Opinion
3 Div. 595.
May 17, 1923.
Appeal from Circuit Court, Escambia County; G. W. L. Smith, Special Judge.
Smith, Young, Leigh Johnston, of Mobile, and Ed Leigh McMillan, of Brewton, for appellants.
While appellants are not strictly guardians of appellee, their duties are substantially the same as those of guardians. In re Kellogg, 187 N.Y. 355, 80 N.E. 207, 13 L.R.A. (N.S.) 288; Campbell v. Mansfield, 104 Miss. 533, 61 So. 593, 45 L.R.A. (N.S.) 446. Final settlement with complainant should not be made until she reaches her majority.
Stuart Mackenzie, of Montgomery, for appellee.
The appellee is entitled to a present settlement of the guardianship. Code 1907, § 4434.
Where a testator has appointed a testamentary guardian, without authority of law, for the estate of an infant to whom he has given property under the will, the practically unanimous view of the courts is that the nominee will take and hold the property given to the infant as a trustee, whose authority and duty with respect to the trust are coextensive with the authority and duty of a guardian. Campbell v. Mansfield, 104 Miss. 533, 61 So. 593, 45 L.R.A. (N.S.) 446, and note collecting and reviewing the cases. In New York the doctrine is qualified by denying the creation of a trust, and holding that the nominee takes only a power in trust. In re Kellogg, 187 N.Y. 355, 80 N.E. 207, 13 L.R.A. (N.S.) 288.
The theory of the law is that, having the power to appoint a trustee to hold and dispose of his property under testamentary directions, a testator's attempted nomination of a guardian for the testamentary estate of an infant, which in substance creates a trust, ought not to fail merely because of the misuse of terms, and will be given effect as a testamentary trust according to the purpose of the testator. We think this view is entirely sound, and we hold that under the appointment here shown these respondents are trustees of the complainant's testamentary estate, and are accountable as testamentary guardians would be.
The respondents show by their answer that they have acted under the will as "guardians and trustees" for the complainant's estate, and that they are ready to account for and pay to complainant whatever is her due, provided they can do so without liability to certain other beneficiaries under the will, and accordingly they seek an authoritative construction of item 9 of the will, which is as follows:
"Should either of my grandchildren, Mark Lewis Miller or Blanche Miller, die before receiving all that if living he or she would have been entitled to under this will, the remainder of his or her share or part in my estate shall be paid to or distributed to his or her lineal descendants, if he or she leaves any; if either of said grandchildren, Mark Lewis Miller and Blanche Miller, should die leaving no lineal descendants, then his or her share in my estate shall be paid and distributed to the survivor of said grandchildren; and should both of said grandchildren die without leaving lineal descendants then the said share of the said grandchildren shall be distributed as provided for in case of my children dying without leaving lineal descendants."
Counsel for complainant say of this:
"This entire item of the will has reference to the share of the estate which has not been received by the various legatees or beneficiaries of the trust, who may die, and applies only to the funds they would be entitled to if living. There is nothing in this item to limit or restrict the payment to living children or grandchildren of funds to which they are presently entitled. In the event the appellee should die after settlement with her by her guardians and before the distribution of the main trust fund this item would control the disposition of that share in that trust fund to which she would be entitled if living, and which had not been paid over to her."
We think this is the correct explanation of this provision of the will, and we hold that the trustee, the respondents herein, may and should pay to complainant such funds as they hold on her account, and that when so paid they are removed from the influence of item 9, and freed from the claims of all contingent remaindermen thereunder. The decree of the circuit court in equity will therefore be affirmed.
Affirmed.
ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur.