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  • D.A. Burgin, of Columbus, for appellants. The court in construing a will must ascertain the intention of the testator, gathered from the whole scheme of the will, taking into consideration and giving due weight to every word thereof. Ball v. Phelan, 94 Miss. 293, 23 L.R.A. (N.S.) 895; Keely v. Adams, 149 Miss. 201; Henry v. Henderson, 103 Miss. 48; Chrisman v. Bryant, 108 Miss. 311. The testator, in devising and bequeathing certain property to his children and grandchildren, in each and every case, except as to Brooks P. Beard, used the words, "to ____, each undivided ____ of my said property, absolutely and in fee simple." If he had desired Brooks to have a fee simple estate, he could have and would have written it that way, leaving the interest to the trustee to be handled for the use and benefit of Brooks P. Beard. As to Brooks the devise was in different words — beneficial interest for his lifetime, remainder to his heirs at time of his death, and a trustee designated to take the title, hold the property and manage same for the best interests of the devisee, and further, that in order that there could be no question of the testator's intention as to final disposition of the property after the termination of the life estate he provides that the trustee shall then execute such conveyances as may be then necessary to vest title in the remainder in the heirs at law of Brooks P. Beard, at the time of his death. Before the court can proceed with a sale as prayed in the bill, all parties should be before the court by proper process served upon them and the rights and equities of all owners adjudicated. Owen Garnett, of Columbus, and Will E. Ward, of Starkville, for appellee. Conveyances to trustees do not require technical terms of grant nor strict compliance with common law requirements. 10 R.C.L. 65; 18 C.J. 311. The first sentence of Sub-section (f) of the will passes a one-sixth interest in the estate to John H. Beard in trust for the use of Brooks P. Beard. All remaining parts of the sub-section are concerned with directions to the trustee as to the execution and termination of the trust. Had testator intended to limit this interest to a life estate the obvious method of so doing would have been to have incorporated into the one sentence constituting muniment of title a provision to the effect that the one-sixth interest should go to the trustee for the use and benefit of Brooks P. Beard for term of his natural life with remainder over to the heirs of said Brooks P. Beard. No such express limitation appears anywhere in the will. It is true that the will provides that any of the portion of the estate that might remain in the hands of the trustee at the death of the cestui que trust shall descend to the the latter's heirs. But this appears to be intended merely as a means of terminating the trust. In ascertaining the purpose for which a trust is created, the general scheme of disposition is of more significance than the mere form and phrases employed in the trust instrument. 65 C.J. 514, sec. 264. So studied, the true intent of testator emerges. The trustee took the legal title in fee simple under the first sentence of the sub-section, while the equitable title vested in the beneficiary. Upon the death of the beneficiary his title, i.e., the equitable title, would descend to his heirs, as recognized in the first clause of the sentence. But conveyance might well be needed to pass the legal fee simple title from the trustee and merge it with the equitable fee in the beneficiary's heirs. The mere existence of a trust in an undivided interest in property presents no obstacle to a partition of the property, since the trustee will still represent the beneficiaries and the trust remains as to their shares. 47 C.J. 318; Upham v. Plankstein (Wis.), 48 L.R.A. (N.S.) 1004, Ann. Cas., 1914C, 376; Gaillie v. Eagle, 65 Barb. (N.Y.) 583; Porter v. Stone, 70 Miss. 291, 12 So. 208; Lazard v. Hiller, 145 Miss. 499, 110 So. 855; 20 R.C.L. 752.
Judges
  • McGehee, J., delivered the opinion of the court.
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  • D.A. Burgin, of Columbus, for appellants. The court in construing a will must ascertain the intention of the testator, gathered from the whole scheme of the will, taking into consideration and giving due weight to every word thereof. Ball v. Phelan, 94 Miss. 293, 23 L.R.A. (N.S.) 895; Keely v. Adams, 149 Miss. 201; Henry v. Henderson, 103 Miss. 48; Chrisman v. Bryant, 108 Miss. 311. The testator, in devising and bequeathing certain property to his children and grandchildren, in each and every case, except as to Brooks P. Beard, used the words, "to ____, each undivided ____ of my said property, absolutely and in fee simple." If he had desired Brooks to have a fee simple estate, he could have and would have written it that way, leaving the interest to the trustee to be handled for the use and benefit of Brooks P. Beard. As to Brooks the devise was in different words — beneficial interest for his lifetime, remainder to his heirs at time of his death, and a trustee designated to take the title, hold the property and manage same for the best interests of the devisee, and further, that in order that there could be no question of the testator's intention as to final disposition of the property after the termination of the life estate he provides that the trustee shall then execute such conveyances as may be then necessary to vest title in the remainder in the heirs at law of Brooks P. Beard, at the time of his death. Before the court can proceed with a sale as prayed in the bill, all parties should be before the court by proper process served upon them and the rights and equities of all owners adjudicated. Owen Garnett, of Columbus, and Will E. Ward, of Starkville, for appellee. Conveyances to trustees do not require technical terms of grant nor strict compliance with common law requirements. 10 R.C.L. 65; 18 C.J. 311. The first sentence of Sub-section (f) of the will passes a one-sixth interest in the estate to John H. Beard in trust for the use of Brooks P. Beard. All remaining parts of the sub-section are concerned with directions to the trustee as to the execution and termination of the trust. Had testator intended to limit this interest to a life estate the obvious method of so doing would have been to have incorporated into the one sentence constituting muniment of title a provision to the effect that the one-sixth interest should go to the trustee for the use and benefit of Brooks P. Beard for term of his natural life with remainder over to the heirs of said Brooks P. Beard. No such express limitation appears anywhere in the will. It is true that the will provides that any of the portion of the estate that might remain in the hands of the trustee at the death of the cestui que trust shall descend to the the latter's heirs. But this appears to be intended merely as a means of terminating the trust. In ascertaining the purpose for which a trust is created, the general scheme of disposition is of more significance than the mere form and phrases employed in the trust instrument. 65 C.J. 514, sec. 264. So studied, the true intent of testator emerges. The trustee took the legal title in fee simple under the first sentence of the sub-section, while the equitable title vested in the beneficiary. Upon the death of the beneficiary his title, i.e., the equitable title, would descend to his heirs, as recognized in the first clause of the sentence. But conveyance might well be needed to pass the legal fee simple title from the trustee and merge it with the equitable fee in the beneficiary's heirs. The mere existence of a trust in an undivided interest in property presents no obstacle to a partition of the property, since the trustee will still represent the beneficiaries and the trust remains as to their shares. 47 C.J. 318; Upham v. Plankstein (Wis.), 48 L.R.A. (N.S.) 1004, Ann. Cas., 1914C, 376; Gaillie v. Eagle, 65 Barb. (N.Y.) 583; Porter v. Stone, 70 Miss. 291, 12 So. 208; Lazard v. Hiller, 145 Miss. 499, 110 So. 855; 20 R.C.L. 752.
Judges
  • McGehee, J., delivered the opinion of the court.
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Smart Summary

BEARD et al. v. ROSENZWEIG.

1. PARTITION. Wills.

A will devising an undivided interest in real property to trustee for benefit of incompetent with full power on part of trustee to sell the undivided interest during lifetime of the incompetent did not merely devise a "life estate" to the trustee, so as to preclude partition of the property without trustee's consent.

2. PARTITION.

Tenants in common were entitled to have sold in its entirety property which demurrers admitted was not subject to partition in kind, over objection by trustee of incompetent tenant. (Code 1930, secs. 2920, 2924).

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

This suit is brought by the appellee, as a tenant in common of the defendants named in his bill of complaint, to obtain a sale of a certain store building and lot in the City of Columbus and for the partition of the proceeds of such sale, the property not being subject to division in kind. A general demurrer was interposed by the trustee of one of the tenants in common on the ground that the undivided interest of such owner is limited to a life estate under the terms of a last will and testament, made an exhibit to the bill, wherein such interest is bequeathed to the trustee for the use and benefit of the said tenant in common, Brooks P. Beard, a non compos mentis, with full power on the part of the trustee to sell the same or any part thereof, and to execute proper conveyances thereto in order to enable the trustee to expend so much of the income from the bequest and so much of the principal thereof as may be necessary for the comfortable support and maintenance of the said non compos mentis; and wherein it is also provided in effect that whatever portion of the bequest, if any, should remain unexpended for such purposes at the death of the said Brooks P. Beard, the same shall descend to his heirs-at-law. The non compos mentis is still alive, but the trustee named in the will having died, a new trustee has been appointed by the court, and it is contended by him that the property is not subject to sale for partition without his consent. A special demurrer was also interposed on the ground that the potential heirs at law of the said non compos mentis, as remaindermen, are not made parties to the suit. Both demurrers were overruled by the court below, and this interlocutory appeal was granted to settle the only legal questions involved, or which could probably arise.

We think that the appellant is in error in contending that there was bequeathed to the trustee for the non compos mentis only a life estate. It is not required under the will that there should be any remainder. The trustee is given full power to sell this undivided interest during the lifetime of the said beneficiary of the trust, Brooks P. Beard. The other tenants in common are entitled, under Sections 2920 and 2924, Code of 1930, to have the property sold in its entirety since the demurrers admit that the same is not subject to partition in kind. Therefore, the decree of the court below in overruling the demurrer was correct.

Affirmed and remanded.

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BEARD v. ROSENZWEIG
(Feb 10, 1941)