Opinion
No. 31679.
April 8, 1935.
1. APPEAL AND ERROR.
Right of appeal from final decree is absolute, and no court order is necessary for that purpose (Code 1930, section 13).
2. APPEAL AND ERROR.
Appeals by assignee of payee of note from decree directing that collateral security given for payment of note be returned to makers, on one of which assignee gave cost bond alone and on the other of which he gave supersedeas bond, were consolidated and collateral security was ordered returned to assignee subject to control of chancery court by future decree, whether decree appealed from was final or was interlocutory (Code 1930, sections 13, 14).
ON THE MERITS. (Division B. May 6, 1935. Suggestion of Error Overruled June 3, 1935.) [161 So. 153. No. 31679.]1. TRUSTS.
Where trust agreement, whereby beneficiaries under will of deceased officer of insolvent bank agreed to pay bank's claims against dceased's estate, provided that regardless of anything stipulated in agreement, promissory notes, or trust deed, so long as aggregate average annual payment on notes should amount to a minimum of twenty-five thousand dollars, then no default should be declared, agreement held to mean that there should be no default so long as twenty-five thousand dollars per year was paid, notwithstanding some notes were due under their terms, as against contention that minimum payment was to be applied in discharge of principal indebtedness and was not to include accrued interest payments.
2. TRUSTS.
Trust agreement must be construed by taking all of its terms and situations of parties under which it was made into consideration.
APPEAL from the chancery court of Leflore county.
HON. R.E. JACKSON, Chancellor.
Suit by G.A. Wilson and others against L.K. Thompson, trustee, and another. From the decree, L.K. Thompson, trustee, and another appealed, giving a cost bond alone, and also appealed therefrom giving a supersedeas bond. On motion to consolidate the appeals. Motion sustained. Affirmed on merits.
Green, Green Jackson, of Jackson, Herbert Gannaway, of Memphis, Tenn., and Shands, Elmore, Hallam Causey, of Cleveland, for appellants.
The decree of December 27th was interlocutory, not final.
Butler v. Furr, 152 So. 278, 168 Miss. 884; Levy v. Russell, 33 So. 651, 82 Miss. 68; Sowell v. Sowell, 101 Miss. 623, 57 So. 626; Sweatman v. Dean, 86 Miss. 641, 38 So. 231; Beeks v. Rye, 27 So. 636, 77 Miss. 358; Sections 13 and 14, Code of 1930; Griffith's Chancery Practice, page 683; Comans v. Tapley, 101 Miss. 219, 57 So. 567.
If appellant had appealed without obtaining an order as from a final decree and had misjudged, then upon motion this appeal would have been dismissed if this court conceived the decree to be interlocutory. On the contrary, if it appealed as from a final decree and this court determined that the decree was interlocutory, it would have been forthwith dismissed. So that confronted by the complexities and having the vital interests of its client in mind, the path of security required that the two bonds be given and two appeals be had, so that with safety the rights might be preserved and that now asked is merely that the supersedeas be made operative in both aspects due to the enormous cost of a bond of this kind. Thereto we can see no sufficient reason why it should not be done.
Pending the appeal, with the executors in possession of the stock released from the lien with the right of disposition specifically vouchsafed, appellants' rights are imperiled.
Sections 13 and 14, Code of 1930; Griffith's Chancery Practice, sec. 690, page 812; Belzoni Land Co. v. Robertson, 87 So. 671, 125 Miss. 338; 3 Bouvier's Law Dictionary; 3 C.J. 1315.
Notwithstanding the supersedeas herein granted, there has been created this preferred stock to the extent of two hundred fifty thousand dollars, thereby to that extent depreciating the value of the common stock and the aliquot portion of this preferred stock has not been delivered to the trustee expressly appointed by the instrument for its custody. The result will be that if appellant is successful, that no profit will to it come from having a decree rendered in this court in its favor for the subject-matter of the litigation may thus have been disposed of pending the appeal.
The chancellor improperly released to the executors six hundred fifteen shares of Greenwood Stock.
58 C.J. 1161; Section 3442, Code of 1930; 15 U.S.C.A., sec. 18, Clayton Act; Allendale Heights v. Eyrich, 125 So. 706; Calumet Co. v. Oil City Corp., 154 So. 141; Union Planters' Bank Tr. Co. v. Corley, 133 So. 238, 161 Miss. 282; Alabama Water Co. v. Anniston, 151 So. 461; Swalm v. Gill, 118 So. 446, 151 Miss. 630; Hester v. Hooker, 7 S. M. 768; Fowler v. Nunnery, 89 So. 156, 126 Miss. 510; Chambers v. Davis, 91 So. 346, 128 Miss. 613, 22 A.L.R. 114; Ellman v. Herndon, 71 Miss. 823, 15 So. 135; Beaver v. Crump, 76 Miss. 34, 23 So. 432; Atkinson v. Whitney, 7 So. 646, 67 Miss. 655; Daniel v. Frazer, 40 Miss. 507; Yazoo, etc., R.R. Co. v. Payne, 93 Miss. 50, 46 So. 405; Johnson v. Jackson, 27 Miss. 498; Wilburn v. Bishop, 62 Miss. 341; Marqueze v. Caldwell, 48 Miss. 23; Sims v. Lumber Co., 96 Miss. 449, 51 So. 459; Lewis v. Woods, 4 How. 86, 34 Am. Dec. 110; McCorkle v. Brannon, 9 S. M. 167.
A bill by a vendor for specific performance will not be maintained unless there has been an offer to perform on the part of complainant.
McAlister v. Moye, 30 Miss. 258; Eckford v. Halbert, 30 Miss. 273; Klyce v. Boyles, 37 Miss. 524; Moon v. Wilkerson, 47 Miss. 633; Byrd v. McLaurin, 4 S. M. 50; Stewart v. Railroad Co., 7 S. M. 568.
The bond herein filed for two hundred one thousand dollars complies with the statute.
Property is under judicial custody and no bond requisite for supersedeas appeal, save insofar as damages and costs were concerned.
Aetna Ins. Co. v. Robinson, 90 So. 120, 127 Miss. 440; White v. Williams, 132 So. 573, 159 Miss. 732, 76 A.L.R. 755; White v. Miller, 133 So. 146, 160 Miss. 734; Gully v. Jackson International Co., 145 So. 905, 165 Miss. 103.
Under the statute the fixation of the amount of the bond, even if as at double the value, is proper.
Dayton Power Light Co. v. Commission, 292 U.S. 290, 78 L.Ed. 1267; Humphreys County v. Cashin, 90 So. 888, 892, 120 Miss. 236; Brown v. Franklin, 145 So. 792, 166 Miss. 899; Johnson v. Howard, 141 So. 573, 167 Miss. 475.
Admitting initially, for argument's sake, right to release at all, the chancellor erred thereasto: (a) because he disregarded accrued interest; (b) because he completely ignored potential interest accruals; (c) utilization of inventory valuation of 1930 not competent basis for exercise of right; (d) requirement of proportional release ignored.
Bank v. Noel, 92 Mich. 348, 52 N.W. 727; 1 Jones on Mortgages (3 Ed.), 92.
There was no real disagreement between the parties as to the release, but only an unauthorized cancellation of individual responsibility sought to be exacted by the appellee.
Dayton Power Light Co. v. Commission, 292 U.S. 290, 78 L.Ed. 1267.
The chancellor denied fundamental rights in directing the residue after sale to be paid to the heirs, instead of being applied upon the debts.
1 Jones on Mortgages (7 Ed.), sec. 79; Marine Nat. Exch. Bank v. Kalt-Zimmers Mfg. Co., 79 L.Ed. 210; Chrisman v. Hay, 43 Fed. 555; 2 Jones on Mortgages (7 Ed.), sec. 981; Reed v. Jones, 133 Mass. 116, 121; Muren v. Southern Coal Mining Co., 160 S.W. 835, 836; Noble v. European Lfg. Inv. Corp., 165 A. 157, 159; Fleming v. Fairmount R.R., 49 L.R.A. (N.S.) 155, 79 S.E. 826; Tanner v. Hicks, 4 S. M. 294; Lindsey v. Bates, 42 Miss. 395; Cabbert v. Wallace, 66 Miss. 618, 5 So. 394.
Assuming parties entitled to release, the release granted is not in accordance therewith, with the power.
The debt is not well secured.
1 B.T.A. 882; Robinson v. McShane, 140 So. 726, 166 Miss. 623; 14 C.J. 850; Fletcher on Corporations, sec. 5382.
Appellees being in default as to principal and interest, not entitled to insist upon a specific performance of the covenant as to release.
58 C.J. 1161; Allendale Heights v. Eyrich, 125 So. 706; Calumet Co. v. Oil City Corp., 154 So. 141; Union Planters' Bank Tr. Co. v. Corley, 133 So. 238, 161 Miss. 282; Alabama Water Co. v. Anniston, 151 So. 461; Swalm v. Gill, 118 So. 446, 151 Miss. 630.
This contract is not susceptible of specific performance.
Hester v. Hooker, 7 S. M. 768; Fowler v. Nunnery, 89 So. 156, 126 Miss. 510; Chambers v. Davis, 91 So. 346, 128 Miss. 613, 22 A.L.R. 114; Atkinson v. Whitney, 7 So. 646, 67 Miss. 655; Daniel v. Frazer, 40 Miss. 507; Yazoo, etc., R. Co. v. Payne, 93 Miss. 50, 46 So. 405; Johnson v. Jackson, 27 Miss. 498; Wilburn v. Bishop, 62 Miss. 341; Marqueze v. Caldwell, 48 Miss. 23; Sims v. Lumber Co., 96 Miss. 449, 51 So. 459; Lewis v. Woods, 4 How. 86, 34 Am. Dec. 110; McCorkle v. Brannon, 9 S. M. 167; McAlister v. Moye, 30 Miss. 258; Eckford v. Halbert, 30 Miss. 273; Klyce v. Boyles, 37 Miss. 524; Moon v. Wilkerson, 47 Miss. 633; Byrd v. McLaurin, 4 S. M. 50; Stewart v. Railroad Co., 7 S. M. 568.
The chancellor erred in refusing appellants' request for a construction of the so-called private agreement and refusing to decide whether appellants should be bound thereby and to what extent.
The court erred in not specifically directing that any amounts paid by the executors upon the twelve thousand dollars judgment rendered in favor of Mrs. Yandell should be applied upon her past due indebtedness due appellants.
Alfred Stoner, of Greenwood, for appellee.
We submit that the chancellor did not reserve the right to alter or modify the decree at some future time, but the decree itself was final and ordered execution. The decree was not to proceed to final decision after entering the decree, but the decree was final within itself.
Torrence v. Kerr, 27 Miss. 786; Gilleylen v. Martin, 19 So. 482, 73 Miss. 700; Griffith's Chancery Practice, secs. 610, 611.
In the case at bar the court did all that it was to do, it released the stock and ordered execution.
McDonald v. McDonald, 68 Miss. 689, 9 So. 896; Carter v. Kimbrough, 122 Miss. 543, 84 So. 251; Ledyland v. Henderson, 46 Miss. 260; Cromwell v. Kraft, 47 Miss. 44.
Section 14 of the Code of 1930 does not authorize any chancellor or judge to fix the bond at less than double the value of the property in controversy.
We submit that insofar as the penalty of the bond is concerned, even though the decree be considered as interlocutory, the bond must be double.
Section 29, Code of 1930.
A supersedeas suspends the efficacy of a judgment, but does not, like a reversal, annul the judgment itself.
60 C.J. 1161.
Insofar as the motion is concerned, this court cannot know whether the rights of innocent third parties intervened or not after the stock was delivered on execution. Really, the motion and brief indicate that the rights of innocent third parties have intervened and just how counsel conclude that this court would be authorized to undo rights acquired by innocent third parties prior to the filing of a supersedeas, we are unable to understand. Even if no such rights have intervened, the rules of law are against undoing that which was done after execution was issued. The petition in this cause and the proof show that the release of stock for the protection of the estate was sorely needed.
It appears to be well settled that to make a supersedeas effective, the writ must be served upon the officer whose action is sought to be restrained by the supersedeas.
Memphis Grocery Co. v. Anderson, 24 So. 387; McCandless v. State, 167 Miss. 539, 142 So. 490.
The decree provided that the security should be released as payments were made. All parties, including the chancellor, bound themselves to the proposition that the release could be obtained as the indebtedness diminished.
In the administration of the estates of deceased persons, the legal representative acts in the capacity of an officer of the court of probates. The acts of the executor or administrator, in a certain sense, are the acts of the court. Whenever sanctioned, they are, unquestionably, so far as the rights of all parties are concerned, to be regarded as its acts.
Effinger v. Richards, Admr., 35 Miss. 540.
It is the duty of a court, in construing a contract, to place itself in the situation of the parties at the time the contract was made, and to ascertain their intention from the contract, in the light of that situation, looking, also, to the subject-matter of the contract.
Waddell v. DeJet, 76 Miss. 104, 23 So. 437; 3 R.C.L., Bills Notes, page 865, sec. 48; Section 1383, Code of 1930.
The notes are not in default.
The chancellor did not direct a sale. He had no right to direct a sale. The original decree provided only for a release as the principal was reduced.
The debt is just as well secured as ever.
The ascertainment of values is for the court of original jurisdiction and not for the appeal court.
Robinson v. McShane, 140 So. 726, 166 Miss. 623.
Argued orally by Garner W. Green, for appellant, and by Alfred Stoner, for appellee.
ON MOTION TO CONSOLIDATE APPEALS.
The affairs of the G.A. Wilson Banking Company were being liquidated through the state banking department in the chancery court of Sunflower county. G.A. Wilson, organizer of the bank, was dead. His children, who were his sole heirs, owned the larger part of the stock of the bank. The superintendent of banks recovered a decree against them under the double liability statute in the sum of two hundred twenty-five thousand dollars. By authority of the chancery court in which the receivership was pending, the Wilson heirs gave their notes for the amount of the decree secured by a trust agreement. Among other things this agreement provided for the transfer of one thousand five hundred seventeen and one-half shares of Greenwood Compress Storage Company stock by the executors of Wilson's will and his heirs as collateral security for the payment of the notes. This transfer was made. Wilson's estate was being administered in the chancery court of Leflore county by the executors of his will. Fifty thousand dollars was paid on the notes. The superintendent of banks sold and transferred these notes to appellants.
Soon thereafter Wilson's executors and heirs brought appellants into court by a petition setting up, in substance, that since the indebtedness had been reduced fifty thousand dollars it was oversecured, and asked the return of part of the collateral held for its security. There was a hearing, resulting in a decree directing appellants to return to Wilson's executors and heirs six hundred fifteen shares of the Greenwood Compress Storage Company stock. This decree was entered on December 27, 1934. Appellants, conceiving that the decree was interlocutory and not final, prayed for an appeal therefrom in open court, which was denied by the chancellor upon the ground that it was a final decree. On January 3, 1935, appellants appealed from the decree giving a cost bond alone. Appellants, however, being still of the opinion that the decree was not final but interlocutory, on the 8th day of January, 1935, applied to and obtained from one of the judges of the Supreme Court an appeal therefrom with supersedeas bond in the sum of two hundred one thousand dollars, which bond was executed and approved on January 12, 1935. Before the time of the rendition of the decree and the approval of the supersedeas bond the appellants were forced to turn over the six hundred fifteen shares of stock to Wilson's executors and heirs. After this was done the Greenwood Compress Storage Company, which was owned and controlled by the Wilsons, issued preferred stock.
The cause is for hearing now in this court on motion of appellants that the two appeals be consolidated and heard on the merits as one appeal, and that the appeal bond with supersedeas apply to both appeals, and that pending the appeal an order be made that the six hundred fifteen shares of stock, along with the preferred stock which belongs to it, be returned to appellants to be held until the final determination of the cause. The right of appeal from a final decree is absolute; no order of the court is necessary for that purpose. Section 13, Code 1930. Section 14 of the Code provides, among other things, that the chancellor in term time or in vacation may, in his sound discretion, grant an appeal from an interlocutory order or decree requiring the possession of property to be changed, the appeal to be applied for and bond given within thirty days, and the chancellor shall determine whether the appeal shall operate as a supersedeas, but if appeal is refused by the chancellor it may, nevertheless, be allowed by a judge of the Supreme Court.
So far as liability on the supersedeas bond is concerned, we think it wholly immaterial whether the decree appealed from is a final or an interlocutory decree. The two appeal bonds, one without and one with supersedeas, are appeals from the same decree. The supersedeas bond operated to supersede the decree without any regard for whether it was final or interlocutory. Therefore, the appellants' motion in which the surety on the supersedeas bond joins is sustained, and the two appeals are consolidated, and the six hundred fifteen shares of stock with the preferred stock that goes with it is ordered returned by appellees to appellants, subject to the control of the chancery court by future decree.
Motion to consolidate sustained.
On December 19, 1930, the Wilson Banking Company of Greenwood, Mississippi, a banking corporation, was taken charge of by the state banking department for liquidation of its affairs. The stock of the Wilson Banking Company was all owned by G.A. Wilson, Sr., and his family up to his death in November, 1930. The bank was originally organized in 1913 with a capital stock of twenty-five thousand dollars. There was various shifting of the stock in and among the members of the family from time to time, but, at all times, the bank was operated and controlled by, and its board of directors composed of, members of the family of G.A. Wilson, Sr.
About December 31, 1928, the capital stock of the bank was increased from twenty-five thousand dollars to one hundred thousand dollars, and members of the family of G.A Wilson, Sr., who owned all of the original stock, distributed the new stock to the various members of the family. In other words, no new capital was paid into the bank, but the increased capital stock was from the surplus of the bank.
When the bank was closed in December, 1930, for liquidation, the superintendent of banks placed G.A. Wilson, Jr., in charge as liquidating agent; he gave bond in the sum of twenty thousand dollars for the faithful performance of his duties, and acted as such for about one year, when another was placed in his stead. This second liquidating agent held the place until 1932, and then a third party was placed in charge of the liquidation of said bank. This last liquidating agent, under the direction of the state banking department, had an audit and full investigation made of the bank's affairs, and as a result thereof a bill was prepared and filed against the four children of G.A. Wilson, Sr., in their personal capacity, and against John H. McBee, G.A. Wilson, Jr., and B.G. Humphreys, executors of the estate of G.A. Wilson, Sr. It was alleged in this bill that G.A. Wilson, Sr., dominated and controlled said bank, being a man of great mental capacity and of a dominating disposition; that at various times the said G.A. Wilson, Sr., used the bank and its funds for his personal use in carrying out various deals; that a large part of the time he carried a large deposit in the bank, and that this deposit was used by him to take from the bank certain loans and collateral that he desired, and, at other times, he would take notes in his personal transactions with fictitious names, or from persons who were insolvent and not entitled to credit, and sold these notes to the bank when, in truth, they represented his personal transactions. It was also alleged that certain of the loans exceeded the amount the bank was authorized to lend to one person, and that, by these means, the said G.A. Wilson, Sr., secured large advances from the bank. It was alleged that in some instances he would take out of said bank loans which it had made, and carry such loans himself, paying therefor from said deposit account, and would obtain promissory notes of divers parties, and at his pleasure, discretion, or whim, sell same to the bank and receive the proceeds of such sales from said bank.
G.A. Wilson, Sr., left a large estate, and, by will, the bulk of it went to his widow and four children, with certain bequests to three of his grandchildren.
The bill filed by the banking department sought to subject the estate of G.A. Wilson, Sr., to the demands of the Wilson Banking Company, and also sought personal judgments against the surviving children of said G.A. Wilson, Sr., the beneficiaries under his will. After suit was filed, by negotiations, a settlement was reached, and notes were given by the various children secured by land and personal property consisting of corporate stock in certain corporations, and especially stock in the Greenwood Compress Company, practically all of which was owned by the widow and children of G.A. Wilson, Sr.
It was recited in the decree that G.A. Wilson, Jr., is indebted to J.S. Love, in his representative capacity, in the sum of seventy-eight thousand nine hundred fifteen dollars and eighty cents; that May Wilson McBee is indebted to J.S. Love, in his representative capacity, in the sum of fifty-one thousand three hundred twenty-six dollars and ninety-two cents; that Floyd Wilson Humphreys is indebted to J.S. Love, in his representative capacity, in the sum of forty-seven thousand two hundred ninety dollars and forty-three cents; that Nellie Wilson Yandell is indebted to J.S. Love, in his representative capacity, in the sum of forty-seven thousand four hundred sixty-six dollars and eighty-six cents, and judgment was rendered against each one of the above-named parties for the amount found to be due by each of them. The decree also recited that the court found that G.A. Wilson, Sr., and the said G.A. Wilson, Jr., John H. McBee, and B.G. Humphreys, and the other defendants, were, at no time, guilty of any act of fraud with reference to Wilson Banking Company. It was further found and decreed that, in view of the execution by the defendants of the instruments made a part of the decree as Exhibits A and B thereto, no lien attached because of any judgment rendered in this cause, all liens having been replaced by the attaching of Exhibits A and B. These exhibits were a deed of trust and a trust instrument. It was recited in the decree that the liability of the defendants adjudged above, and upon which the judgments were rendered, is fixed with reference to said bank and its depositors, and the said defendants, nor any of them, shall be, in any way, liable for any further amounts. It was then further adjudged, all parties consenting, that, in case the defendants should desire to sell any of the property pledged in any instrument of writing, and are unable to agree with said superintendent of banks as to the terms upon which any such property shall be released from either Exhibit A, or Exhibit B, such question shall be referred to the court upon proper petition, and by the court decided with the view of preserving the security of the banking department, and for the best interest of all parties concerned. Provided, however, that the defendants may at any time sell any number of shares of the Greenwood Compress Storage Company at such price as the banking department, or their successors in office, and the defendants may agree upon, or in case of a failure to agree, then at such price as fixed by the chancellor of this district, but in the event of such sale at least one-third of the sales price must be paid in cash, and the remainder to be evidenced by deed of trust on the property sold, and such balance of purchase money shall be payable within three years after sale; at least one-third of such deferred indebtedness shall be paid annually; the wording of such contract of security shall be agreed upon by the superintendent of banks, or his successor, and if there is a failure to agree, then the same shall be referred to the chancellor of the Seventh district of Mississippi; and all such cash payments and security shall be delivered to the superintendent of banks, or his successor, and applied as credits equally and pro rata on the note or notes falling due nearest the date of such sale. It was provided that this decree should be entered in cause No. 5981 on the general docket as a decree in the estate cause of said G.A. Wilson, Sr., being cause No. 5739, and in the liquidation cause of said bank, being cause No. 5750, "and this court shall retain jurisdiction over all of said causes until all obligations of this decree and the exhibits hereto attached are fully completed and consummated." It was further stipulated in the decree that all the parties agreed to such receipt of dividends and income to be disbursed in accordance with the decree, but that all parties also agreed that there should be no abuse thereof, and that the court would always be open in vacation or term time, to petitioners seeking to correct any such abuses.
The collateral trust agreement set out the indebtedness of the several children of G.A. Wilson, Sr., giving the amount of the debt and the note by which it was secured. In paragraph 10 thereof it was provided that: "It is expressly agreed and understood that regardless of anything stipulated in this collateral trust agreement, the promissory notes referred to herein, the decree or the deed of trust hereto attached, so long as the aggregate average annual payments on said notes shall amount to a minimum of twenty-five thousand dollars (meaning, at least, six thousand two hundred fifty dollars shall be paid by each of the makers of said notes), then no default shall be declared except that all indebtedness secured by or referred to in this instrument, and in the said decree and the said deed of trust, or either, shall be paid not later than September 17, 1938, provided that all items referred to in Item 5, par. 2, of the deed of trust executed herewith shall be paid promptly as due. It is further agreed and understood that the said superintendent of banks, or his successor, will, from time to time, as the indebtedness herein referred to is reduced, release from the operation of this agreement and from the operation of the decree and Exhibit `B' hereto, portions of the security herein and therein mentioned proportionate to its relation to the indebtedness remaining due, and if the superintendent of banks, or his successor, and the other parties are unable to agree as to the property to be released, then the matter may be submitted to the chancellor of this district, but it is understood that the indebtedness shall, at all times, be adequately secured." It was further provided that the "superintendent of banks, or his successor or assistant, shall have the right to attend all meetings of directors of the said Greenwood Compress Storage Company, and shall be notified of all meetings of directors as if he were a director therein."
Subsequent to the rendering of the decree and the execution of the trust agreement, the Federal Compress Warehouse Company, and L.K. Thompson, trustee, were approached by certain creditors of the Wilson Banking Company about advancing money, and buying its assets, for the purpose of procuring cash which would be helpful in the community in and around Greenwood, Mississippi, and would relieve, to some extent, the financial difficulty brought about by the closing of the banks there, and the general financial depression. Thereupon, the Federal Compress Warehouse Company began negotiations, and purchased the notes and collateral involved, and thus became the owner of the said debts and vested with the rights of the banking department which, under the terms of the decree, could sell the notes with the collateral attached thereto.
During the years 1933, 1934, after the Federal Compress Warehouse Company had purchased said notes with their collateral and securities, the children of G.A. Wilson, Sr., paid a total of fifty thousand dollars, the first twenty-five thousand dollars being paid on September 17, 1933, and the second in May, 1934, for the purpose of having six hundred fifteen shares of stock of the Greenwood Compress Storage Company released, which the Federal Compress Warehouse Company refused to do. Negotiations were conducted, but did not result in a mutual agreement. Thereupon, the children and executors of said G.A. Wilson, Sr., filed a petition in the chancery court to secure the release of six hundred fifteen shares of stock in the Greenwood Compress, etc., Company, which, after hearing, the chancellor found and directed in his decree that the funds received through the scheme under contemplation should be used in paying off certain preferred claims against the estate of G.A. Wilson, Sr., which would have the effect of discharging such claims. There was considerable evidence taken as to the total value of the shares in the Greenwood Compress Storage Company. It was testified by John H. McBee, the husband of one of the Wilson heirs, and an executor of the will of G.A. Wilson, Sr., that said shares were of the value of four hundred dollars each. Other testimony placed the value at different figures, but the chancellor found and based their value in the decree on the basis of one hundred fifty dollars per share.
The Federal Compress Warehouse Company contended that to so permit these shares to be withdrawn would take from it a controlling interest in the said company, and claimed that it was entitled to have said shares under the agreement, and that to take away six hundred fifteen shares of stock would deprive it of its right, and would depreciate its security.
The evidence in the case showed that the security remaining would be largely in excess of the amount of the debt remaining.
Construing the trust agreement and the decree, we are of the opinion that the meaning thereof is that there would be no default so long as twenty-five thousand dollars per year was paid, provided each of the four children paid one-fourth thereof, and although some of the notes were due under their terms, there was no default, because the stipulation in the notes and in the trust agreement showed that it was the intention for there to be no default so long as this minimum was paid.
The principal contention here, as we understand it, of the Federal Compress Warehouse Company, the appellant, is that the twenty-five thousand dollars minimum payment to be applied was in discharge of the principal indebtedness, and not of the interest accrued.
The instrument must be construed by taking all of its terms and the situations of the parties under which it was made.
It must be remembered that the widow of G.A. Wilson, Sr., put up her stock in the Greenwood Compress Storage Company for her children, in order to carry out the settlement, and the whole scheme seems to have been to pay the debts to the bank by funds collected in the administration of the estate of G.A. Wilson, Sr., and to preserve the property, and it was, no doubt, realized that there might be and would be great difficulty in raising money during some years, and that the payment of twenty-five thousand dollars per year would reduce the principal debt, which was due September 17, 1938. It was, of course, contemplated that, if the situation warranted, much more than the minimum would be paid each year. The chancellor retained jurisdiction of all suits pending in court to make any order or disposition that would be proper under any situation that might develop. In case the parties could not agree about what should be done, the chancellor was ready, at any time, to adjudicate and adjust any question that might arise growing out of the affairs mentioned in said decree and trust agreement, and he was the legal and impartial arbiter between contentions of the parties.
Taking all the facts in the record and looking at the whole transaction, we are of the opinion that the decree of the chancellor was warranted by the testimony, and that his construction of the instrument was a correct one.
There are certain minor contentions that we do not deal with because, in our view, they are not controlling, and are not vital to a decision of the case presented.
The chancellor was the primary judge of the instrument, and we must assume that he brought his judicial mind to bear upon what was a proper interpretation of the trust instrument, and in the rendition of his decree, and it will therefore be affirmed.
Affirmed.