Opinion
No. 32334.
December 14, 1936.
EXECUTORS AND ADMINISTRATORS.
Executors who made advances out of private funds to care for testator's widow, for whose use testator had directed executors to hold residue of personalty, held entitled, upon removal, to reimbursement out of estate for all advances, including those incurred more than three years before removal, since no cause of action therefor arose until removal, and hence no items were barred.
APPEAL from the chancery court of Simpson county. HON. H.M. McINTOSH, Special Chancellor.
J.P. A.K. Edwards, of Mendenhall, for appellants.
The judgment of the court is contrary to the overwhelming weight of the evidence. The evidence introduced in behalf of the appellee does not negative the allegations of appellants' bill and does not deny that the appellants did not support their mother, but only evidences the fact that contributions were made from time to time by members of the family. The evidence considered as a whole on both sides conclusively shows that the burden of the trust fell on the shoulders of the appellants in the support and maintenance of their mother under the terms of the express trust, the will.
The court erred in excluding all the items of the account prior to three years from the date of the filing of the bill of complaint under the erroneous idea that the three year statute of limitations is applicable in this case. This case is governed by section 2316 of the Code of 1930 and the ten-year statute of limitations is the law governing accounts created by express trusts and the statute begins to run as of the date the appellants, the executors in the will, cease to perform the trust, and the evidence in this case shows that the appellants were relieved of their office of executor on the 18th day of January, 1935, at which time the law as to the barring of any items of this account began to run against the claimants, the appellants.
Abbay v. Hill, Fontaine Co., 1 So. 484; Templeton v. Tompkins, 45 Miss. 424; Peoples v. Ackner, 12 So. 248; Hook v. Bank of Leland, 98 So. 594.
We earnestly submit that the appellants have not had an opportunity to submit their claim against the estate of Wyatt Shorter for expense incurred by them under the provisions of the will in evidence in this case as is in such cases provided by law by reason of the erroneous conception of the law by the learned chancellor and that appellants have been denied the right to present their case and fully two-thirds of their account to the court for adjudication according to the law of the case and that unless this case is reversed for a new trial the appellants will be denied their legal rights to have their claim proven according to the law of the land.
James B. Sykes, of Mendenhall, for appellee.
With reference to the first four assignments of error which will be treated as one, it must be conceded that the abstract statement of the law is correct, and the cases cited by appellants merely substantiate the legal position taken by them, but it is the contention of appellee that this matter as set forth in the decisions cited in appellants' brief have no weight in determining the proposition herein involved. In order for those cases to have application, it would have been necessary for the appellants, by their petition and by the proof, to show that they were beneficiaries under item three of the will. No proof was offered by the appellants to show that they were beneficiaries under said item three of the will, and when they failed to do this, the court then had the right to say that the three-year rather than the ten-year statute was to govern. Before any charge could have been made against the estate under item three of the will, it would have been necessary for appellants to show that the three executors had acted in concert to make any charge against the estate, and when appellants, by their proof, failed to show that any account was made or that the account in question was made by the consent of all three trustees, then the court had a right to assume that they were not claiming as beneficiaries under said item and that the three-year rather than the ten-year statute applied.
Bartlett v. Southerland, 24 Miss. 395.
Wyatt Shorter died testate in the year 1926, leaving surviving him his widow and several adult children. Item 3 of his will was as follows:
"Third. That after all my just debts are paid and if my beloved wife, Susan Dorothy Shorter, survive me, then such money, mixed and personal property of whatsoever kind and nature may remain unexpended and part of my estate, shall be held intact by my sons, Jessie, George and Lonnie D. Shorter, for the use of my wife so long as she may live, that the said Jessie, George and Lonnie D. Shorter, my sons, may in their discretion and best judgment, without having to account to any one, sell, trade, use or dispose of any of such mixed or personal property as mentioned in this item for the purpose of supporting, maintaining or making comfortable my beloved wife, as named above. That in the event either of my sons, Jessie, George or Lonnie D. Shorter, or any two of them should die before I do, then the remaining one or more of them surviving me, shall carry out the provisions of this item without being required to give bond for the faithful performance thereof or required to make any report to any court of any of their actions with reference to this item of my will."
By item 4 of the will, the real estate belonging to the decedent was devised to his sons, Jessie, George, and L.D. Shorter, with a charge thereon that the income therefrom should be used, if necessary, to supplement the fund created out of the personal property for the support and comfortable maintenance of his widow. The said Jessie, George, and L.D. Shorter were appointed joint executors of the will, without bond, and without necessity of making reports to the court, and with power to sell and dispose of the personal property of the estate for the purpose of carrying out the provisions of the will.
The aforesaid will was established as the last will and testament of the deceased, and the three executors took charge of the estate and handled it for several years. Finally, a controversy arose among them as to the ownership of the personal property, principally cattle, and, in a suit in chancery to which all the heirs of the deceased were parties, it was decreed that the said property belonged to the estate of Wyatt Shorter, deceased. Afterwards one of the executors resigned, and by a proceeding in chancery sought the removal of the others; and a decree was rendered removing the two remaining executors, appellants herein, and appointing Bee King, administrator with the will annexed. Thereafter, by order of the court, a part of the personal property was sold, and the sale was ratified and confirmed by the court.
After L.D. and George Shorter had been removed as executors, and the use and control of the personal estate had been vested in the administrator, they filed a petition in said administration proceedings propounding a claim against said estate for reimbursement for sums alleged to have been expended by them out of their private funds in the support and maintenance of their mother, the widow of Wyatt Shorter, deceased.
The administrator filed an answer to this petition, denying that the widow had been supported by the petitioners out of their private funds, and averring that all expenditures made in her behalf by them, except gifts, had been out of the income and profits derived from the estate devised to them under the terms of the will, and from the proceeds of sales of personal property belonging to the said estate. The answer further invoked the doctrine of laches as a defense to the claim, which covered a period of nearly ten years, and was not propounded until after it was adjudicated that the personal property which had been in the possession of the petitioners belonged to the estate of Wyatt Shorter, deceased. The answer also set up the bar of the three-year statute of limitations against all items of the account incurred more than three years prior to the filing of the petition and claim.
Upon the hearing of this petition, the court excluded all evidence tending to establish items of the account alleged to have been incurred more than three years before the filing of the petition and account, and, upon the evidence offering to establish the remaining items of the account, recovery was denied; and, from the decree entered dismissing the petition, this appeal was prosecuted.
Appellants' principal assignments of error are based upon the action of the court in holding that all items of the account which were incurred more than three years prior to the filing of the claim were barred by statute.
We are of the opinion that item 3 of the will of Wyatt Shorter, deceased, created an express trust for the support and maintenance of his widow out of the personal property belonging to the estate; and, so long as the executors were in possession of the trust property and were acting in performance of the trust, they were entitled to use the trust property for that purpose, or for the purpose of reimbursing advances made by them for trust purposes out of their private funds. The right to sell, trade, use, and dispose of the personal property of the estate was intrusted entirely to the discretion and better judgment of the executors, and, until they were removed and divested of the right of possession of the property, no cause of action accrued in their favor for reimbursement of advances made by them in performance of the trust. Consequently, none of the items of the purported claim were barred, and the court erred in excluding the evidence in support of the items of the claim which were incurred more than three years before the petition and account were filed.
We express no opinion upon any other points raised by appellants; but, for the error indicated above, the decree of the court below will be reversed and the cause remanded.
Reversed and remanded.