. It is only when the proof shows actual fraud by clear and unmistakable evidence that the case is sufficient to avoid an instrument. If no fiduciary relationship is presumable in the present case and the facts do not establish such relationship, then there is none either presumed or proven, and W.S. Barry, Jr., stands before this Court just as any other man would who had signed and solemnly acknowledged a deed. A man can do pretty much as he pleases in this country with his property. He can dispose of it as he sees fit.

Burnett v. Smith, 93 Miss. 566, 572, 47 So. 117, 118.

It is clear beyond question that there was no fiduciary relationship implied by law, and equally as clear that no such relationship between W.S. Barry and his son has been proved by the facts in this case. Therefore, the deed must stand unless it can be established that there was fraud. The sole support for this theory is the witness R.P. Parish, Sr., and we address ourselves to his testimony on two theories: one, that it was altogether inadmissible, and the other, that if admissible, it was unbelievable. Section 3348 of the Code of 1930, Section 269 of the Code of 1942, requires that declarations of trust or confidence shall be made in writing. The whole purport of the witness Parish's testimony is to establish a verbal agreement of some kind or character which is indefinable, to say the least of it, other than that the deed of February 13, 1919, was to be destroyed and held of no effect in the event that W.S. Barry, Jr., should return safely from his trip to South America.

There was no writing created any trust whatever in connection with the land involved in the deed. Undoubtedly the deed was delivered to W.S. Barry, Sr. Under the above statute, even if W.S. Barry, Sr., had verbally agreed to reconvey the property, such agreement would be void; but we deny even such verbal agreement.

Horne v. Higgins, 76 Miss. 813, 25 So. 489; Moore v. Crump, 84 Miss. 612, 37 So. 109; Ragsdale v. Ragsdale, 68 Miss. 92, 98, 8 So. 315.

Under the statute of frauds a parol promise to reconvey land is void, whether made before or after the conveyance to the promisor.

Clearman v. Cotton, 66 Miss. 467, 6 So. 156; Miazza v. Yerger, 53 Miss. 135; Campbell v. Bright, 87 Miss. 443, 40 So. 3; Palmer v. Spencer, 161 Miss. 561, 137 So. 491.

Parol testimony cannot be offered either to invalidate the deed in question, or to set up a trust relationship, or to establish a verbal agreement to reconvey, which agreement would be worthless and unenforceable even if established.

Even though the testimony of these witnesses be admitted, W.S. Barry, Jr.'s, testimony shows no fraud or attempted fraud on the part of his father, and the testimony of R.P. Parish, Sr., is so full of inconsistencies and misrepresentations that his credibility is weakened, and in no event can it be said to have sufficient probative force to overturn the solemn act of executing a deed.

W.S. Barry, Jr., is bound by election by all of his acts in serving as executor and trustee, and in the event that his such acts did not constitute an election because of his alleged ignorance of the situation, then he is forever estopped by his election in treating the land as his own by deeding it to his wife in 1942 after he was fully advised and by his sworn pleadings that so stated.

Barrier v. Kelly, 82 Miss. 233, 33 So. 974, 82 L.R.A. 421; West v. West, 131 Miss. 880, 95 So. 739; 28 L.R.A. 662.

We have filed a cross-appeal in this case on the three items of cash tickets against W.S. Barry, Jr., what is known as the Price note which W.S. Barry, Jr., took as executor from J.C. Price, and a rent claim of $3,000 against W.S. Barry personally for use of what is known as the Howard Street property. The court was in error in refusing to charge these items against W.S. Barry, Jr.

Alexander, J., delivered the opinion of the court.

W.S. Barry died May 11, 1933, leaving a will in which his son, W.S. Barry, Jr., and his daughter, Mrs. Caralisa Barry (Pollard) were named joint executors and trustees. The litigation now before us originated in a petition filed by Mrs. Pollard with her final account, in which she alleged that her co-executor had without authority diverted certain sums from the estate and prayed citation and decree for repayment. These sums included $11,183.33 as alleged salary, $11,109.59 as alleged bonus, $924.31 as a cash discrepancy and $3,000 as rental of property of the estate. The original petition by amendment making all the heirs parties attained the status of a bill in chancery, and by the cumulative processes of pleading resulting in defenses and counterclaims through amended bills and cross-bills, the following issues emerged. Complainants' ultimate demand included the items referred to, plus an increase of the salary demand to $11,233.33, and an additional item of $4,261.02 represented by the overdraft of one Price, bookkeeper employed by W.S. Barry, Jr. The latter in his answers, although not denying the correctness of the amounts withdrawn as salary and bonus, contested any liability for their refund. He denies receipt of any of the amounts represented by certain cash tickets, some of which bore his name, and any liability for rent of the property of the estate used by him in his own business and that of the estate during its management. By way of justification for the withdrawals as salary and bonus, he pleads an agreement thereunto with the other heirs.

In his cross-bills, as amended, the defendant prayed for confirmation of his title to the Wilson Deadening, a 453-acre tract in the heart of the plantation lands of the estate. Further demand was made to cancel a partition of the estate lands by convention of all the heirs since it was made in ignorance of defendant's part ownership of the Wilson tract, and its inclusion in his allotment resulted in an inequitable award. Complainants' answer thereto is that the said tract had been conveyed by defendant to W.S. Barry, Sr., prior to the latter's death, and this contention is in return rebutted by defendant's assertion that the latter deed was procured without consideration and by fraud, and its cancellation is prayed, together with mesne rentals. Elaboration of the several issues will be undertaken as each is discussed.

Appellant's Liability for Refund of Amounts Withdrawn as Salary and Bonus. For some time prior to the death of the testator, W.S. Barry, Jr., had been engaged in the insurance business in the City of Greenwood. In 1924, he was induced by his father to assist in a clerical capacity at the plantation near Shellmound in the same county. To this request the son acceded, though not without misgivings or inconvenience and some expense by way of supplemental help in the continued conduct of his own business. Two years later, he was by his father employed as general manager of the plantation at a salary of $150 per month, together with a bonus of one-sixth of the profits of the operation. Such arrangement continued to the time of the death of the testator. The lands involved approximately 6,000 acres, of which about 4,260 were in cultivation.

In examining appellant's contention that he was authorized, by continuing to manage the plantation, to credit himself with sums commensurate with his contract with his father, we must disclose pertinent parts of the will. After having constituted W.S. Barry, Jr., and Caralisa Barry as trustees for certain legatees, and having made certain devises, Item 3 bequeathed to Caralisa Barry (Pollard) the sum of ten thousand dollars "as compensation to her for her services in attending to the legal work of my estate and in carrying out the provisions of this will . . ." Item 4 is as follows: "It is my will and I do hereby give, devise and bequeath unto my said son, W.S. Barry, Jr., the sum of Six Thousand Dollars to be paid to him at the rate of One Hundred Dollars per month for five years from the time of my death to compensate him for his services in attending to the general business interests of my estate and in carrying out the provisions of this will."

Item 5 is as follows: ". . . it is my will that the said W S Barry, Jr., and Caralisa Barry, when acting as trustees and when acting as executors, shall for the benefit of my estate and the benefit of the trusts herein created, have full and complete power, jointly to sell, incumber, assign, hypothecate, mortgage, manage, invest, reinvest, or transfer any part of my estate and to extend the time of payment of my indebtedness due my estate and to handle generally my business interests for the period of five years from the date of my death."

It was also provided that the estate be kept intact for five years after testator's death unless the joint judgment of the trustees directed otherwise. Appellant and Caralisa Barry (Pollard) were named joint executors without bond.

The testator died May 11, 1933. Thereupon, appellant undertook the management of the estate including the plantation. He credited himself with salary at the rate of $150 per month through July, 1936, and thereafter at $250. He also withheld as bonus payments from profits the sum above mentioned.

Appellant interposes as a defense to the demand for refund of these amounts an alleged agreement with the other heirs (of whom he was of course one) that he should "stay on the place and manage it on the same basis." This was corroborated by appellant's wife. At the time of the alleged oral agreement, one of the heirs was a minor. The other heirs denied any such agreement or any knowledge that W.S. Barry, Jr., was crediting his account with the monthly salary and bonus. We need not here add more than that the existence of this agreement was a factual issue. We are not justified in reversing the chancellor's finding that the agreement was not established.

It is, however, insisted by appellant that, having performed the services for which he paid himself, he is at least entitled to a reasonable compensation. Evidence was adduced to show that the amounts retained were commensurate with the responsibility involved. From this point, which could hardly be contested, we must turn our attention to the issue of legal liability of the estate to a trustee who assumes to manage its business affairs. We find no warrant to widen this issue by injecting any principles of waiver or estoppel. And since our first inquiry is whether the trustee may recover in any event, we need not consider the matters of personal inconvenience and business efforts involved, nor their value.

Counsel have diligently debated the contention whether the services rendered by W.S. Barry as executor-trustee were provided for and required by the provisions of Item 4 of the will. Appellees contend that it contemplates full compensation, not only for "his services in attending to the general business of the estate," but also for "carrying out the provisions of this will," one of which was "to . . . manage . . . any part of my estate." Appellant insists that the "general business interests of the estate" does not include the special business of managing its farms. The members of the court are not in agreement on this point, nor need it be decided, for the following reason:

The provisions of Item 4 contemplated either that (1) the sum of $100 per month was in full for all services in managing all the estate properties; or, (2) no compensation therefor was provided. The chancery court has power to authorize the executor to continue the business of the testator. Without such authority, the estate is not liable upon any basis of quantum meruit. Crescent Furniture, etc., Company v. Morgan, 178 Miss. 824, 173 So. 290. It is of interest that the attorney who drew the will was plaintiff in Owen v. Stoner, 148 Miss. 397, 114 So. 613, which denied to the attorney payment for services rendered as executor since he could not bind the estate by any contract between himself as executor and himself as attorney. It was this attorney who in drawing the present will discussed with appellant and the testator the proper compensation for helping the co-executor to "carry out the terms of the will" and who suggested in the face of appellant's disavowal of any purpose to accept pay, the sum mentioned in the will and the services which it contemplated.

We find no creditable dissent from the rule that the acceptance by an executor or trustee of an appointment under a will whether under a stated compensation or where none is provided (save where a statute fixes it) is conclusive of any right to an increased compensation. It was stated in Vicksburg Public Library v. First Nat. Bank, 168 Miss. 88, 150 So. 755, 756: "The general rule, supported by nearly all the authorities, is that, when an executor accepts appointment under a will which fixes the compensation which the executor is to receive, the executor must abide by the compensation provided in the will, and is entitled to no other compensation than the will allows. This seems to have been assumed as the correct rule without discussion in Thomas v. Thomas, 97 Miss. 697, 717, 53 So. 630, and we now expressly so hold."

This is in line with the view expressed in 1 Rest. Trusts, Sec. 242, "if by the terms of the trust it is provided that the trustee shall receive a certain amount as compensation for his services as trustee he is ordinarily entitled to that amount, and unless it is otherwise provided he is ordinarily entitled only to that amount."

A leading case is In re Balbach's Estate, 56 S.W. 196, 227 N.W. 886, 66 A.L.R. 508, where it is held that it is no test of a trustee's right to compensation for an assumed responsibility, that he could have employed another to perform services for which payment to such other be proper. If it is not within the trustee's province nor duty to perform the services he should employ some one to render them, or if he himself is to be employed such undertaking must be upon agreement of the court or the other heirs or beneficiaries. Snow v. Callum, 1 Desaus. (S.C.), 542; Sprowl's Succession, 21 La. Ann. 544; Bartolet's Appeal, 1 Walk. (Pa.), 77; In re Popp, 123 App. Div. 2, 107 N YS. 277; In re Froelich, 122 App. Div. 440, 107 N.Y.S. 173; In re Peck, 79 App. Div. 296, 80 N.Y.S. 76; In re Larrabee, 98 N.J. Eq. 655, 130 A. 195; In re Oliver's Estate, 129 A. 434, 3 N.J. Misc. R. 453; Gilligan v. Daly, 79 N.J. Eq. 36, 80 A. 994; United States Rubber Company v. Peterman, 119 Ill. App. 610; Peterman v. United States Rubber Co., 221 Ill. 581, 77 N.E. 1108; In re Runyon's Estate, 125 Cal. 195, 57 P. 783; Albert v. Sanford, 201 Mo. 117, 99 S.W. 1068; In re Woods, 55 Misc. 181, 106 N.Y.S. 471; In re Thompson's Estate, 183 Mich. 618, 150 N.W. 318; Washington Loan Tr. Co. v. Convention, etc., 54 App. D.C. 14, 293 F. 833, 34 A.L.R. 913.

In the case last cited, the familiar rule was followed that an executor or trustee can not accept his appointment and reject the condition as to compensation upon which it is made. It further holds that mere acquiescence by the beneficiaries in his services even where they have notice of his view as to the invalidity of the allowance creates no estoppel. In re Runyon's Estate, supra, discloses a factual situation much like that here presented. One of the executors who had prior to the death of the testator managed his farms at $100 a month, continued so to act after his death. It was held that regardless of the benefit to the farms he was entitled to no extra compensation, there being no renunciation of the stated stipend.

To the same effect is Collier v. Munn, 41 N.Y. 143, which in addition lays stress upon the principle that "even in respect to such services as executors are not personally bound to render, but for which they may properly employ and pay others, they cannot claim compensation themselves." Compare also Nicholson v. Dent, Robinson and Ward, 189 Miss. 658, 198 So. 552; Byrd v. King, 120 Miss. 435, 82 So. 312. The status of appellant as a member of the family, a trustee and one of the beneficiaries, lends additional propriety to the invocation of the rule. The decree of the trial court for a refund of the salary and bonus withdrawn is affirmed.

Appellant's Liability for Refund of Other Items. The sum of $924.31 demanded by the appellees was represented by certain cash tickets found in the cash drawer and safe of W.S. Barry Company which was the firm under which the farms had been operated. Although some of these tickets bore appellant's name, the auditor and bookkeeper's testimony that all cash tickets had been charged to appellant created an issue of fact, and we shall not disturb the chancellor's finding in appellant's favor.

The refund of the sum of $4,261.02 was sought upon the ground that the appellant's bookkeeper, Price, had been allowed to overdraw his account in that amount. Later, a note was executed by Price to represent and acknowledge the indebtedness. Well founded doubt as to the collectibility of the note is disclosed. We are unwilling to alter the conclusion of the chancellor that appellant, having used due care in the selection of this employee, whose ability and integrity were highly commended, is not legally responsible for such shortage. Likewise, the issue of rent upon the Howard Street property used by appellant for his own business and by himself and other members of his family in attending to the affairs of the estate was resolved upon conflicting testimony. It was here that the testator had during his life conducted his own business. We forbear further details, none of which are inconsistent with the trial court's finding of non-liability. The three foregoing items are the subject of appellees' cross-appeal.

The Wilson Deadening Lands. This is a tract of 453 acres situated near the heart of the Leflore County lands. It was included in the award to appellant by convention of the heirs in a partition agreement. Appellant asserts his discovery, since the partition, that he owned an undivided interest therein as one of the heirs of his mother. We need not exhibit the chain of title by which this tract devolved by deed from appellant's father to his mother and by mesne conveyances back to the father, since consideration of the issues thereby raised is foreclosed by the following conclusion.

On February 13, 1919, appellant duly signed and acknowledged a deed to this tract to his father. It was filed for record February 26, 1941. If this instrument is valid, as it unquestionably is upon its face, this controversy is at an end. It is attacked by appellant as having been fraudulently procured; that such fraud would be presumed in view of a fiduciary relationship; that it was without consideration; and that it was not intended to be a permanent divestiture of title. He further disclaims any recollection of its execution but admits his signature thereto. The appellees attack these contentions upon the following grounds: (1) Appellant is incompetent to testify in regard thereto since his evidence constitutes an attempt to establish a claim against his father's estate arising during the lifetime of the testator, Code 1942, Sec. 1690; (2) that the testimony of R.P. Parish, Sr., a former partner of the testator, seeking to vary the effect of the deed by oral testimony was in violation of the statute of frauds, Code 1942, Sec. 269, and is otherwise incompetent; and (3) there was no fiduciary relationship between the father and the son. A discussion of all these contentions would unduly prolong our opinion, and at most reveal points of only academic interest since we are of the opinion that the deed was executed upon valuable consideration, and its validity is not assailed by any competent proof. The finding of the chancellor denying the prayer of appellant's cross-bill to cancel this deed and for mesne rents is affirmed. Discussion of the principles of election and estoppel are therefore foregone.

The record discloses some discrepancy in the amounts due by way of salary and bonus refund. Computations of interest appear inaccurate. There are other minor readjustments of the account which because of the disagreement between counsel would best be computed upon remand by a master or by concord of counsel.

Affirmed on both direct and cross-appeals and remanded.

CONCURRING OPINION.

Smith, C.J., delivered a concurring opinion.

I concur in holding that the appellant was not entitled to the compensation here charged by him for managing the plantation that was a part of this trust property for the reason that he did not obtain the consent of the Chancery Court to make the charge before rendering the service for which he seeks this compensation. It matters not whether the service rendered by the appellant was beyond what was required of him as trustee, or if within his duties as trustee the compensation provided therefor by the trust instrument was inadequate. Where a trust instrument fixes the compensation of the trustee and he rendered personally a service to the trust estate beyond what his duties as trustee require and for which he had the right to employ another, he can not receive additional compensation therefor, unless he is authorized by the Chancery Court so to do before he performs the service.

And if a trustee considers the compensation fixed for him by the trustee instrument to be inadequate, he has one of two options, (1) to decline to accept the trust, or (2) before entering upon the discharge of his duties as trustee to obtain permission of the Chancery Court to charge more therefor than is fixed by the trust instrument.

PARTIALLY DISSENTING OPINION.

Griffith, J., delivered a partially dissenting opinion.

As to all features of this case except that which adjudges that appellant shall repay his compensation earned by him as the manager on the ground of the 6,000-acre plantation all of us are in agreement, and if the will fixed and was intended to fix $100 per month to appellant as covering that service as well as his general duties to this large estate, consisting of large properties other than the particular plantation, we would still be in agreement throughout. But it is plain to me from this record that the testator did not so intend, could not justly so have intended, and that every one of these heirs knew, and all along have known, the true intention. They knew, and beyond all doubt the heir who was co-executor knew, that appellant was continuing in the personal management of the plantation, away from his other business, devoting his time and energies almost exclusively to this immense farm, with all the exertions and anxieties which such an operation imposes upon the manager on the ground, with the understanding on his part that he was doing so under the same arrangement for compensation as to that particular service which he had had with his father, and so knowing they stood by and permitted him to put in five hard years, without a word of warning or dissent to the contrary, and now say that they are not estopped by all the principles of equity and honesty which are applicable to all members of a social community, even including heirs.

It would require many pages to disclose the details of all the facts, from which when the will is construed in the light of all the surrounding circumstances and therefrom the intention is ascertained, and all the facts that transpired subsequent to the probate of the will, which go to show the invalidity of the demand of these heirs against this appellant, and the inapplicability of the authorities relied on by the majority opinion. I must content myself, therefore, by registering my dissent from what I consider, although with deference, an unjust decision, in so far as this matter of compensation is concerned.

McGehee, J., joins herein.