Summary
In Rice, supra, we held that inferences are not sufficient to uphold process by publication and nothing short of a positive averment of the facts will suffice.
Summary of this case from Mosby v. GandyOpinion
No. 37226.
November 28, 1949.
1. Equity — process — non-residents — service by publication — jurisdiction — constitutional law.
The provisions of the statute as to how a non-resident may be brought into a chancery court in this state furnish one of the methods provided by law to meet the requirements of the due process clause of the Constitution and are jurisdictional.
2. Equity — process — non-residents — service by publication — statute must be strictly pursued.
The provisions of the statute as to how a non-resident may be brought into a chancery court in this state must be strictly pursued, and unless so done, constructive service of process under it will be insufficient to support a decree.
3. Equity — process affidavit as to non-residence when not sufficient.
Under the provisions of the statute as to how a non-resident may be brought into a chancery court in this state, the requirement is that by sworn bill or petition or by affidavit filed the defendant must be shown to be a non-resident of this state or not to be found therein on diligent inquiry, a showing which must be made by nothing short of positive factual averment; so that it is insufficient to state no more than that the defendant is a resident of another state giving his post office address in that state, thereby making the allegation of his non-residence to depend upon inference.
4. Constitutional law — courts — process — judgments.
No man can be divested of his rights by any order or decree until he has been brought into court by service of process, by publication of notice or in some equivalent way and it is not within legislative power to dispense with this fundamental requirement.
5. Equity — parties — legal summons or legal appearance, necessity of.
Although a defendant to a suit may have full knowledge of its pendency and that he is a party defendant thereto, any decree made therein against him will be void and of no effect so far as he is concerned unless he has been legally summoned or he has made a legal appearance.
6. Wills — contest — party defendant without legal notice — knowledge of contest — estoppel.
The fact that a party defendant to a will contest, but who has not been legally summoned, and has made no appearance, had full knowledge thereof does not estop him later to challenge the decree rendered in the contest when all the material facts were known to the others concerned, and he merely remained silent, and did not act upon which any other party relied or had any right to rely, there being no intention or expectation by his silence or non-action to mislead any person, and no legal duty rested on him to take any action or make any statement about the matter.
7. Equity — laches — wills — trusts.
A party who seeks to recover his share of the residue of an estate which under the terms of the will had been placed in the hands or under the control of trustees during the life of a named devisee, distribution of the residue not to be made until her death, is not chargeable with laches in not bringing his suit before the death of the named devisee.
8. Wills — probate in common form — effect of.
The probate of a will in common form by the clerk in vacation is prima facie evidence of the validity of the will until the will is declared invalid and set aside by a proper and lawful proceeding in a proper court having jurisdiction of the subject matter and of the parties in interest, and this remains true, athough the order of the clerk in vacation was never approved by the chancellor.
9. Wills — suit by devisee to recover his share — introduction of probate in common form.
When in a suit by a devisee to recover his share of the devised estate, he has introduced in evidence the proceedings before the clerk wherein the will was admitted to probate in common form, thereby making out a prima facie case in his behalf, a decree in his favor is correct and will be upheld when the only evidence to the contrary is that of a witness that from the appearance of testator's signature to the will some one assisted him in making his signature.
10. Wills — testamentary trust — trust estate — wrongful delivery of — recovery of his share by residuary devisee.
Where by the terms of a will the property had been devised to trustees with a named devisee as beneficiary during her life, and the will was declared invalid in a contest of the will, to which contest a residuary devisee was not legally brought in as a party, and the property was immediately delivered by the trustees to the sole heir at law of the testator, the residuary legatee was entitled to a money decree against the estate of the heir at law for the value of his residuary interest, it being an agreed fact that at the time of the latter decree the specific property could not be identified or traced.
11. Wills — intention of testator is controlling in the construction of a will.
In the construction of a will the court is concerned alone with the intention of the testator and looks to the four corners of the will to ascertain that intention, not from what he might have intended to say but from what he actually said in the words used in his will.
12. Wills — testamentary trust — credit for expenditures which under the trust the trustees would have expended.
When under the testamentary trust established by the will the trustees were directed to make certain expenditures out of the trust estate for the benefit of testator's sister, the life beneficiary under the will, but the trustees, under an invalid decree which purported to set aside the will, turned over the entire trust property to the sister as the sole heir at law of the testator, it was proper in the suit by the residuary legatee against the estate of the sister for his share of the residuary estate to credit against his demand the amount which the trustees would have been under duty to expend under the will for the sister's benefit, and which amount the sister herself spent out of the property delivered to her.
Headnotes as approved by McGehee, C.J.
APPEAL from the chancery court of Tallahatchie County; R.E. JACKSON, Chancellor.
Breland Whitten, for appellants.
The summons by publication to Nathan McMullen was in substantial compliance with Section 1852 Code 1942, directing the manner of issuing summons by publication. McCray v. McCray, 137 Miss. 160, 102 So. 174; Mays Food Products Incorporated v. Gloster Lumber Co., 137 Miss. 691, 102 So. 735; Hume v. Inglis, 154 Miss. 481, 122 So. 535.
Nathan McMullen had actual knowledge of the suit pending against him and of the effect such suit would have on his interest under the McCalep will. Nathan McMullen is therefore estopped to question or attack the decree rendered against him. Freeman on Judgments, Volume 1 Fifth Ed., page 250, Section 299, and page 454, Section 230; C.J.S. Vol. 49, page 550 (Judgments, Section 299); A.L.R. Vol. 122, page 624 (Anno.); Am. Jur. Vol. 31, page 279 (Judgments) Section 734; Am. Jur. Vol. 19, page 634, Section 34, and pages 639-40, Sections 40 and 41, (Estoppel) and pages 644-645, Section 46, and pages 648-649, Section 49, and pages 661-664, Section 55, (Estoppel); Pomeroy, Equity Jurisdiction, Vol. 2, Third Ed. page 995, Section 603; Levi Staton v. Boyd F. Bryant, et al., 55 Miss. 103; Jones et al. v. Crawford et al., 201 Miss. 791, 30 So.2d 513; Kelso et al. v. Robinson, 172 Miss. 828, 161 So. 135; Straus Bros. v. Denton, 140 Miss. 745, 106 So. 257, 45 A.L.R. 341.
The appellee is barred of any rights he claims by reason of his gross laches. C.J.S., Vol. 30, pages 520-25, (Equity) Sections 112-113; Freeman on Judgments, Vol. 1, Fifth Ed., pages 529, 530, 540; Griffith's Mississippi Chancery Practice, Sections 32-33; Sample v. Romaine, 193 Miss. 706, 8 So.2d 257; Marks v. Toney, 196 Miss. 572, 18 So.2d 452; Stanley v. Stanley, et al., 201 Miss. 545, 29 So.2d 641; Mobile Ohio Railroad Company v. Swain, 164 Miss. 825, 145 So. 627; Comans et al. v. Tapley et al., 101 Miss. 203, 57 So. 567; Van Landingham et al. v. Meridian Creek Drainage District et al., 191 Miss. 345, 2 So.2d 591; Lamar v. Houston, 183 Miss. 260, 184 So. 291; Section 752, Code 1942; Cratin v. Cratin, 178 Miss. 881, 173 So. 415, (On Suggestion of Error, 178 Miss. 881, 174 So. 255).
Appellee's suit to recover his pro rata share of the McCalep estate is a collateral attack on the decree voiding the McCalep will and must fail. Freeman on Judgments, Fifth Ed., Vol. 1, page 530, Section 265.
The appellee should not recover under the McCalep will because this will has never been legally probated. Sections 1253, 1254 Code 1942; King v. King, 161 Miss. 51, 134 So. 827; Bigleben v. Henry, 196 Miss. 586, 17 So.2d 602.
Appellee wholly failed to show that appellants have in their hands any funds derived from McCalep's estate. Griffith's Mississippi Chancery Practice, page 715, Section 626.
We therefore respectfully submit to the court that under the proof in this case and the state of this record, that complainant has failed to show that he is entitled to any decree whatever against the defendants; that prior to the final hearing of this cause, he had actual knowledge of the pendency of the will contest; that he knew the facts which formed the basis of any right he may have had under the will; he knew the validity of the will was being contested; he made statements which would lead a reasonable person to believe that he was not claiming anything under the will; he certainly stated that he did not want to litigate with Mrs. Armstrong, and these facts were conveyed to Mrs. Armstrong and her attorneys before the final decree and before the compromise referred to in the record was effectuated. If he wanted to claim anything under the will, it was his duty to be vigilant and assert such rights as he wanted to in the trial court; that after the decree had been entered and the case had been settled, he was advised of the results thereof; he then sat idly by for more than five years without taking any action or asserting any right and until the records as to the disbursement of the money coming to Mrs. Armstrong from the Pat McCalep estate had been lost and until Mrs. Armstrong died, thereby making it impossible for her to offer proof as to what she had done with the money and as to how it had been expended. It had become impossible to determine definitely how much Mrs. Armstrong had been required to pay for doctors' bills, nurses' bills, and hospital bills for her proper care, which expenditures were provided for in the will of Pat McCalep, in addition to the amount certain which she was to receive under that will; therefore, he waited until the proof in material respects had disappeared and waited until she had died, and, as stated in the cases above cited, these are material factors to be considered by the court on the question of estoppel and laches. Further, we say that under the laws of this state, the will was never legally probated, and that since complainant claims under the will and deraigns his title to his alleged portion of the Pat McCalep estate through the will, this he cannot do until the will is legally established. Then, because of lapse of time and the death of Mrs. Armstrong, it is impossible to determine, as above stated, what the state of Pat McCalep's estate was in the hands of these defendants, if any there was, or what money belonged to her estate was in their hands. We therefore respectfully submit that the decree of the lower court should be reversed and decree entered here for the appellants.
Roberson, Luckett, Roberson, for appellee.
POINT 1. Decree of April 23, 1940, void. Belt v. Adams, 124 Miss. 194, 86 So. 584; Burks v. Burks, 66 Miss. 494, 6 So. 244; Section 1852, Code 1942; Diggs v. Ingersoll (Miss.) 28 So. 825; Evans v. Brown, 198 Miss. 237, 21 So.2d 588; Fant v. Fant, 173 Miss. 472, 162 So. 159; Griffith's Mississippi Chancery Practice, Paragraph 236; Henderson v. Odom, (Miss.), 22 So.2d 416; Hume v. Inglis, 154 Miss. 481 122 So. 535; Mays Food Products, Inc. v. Gloster Lumber Co., 137 Miss. 691, 102 So. 735; McCray v. McCray, 137 Miss. 160, 102 So. 174; Mercantile Acceptance Corporation et al. v. Hedgepeth, 147 Miss. 717, 112 So. 872; Moore v. Summerville, 80 Miss. 323, 32 So. 294; Ponder v. Martin, 119 Miss. 156, 80 So. 388; Purvis v. Woodward, 78 Miss. 922, 29 So. 917; Sellers v. Powell, 168 Miss. 682, 152 So. 492; Snell v. Fewell, 64 Miss. 655, 1 So. 908; Stewart v. Coleman Co., 120 Miss. 28, 81 So. 653; Toulme v. Clark, 64 Miss. 471, 1 So. 624.
POINT 2. Appellee's knowledge of pendency of proceedings does not give validity to decree of April 23, 1940. Boutwell, Sheriff, v. Grayson et al., 118 Miss. 80, 79 So. 61; Burns v. Allen, 202 Miss. 240, 31 So.2d 125; C.J.S. 21, Courts, paragraph 83, page 124; Griffith's Mississippi Chancery Practice, Sections 223, 236; McCoy et al. v. Watson, 154 Miss. 307, 122 So. 368; Paepcke-Leicht Lumber Co. v. Savage, 137 Miss. 11, 101 So. 709; Sellers v. Powell, 168 Miss. 682, 152 So. 492.
POINT 3. Appellee is not estopped to question the validity of the decree of April 23, 1940, nor is he guilty of laches. Kelso v. Robinson, 172 Miss. 828, 161 So. 135; Lucas v. New Hebron Bank, 181 Miss. 762, 180 So. 611; Roberts v. Bookout, 162 Miss. 676 139 So. 175; Sample v. Romine, 193 Miss. 706, 8 So.2d 257; Staton v. Bryant, 55 Miss. 261.
POINT 4. Validity of P.H. McCalep's will established by order of clerk admitting it to probate. Bigleben v. Henry, 196 Miss. 586, 17 So.2d 602; Secs. 507, 1248, Code 1942; O'Bannon v. Henrich, 191 Miss. 815, 4 So.2d 208.
POINT 5. Appellee is entitled to money judgment against Armstrong estate. Bogert on Trusts, Paragraph 867; Restatement of the Law of Trusts, Paragraph 291; Scott on Trusts, Paragraphs 291.2, 291.7.
POINT 6. Comment an appellants' cases and observations on their arguments. Comans v. Topley, 101 Miss. 203, 57 So. 567; Cratin v. Cratin, 178 Miss. 881, 173 So. 415, 174 So. 255; Crawford v. Redus, 54 Miss. 700; Duncan v. Gerdine, 59 Miss. 550; Jones v. Crawford, 201 Miss. 791, 30 So.2d 513; Kelso v. Robinson, 172 Miss. 828, 161 So. 135; King v. King, 161 Miss. 51, 134 So. 827; Lamar v. Houston, 183 Miss. 260, 184 So. 293; M. O. Railroad Co. v. Swain, 164 Miss. 825, 145 So. 627; Marks v. Tony, 196 Miss. 572, 18 So.2d 452; McKenney v. Adams, 95 Miss. 832, 50 So. 474; Paepcke-Leicht Lumber Co. v. Savage, 137 Miss. 11, 101 So. 709; Sample v. Romine, 193 Miss. 706, 8 So.2d 257; Schwartz Bros. Co. v. Stafford, 166 Miss. 397, 148 So. 794; Sivley v. Summers, 57 Miss. 712; Stanley v. Stanley, 201 Miss. 545, 29 So.2d 641; Staton v. Bryant, 55 Miss. 261; Strauss Bros. v. Denton, 140 Miss. 745, 106 So. 257; Van Landingham v. Meridian Creek Drainage District, 191 Miss. 345, 2 So.2d 591.
POINT 7. Amount of judgment to which appellee is entitled can be determined exactly.
Conclusion.
We can summarize our conclusions about the decree of April 23, 1940, in no better way than by quoting from paragraph 29 of Griffith's Chancery Practice: "The party who brings the suit confers by that act all necessary personal jurisdiction as to himself, but as to the defendant, and as to each of the several parties defendant, he must either (1) voluntarily appear, personally or by his authorized solicitor, or (2) he must be served with process in the manner and for the time required by law whereby he is legally warned to appear and make defense, if he so desire. If he do not appear, or if he be not legally served, one or the other, there is no jurisdiction over him, and any action taken against him will be no more than no action at all — it will be void as to him." The facts of this case bring us squarely within that statement.
Appellee is not estopped to bring this action. We have already clearly demonstrated that. And as to laches, there has been no real passage of time, certainly no passage of time that would work an injustice on appellants.
We ask the court to remember that every beneficiary named in P.H. McCalep's will — with the glaring exception of appellee — has gotten his or her share of that estate. Appellee's share was taken in charge by Mrs. Armstrong. There is no reason why her estate should not refund it to him.
Justice demands that Mrs. Armstrong's estate be required to disgorge that which is not its and to pay it over to the one rightly entitled to it, to-wit: Appellee. Any other result will unjustly enrich those claiming through Mrs. Armstrong and will defeat the intention of P.H. McCalep, from whom the money asked to be refunded originated.
We submit that justice requires that appellee have a judgment requiring the executors of the estate of Mrs. Armstrong to pay over to him the sum of $5,384.33, with 6% interest thereon from November 12, 1945, together with the statutory damages.
Roberson, Luckett, Roberson, for appellee and cross-appellant.
POINT 1. A personal power vested in particular trustees can be exercised only by those trustees. Bartlett v. Sutherland, 24 Miss. 395; Bogert on Trusts and Trustees, Paragraph 560; Chandler v. Chandler, 111 Miss. 525, 71 So. 811; Montgomery v. Millikin, 5 S. M. 151; Reedy, et al, v. Johnson's Estate, 200 Miss. 205, 26 So.2d 685; Virginia Trust Company et al. v. Buford, et al., 123 Miss. 572, 86 So. 356; Whitfield v. Thompson, 85 Miss. 749, 38 So. 113; Yeates v. Box, 198 Miss. 602, 22 So.2d 411.
Conclusion. We respectfully submit that Mrs. Armstrong was entitled to receive from the trust estate created by P.H. McCalep only those sums provided in his last will and testament and that the settlor's wishes, as expressed in that instrument, should be respected. She was entitled to benefits under Item V of said will only if the conditions attached thereto were met, and not otherwise.
The settlor made the payment of the expenses of Mrs. Armstrong's illnesses out of the estate funds dependent upon the decision of his executors and trustees that the illnesses justified the payment of those expenses out of the estate funds. And since no such decision was ever made by the executors and trustees, those expenses were not payable out of the estate funds.
We submit that the principal of the decree granted cross-appellant should have been $5,384.33 and that this court should rectify the error of the trial court by changing its decree accordingly.
Breland Whitten, for cross-appellees.
POINT 1. Where trustee, for any reason, fails to exercise his discretion, the court will substitute its discretion and carry out testator's wishes. Smith v. Bell, 31 U.S. 6 Pet. 68 L.Ed. 322 (at page 327); Scott on Trusts, Lifetime Ed., Vol. 2, Sec. 187.3, Sec. 187.1; Coker v. Coker (Ala. 1922), 94 So. 566; Colton v. Colton, 127 U.S. 300, 855 S.Ct. 1164, 32 L.Ed. 138; Strawn v. Caffee, (Ala. 1938) 178 So. 430; Randolph v. East Birmingham Land Co., 104 Ala. 355, 16 So. 126, 53 Am. St. Rep. 64; McDonald v. McDonald, (Ala.) 1 So. 195; Yeates v. Box, 198 Miss. 602, 22 So.2d 411.
POINT 2. Cross-appellant is estopped and guilty of gross laches in the matter of expenditures for medical purposes.
Conclusion. The testator executed a will calculated to provide for his only close relative, his sister, a widow and semi-invalid, for so long as she might live. He left his estate in the hands of two trustees and provided that they should pay her $200 the month plus "In the event of illness or other emergency, which in the judgment of my said trustees and executors, shall justify the expenditure. . . . whatever amount may be necessary for the proper care of my sister." We believed that testator intended this provision to be read as follows: "In the event of illness, or other emergency which in the judgment of my said trustees and executors shall justify the expenditure. . . . whatever amount may be necessary for the proper care of my said sister." In the event of illness he did not call for the judgment of his trustees, it was for "other emergencies" that he wanted them to exercise their judgment and discretion, they being business men.
Testator's sister contested the will and a decree was entered setting the will aside and ordering the trustees to pay over to her the money in their hands as such. The condition of her health grew steadily worse and she expended $7000 for medical care, all of which cross-appellant admits, and the court found as a fact, was necessary for her proper care. Is it not preposterous to contend that these expenditures were unlawfully made because testator's sister did not seek out the trustees and obtain their "judgment" before paying for her medical care? Surely it is.
We submit that the trial court made no error in holding that cross-appellant was not entitled to one-fifth of this sum.
The appellee, Nathan J. McMullen, a residuary legatee under the will of P.H. McCalep, brought this suit in the Chancery Court of the Second Judicial District of Tallahatchie County to recover from the estate of Mrs. Carrie McCalep Armstrong, a sister of P.H. McCalep, deceased, his alleged rightful share of the residuum of the trust estate created by the last will and testament of P.H. McCalep, the corpus of which trust estate, it is alleged, had been wrongfully appropriated by Mrs. Armstrong, as the sole heir at law of P.H. McCalep, deceased, on the strength of a void decree rendered by the trial court theretofore on April 23, 1939, whereby it was decreed that the alleged will was not the true last will and testament of P.H. McCalep, deceased, and adjudging Mrs. Armstrong to be his sole heir at law and as such entitled to receive the estate. There was a decree in the lower court for appellee for the sum of $3,984.33 and from this decree the executors appeal and the appellee cross-appeals.
For a full understanding of the case presented here for decision it is necessary that we briefly review the facts.
On February 10, 1939, P.H. McCalep executed his last will and testament, Items 4, 5, and 10 of which are material in our discussion here and which items read as follows:
"IV. It is my desire that my sole, surviving close relative, to-wit: my sister, Carrie McCalep Armstrong, shall be provided for during her life. I, therefore, constitute and appoint the said M.P. Sturdivant and the said J.R. Flautt, my trustees, to take charge of, to manage, and to invest all property of which I shall die, seized and possessed, to hold, manage and to invest the same and out of the proceeds to pay to my said sister each a sum and amount equal to $200.00 per month, there being charged against the said $200.00 a month, the amount per month which my sister shall receive from any annuity policies which I have procured, payable to her; she, however, to receive in addition to the $200.00 per month, the proceeds of any policies other than annuity policies in which she is beneficiary, which sum or sums so received shall not be considered or computed as payments on the $200.00 per month allowance herein provided for.
"V. In the event of illness or other emergency, which in the judgment of my said trustees and executors, shall justify the expenditure, they are authorized in addition to the $200.00 a month, to expend additional sum out of either income or principal in whatever amount may be necessary for the proper care of my said sister."
"X. After my said sister shall die, the property in the hands of said trustees shall be divided equally between Mrs. Alice McMullen, Mrs. Nita Seawright Campbell, Mrs. Katie Seawright Crowe, Nathan McMullen, Francher McMullen Provine, share and share alike."
P.H. McCalep died on February 16, 1939, just six days after the execution of the will. On February 21, 1939, it was offered for probate in common form and by order of the Chancery Clerk was duly admitted to probate and record. On March 21, 1939, Mrs. Carrie McCalep Armstrong filed a contest of the will on the grounds that it was not lawfully executed by the testator and that the testator did not have, at the time of its alleged execution, the necessary testamentary capacity to enable him to make a will. All of the legatees, who were to take under the will, were made parties. The appellee, Nathan J. McMullen was alleged in the petition to be a non-resident in the following language, "Nathan J. McMullen, whose place of residence and postoffice address is Sherman, Texas, but whose street address is unknown to respondent and could not be ascertained after diligent inquiry". There was no separate affidavit and the foregoing was the sole allegation in support of the process by publication for appellee, Nathan J. McMullen. Thereafter all of the parties defendant, except the appellee, employed attorneys to represent them in resisting the effort of Mrs. Armstrong to have the will declared null and void and the proposed contract of employment of said attorneys was sent to Nathan J. McMullen at his home in Sherman, Texas, but was returned by him without signature. Appellee stated to the other residuary legatees that he did not want to be involved in a lawsuit with Mrs. Armstrong. He also acknowledged that he received from the clerk a copy of the published summons and that he received a copy of the instrument purporting to be the will of P.H. McCalep.
Before the trial of the will contest a settlement was agreed upon, by all of the defendants, except Nathan J. McMullen, as a result of which $16,500.00 was paid over to the other legatees, excepting Nathan J. McMullen, and those legatees agreed not to contest Mrs. Armstrong's action to set aside the will and to permit her, without contest, to take the decree desired by her. This agreement was carried out and although the decree rendered pursuant to Mrs. Armstrong's action appears by its terms to have been granted by the court after a contest of the issues involved in the action, there was, in fact, no such contest and the same was obtained by Mrs. Armstrong with the consent of all of the legatees under the will of P.H. McCalep, deceased, excepting Nathan J. McMullen, who did not consent and received nothing from the settlement of the lawsuit. On April 23rd, 1939, the court, under the circumstances above stated entered a decree setting aside the alleged will of P.H. McCalep, deceased, adjudging Mrs. Armstrong to be the sole heir at law of the deceased, and directing payment of the assets of the estate over to her as such.
From the date of this decree Mrs. Armstrong was in full possession and control of the assets of the estate of P.H. McCalep, deceased, mixing and commingling them with her own and enjoying them as her pleasures or necessities might require until her death on February 17, 1945.
Thereupon, the date of the filing not appearing in this record, the appellee, Nathan J. McMullen, filed his original bill against the appellants, who had been appointed executors upon the estate of Carrie McCalep Armstrong, deceased, and to this an amended bill was filed, the filing date not being shown in the record, and a second amended bill was filed on February 5, 1947. To these there were full answers by the defendants.
The pleadings admit that on the faith of the decree of April 23, 1940, and pursuant to the further orders of the court, M.P. Sturdivant and J.R. Flautt, the executors of the estate of P.H. McCalep, after paying all of P.H. McCalep's just debts, including those incurred in his last illness and those owed to his physicians and those probated against his estate; and after converting all of P.H. McCalep's real estate and personal property into cash, with the exception of a promissory note due by J.R. Flautt to P.H. McCalep in the amount of $4500.00, a $5,000.00 certificate of deposit with the Bank of Sumner, and a $7,988.32 savings account with the Bank of Clarksdale, and after paying the legacy provided by P.H. McCalep for Sarah Faulkner; and after paying all costs of administration, including Clerk's costs, executors' fees and attorney's fees and after paying all taxes due by the estate, delivered all of the remaining assets of the estate of P.H. McCalep to the said Mrs. Armstrong. Those assets consisted of $16,500.00 in cash, a $5,000.00 certificate of deposit in Bank of Sumner, a $7,988.32 savings account deposit in Bank of Clarksdale and promissory note of J.R. Flautt on which there remained unpaid the sum of $4,500.00. Mrs. Armstrong thereafter collected said sums from said banks and said note from said Flautt, said gross assets amounting to a total sum of $33,988.32, The pleadings further admit that out of this sum Mrs. Armstrong paid the legacies provided for Nita Seawright Campbell, Katie Seawright Crowe, Nathan James Boatner and Patrick Wilson Flautt — amounting to a total of $2,500.00, thus leaving the net estate available to Mrs. Armstrong in the sum of $31,488.32.
The pleadings further admit that P.H. McCalep procured, prior to the execution of his last will, two annuity policies, under one of which the insurance company paid to Mrs. Armstrong seventy-two monthly installments of $63.89 each from February 27, 1939, to January 27, 1945, inclusive — a total of $4,600.08, and under the other policy the insurance company paid to Mrs. Armstrong $766.80 on May 24th of the years 1939 through 1944, inclusive, and that her estate collected a like sum on May 24, 1945 — the total of these annual payments, together with the proportionate part of the last payment aggregating the sum of $5,233.23 or a grand total received by Mrs. Armstrong on both policies in the sum of $9,833.31.
The pleadings framed the following issues: (1) Was the decree of April 23, 1939, setting aside the will of P.H. McCalep, adjudicating Mrs. Armstrong to be the sole heir at law of P.H. McCalep, deceased, and directing the payment over to her of the assets of the estate as such, binding on appellee Nathan J. McMullen? (2) Was the alleged instrument of writing the true last will and testament of P.H. McCalep? (3) Was Nathan McMullen estopped to assert the invalidity of the aforesaid decree of April 23, 1939, and (4) was Nathan McMullen guilty of such laches as would bar his right of recovery?
By stipulation of counsel it was among other things agreed that the decree of the clerk admitting the will of P.H. McCalep, deceased, to probate in common form was not thereafter approved by the Chancellor of said court and that Mrs. Armstrong was never completely well and that she expended for hospital bills, doctor bills, medicines and for nurses a sum between $6,000.00 and $8,000.00 between the date of the death of P.H. McCalep and her own death and that the money so expended was necessary for her proper care.
The learned court below found that the decree of April 23rd, 1939 was not binding upon Nathan J. McMullen because of void service of process upon him; that the alleged will was the true last will and testament of P.H. McCalep, deceased; that Nathan J. McMullen was not estopped to assert the invalidity of the decree of April 23rd, 1939; that he was not barred by laches and that he was entitled to recover from the estate of Mrs. Armstrong, under the provisions of item 10 of the will of P.H. McCalep, deceased, the sum of $3,984.33, which amount was arrived at as follows: Mrs. Armstrong lived 72 months after the death of P.H. McCalep and was entitled, under the will to receive 72 monthly payments of $200.00 each — totaling the sum of $14,400.00. She received from the annuity policies a total of $9,833.31, which when deducted from the $14,400.00 leaves $4,566.69 which she was entitled to receive out of the McCalep estate. Take $31,488.22 which was the net of the McCalep estate, and deduct from it this $4,566.69, which Mrs. Armstrong was entitled to receive from the estate for her care, and this leaves $26,921.63. The Court then found that under item 5 of the will and the stipulation of counsel it was necessary for Mrs. Armstrong to expend for her care, in addition to the $200.00 per month allowed under Item 4 of the will, the sum of $7,000.00, which when deducted from the $26,921.63 balance above mentioned, leaves the sum of $19,921.63, which represents the net residue of the estate of P.H. McCalep that passed under item 10 of the will to the residuary legatees. Under said item of the will Nathan J. McMullen was entitled to a one-fifth part thereof or the sum of $3,984.33 for which a decree was rendered in his favor.
It is first assigned as error, here on the direct appeal, that the decree of the lower court is contrary to the law and the evidence and that the lower court erred in holding that the decree of April 23rd, 1939, setting aside the will of P.H. McCalep was null and void insofar as it affected the rights of Nathan McMullen. We are of the opinion the lower court was correct in so holding.
Section 1852, Code of 1942, reads as follows:
"If the defendant in any proceeding in a chancery court be shown by sworn bill or petition, or by affidavit filed, to be a non-resident of this state, or not to be found therein on diligent inquiry and the post office of such defendant be stated in the bill, petition or affidavit, or if it be therein stated that it is not known to the complainant or petitioner after diligent inquiry, or if the affidavit be made by another for him, that such post office is unknown to affiant after diligent inquiry and he believes it is unknown to complainant or petitioner after diligent inquiry by complainant or petitioner, the clerk, upon the filing of the bill or petition, account or other commencement of a proceeding, shall promptly prepare and publish a summons to such party to appear and defend the suit, on a rule day in vacation sufficiently distant in time to admit of the due publication thereof, or on the first day of the next regular term if thereby the answer of the defendant would be the earlier required. The summons shall be substantially in the following form, to-wit:
"`The State of Mississippi.
"`To ____ (inserting name of defendant). You are summoned to appear before the chancery court of the county of ____ in said state, on the ____ Monday of ____ A.D. ____ to defend suit No. ____ in said court of ____ (et al.) wherein you are a defendant.
"`This ____ day of ____ A.D.
"`_________________ Clerk.'
"The publication of said summons shall be made once in each week during three successive weeks in a public newspaper of the county in which the court is held if there be one, and where there is no newspaper in the county the notice shall be posted at the courthouse door of the county and published as above provided in a public newspaper in an adjoining county or at the seat of government of the state, and the period of said publication shall be deemed completed at the end of twenty-one days from the date of the first publication, provided there have been three publications made as hereinabove required; and upon proof of the prescribed publication of such summons and of the mailing of a copy of the summons to the defendant at his post office where that is stated, the defendant may be thereupon proceeded against as if he had been served personally for five days previously to the date of the completion of said publication, with a summons in the case in this state. Where the post office address of a defendant is given the street address, if any, shall also be stated unless the bill, petition, or affidavit above mentioned, aver that after diligent search and inquiry said street address cannot be ascertained."
It will be noted that under this statute it is expressly made a condition precedent to the issuance of process by publication that "the defendant . . . be shown . . to be a non-resident of this state, or not to be found therein on diligent inquiry . . ." Mrs. Armstrong did not fulfill this condition. She simply named as defendant: "Nathan McMullen, whose place of residence and post office address is Sherman, Texas, but whose street address is unknown to respondent and could not be ascertained after diligent inquiry . .". She did not state in her pleading that Nathan McMullen was a non-resident of this state, or not to be found therein on diligent inquiry.
(Hn 1) There is no ambiguity as to how a non-resident shall be brought into court. In substance the statute simply provides that, in order to bring in a non-resident defendant, the complainant as his first step must either in his sworn bill or petition or separate affidavit make oath that the defendant is a non-resident of this state or not to be found therein on diligent inquiry, and the post office address of such defendant if known, and, if not known after diligent search and inquiry, so stating; and if the post office address is known then by giving the street address if known and if not known, after diligent search and inquiry, so stating. This statute is jurisdictional. It is one of the methods provided by law to meet the requirements of the due process clause of the Constitution. Burns v. Burns, 133 Miss. 485, 97 So. 814. This Court has repeatedly held that (Hn 2) constructive service of process under this statute by publication is insufficient to support a decree, unless the requirements of the statute are strictly pursued. Burns v. Burns, supra; Ponder v. Martin, 119 Miss. 156, 80 So. 388; Id., Miss., 78 So. 929; Moore v. Summerville, 80 Miss. 323, 31 So. 793, 32 So. 294; Diggs v. Ingersoll, Miss., 28 So. 825; McCray v. McCray, 137 Miss. 160, 102 So. 174; Mays Food Products, Inc., v. Gloster Lumber Co., 137 Miss. 691, 102 So. 735; Hume v. Inglis, 154 Miss. 481, 122 So. 535; Mercantile Acceptance Corp. v. Hedgepeth, 147 Miss. 717, 112 So. 872; Sellers v. Powell, 168 Miss. 682, 152 So. 492; Cratin v. Cratin, 178 Miss. 881, 173 So. 415, 174 So. 255.
(Hn 3) It is argued that to state in the bill that the place of residence and post office address of the defendant is Sherman, Texas, is to state the inescapable inference that the defendant is a non-resident of Mississippi but inferences are not sufficient to uphold a process by publication and nothing short of a positive averment of the facts will suffice. Hume v. Inglis, 154 Miss. 481, 122 So. 535. The sworn bill in the case before us was defective in that it did not state that Nathan J. McMullen was a non-resident of the State of Mississippi, and the attempted service of process upon him by publication was null and void. Paepcke-Leicht Lumber Co. v. Savage, 137 Miss. 11, 101 So. 709; Sellers v. Powell, 168 Miss. 682, 152 So. 492; McCoy et al. v. Watson, 154 Miss. 307, 122 So. 368, and many other cases.
It is further assigned as error and argued by appellant that even though the process by publication for Nathan J. McMullen was void still he is estopped from attacking the validity of the decree of April 23, 1939, because he knew of the death of P.H. McCalep and that he left a will in which he, Nathan J. McMullen, had been named as one of the residuary legatees; he had seen a copy of the will; he knew that Mrs. Armstrong had filed a contest of the will and was endeavoring to set it aside; he knew that his co-defendants had employed lawyers to uphold the will; and he knew that they were endeavoring to get him to join them in the defense of the suit. Did these acts estop the appellee from attacking the validity of the decree setting aside the P.H. McCalep will? We think not.
Griffith's Mississippi Chancery Practice, Section 223, page 221, states the rule as follows:
(Hn 4) "It is a cardinal principle in the administration of justice that no man can be condemned, or divested of his rights, until he has had an opportunity of being heard. He must, by service of process, by publication of notice or in some equivalent way, be brought into court, and if judgment be rendered against him before that is done, the proceedings will be as utterly void as though the court had undertaken to act where the subject matter was not within its cognizance. The principle is universal that no judgment, order or decree is valid or binding upon a party who has had no notice of the proceeding against him. The court must not only have jurisdiction of the subject matter, but also of the persons of the parties to give validity to its final judgments, orders and decrees, and it is not in the power of the legislature, under our constitution, to dispense with this notice, actual or constructive."
21 C.J.S., Courts, Sec. 83, page 124, announces the rule as follows:
". . . it is held that a person's knowledge of the existence of an action does not supply the want of compliance with the statutory or legal requirements as to service, and that a person's mere presence in court does not give jurisdiction to enter a judgment against him when he was not brought there by any legal means."
This contention by appellant has been forever set at rest in this state by the decision in McCoy et al. v. Watson, 154 Miss. 307, 122 So. 368, 370, wherein it was said:
"Finally, it is argued that since the filing of the petition to remove shows conclusively that the nonresident defendant knows all about the suit, and has all the actual knowledge that could be conferred by a legal summons, we should not require the ceremony of a legal notification; that it would be an idle thing to do. Upon the same reasoning it could be maintained that the affidavit of the sheriff and witnesses could be received to show that, although the sheriff had not served the defendant with a formal legal summons, he had told the defendant orally in the presence of these witnesses all about the suit and warned him to appear and when to appear, and that the defendant had gone to the courthouse and read all the papers in the case and had obtained certified copies of the case papers and knew everything about the case that he could have learned from a legal summons. It is now so thoroughly well settled as to make it too late to urge that (Hn 5) knowledge by a defendant of a suit, however definite and full, or however obtained, or whatever may have been the defendant's action under that knowledge, is of any avail or advances the case a step, unless there has been a legal summons or a legal appearance. McPike v. Wells, 54 Miss. 136; Jacks v. Bridewell, 51 Miss. 881; Burns v. Burns, 133 Miss. 485, 97 So. 814."
(Hn 6) It is not claimed that appellee ever committed any act or spoke any word amounting to any representation to Mrs. Armstrong or to a concealment of any fact from her or that he remained silent with the expectation or intention that Mrs. Armstrong would rely on his silence. It is not even intimated in this record that Mrs. Armstrong's position was changed for the worse by reason of appellant's conduct, nor was the appellee under any duty to speak. We do not have here a case wherein the appellee was under any duty to speak, knew facts not known to his opponent but remained silent with intent to mislead the other, and did by his silence mislead the other. Hence Staton v. Bryant, 55 Miss. 261; Roberts v. Bookout, 162 Miss. 676, 139 So. 175; Lucas v. New Hebron Bank, 181 Miss. 762, 180 So. 611; and Sample v. Romine, 193 Miss. 706, 8 So.2d 257, 9 So.2d 643, 10 So.2d 346, relied on by appellant, have no application here. There is no element of estoppel in this case, and the lower court was correct in so holding.
(Hn 7) Neither was the appellee guilty of laches. Under item ten of the will appellee was to receive on Mrs. Armstrong's death a one-fifth part only of the property then remaining in the hands of the trustees under the P.H. McCalep will. He had no right to anything until Mrs. Armstrong died. Her needs were to be taken out of the income or principal of the estate under items 4 and 5 of the will, and the entire estate, within the discretion of the trustees, could have been expended in the event of illness or emergency overtaking Mrs. Armstrong. Appellee had no right to demand anything of the trustees until Mrs. Armstrong died, and then to demand only one-fifth of the residue remaining in the hands of the trustees. There is no element of laches here, and the lower court was correct in so holding.
It is further contended by appellant that the lower court erred in holding that the alleged will was the true last will and testament of the deceased, P.H. McCalep, and that it was legally admitted to probate in common form.
(Hn 8) The will was admitted to probate in common form by the decree of the chancery clerk in vacation, and this vacation order was never approved by the chancellor or by the court in term time, as provided by Sections 1253 and 1254 of the 1942 Code. It is the established law of this State that the probate of the will in common form before the clerk in vacation is prima facie evidence of the validity of the will until the will is declared invalid and set aside by a proper and lawful proceeding in a proper court, having jurisdiction of the subject matter and of the parties in interest. Bigleben v. Henry, 196 Miss. 586, 17 So.2d 602.
(Hn 9) On the hearing in this cause, appellee introduced in evidence the proceedings before the clerk in vacation admitting the will to probate in common form. This made out a prima facie case of the validity of the will. O'Bannon v. Henrich, 191 Miss. 815, 4 So.2d 208. Section 507, Code of 1942. The only evidence for appellant was the testimony of Will A. McMullen that the signature to the instrument was not the signature of the testator, but on further examination he made it clear that he did not mean to say that someone else signed the testator's name to the will, but that it appeared to him, from the fact that the signature was larger than the testator's usual signature, that someone assisted the testator in the making of testator's signature. This was not sufficient to overcome the prima facie case. The court was consequently correct in holding that the alleged will was the true last will and testament of P.H. McCalep, deceased.
Lastly (Hn 10) it is urged by appellants that the lower court erred in holding that appellants have in their hands as executors of the estate of Mrs. Armstrong, deceased, funds derived from the estate of P.H. McCalep, deceased.
In the stipulation by counsel, it was agreed that the separate estate of Mrs. Armstrong just prior to the payment to her by the executors of the estate of P.H. McCalep of monies belonging to the estate of P.H. McCalep was in excess of the amount of her estate at the time of her death, and that no records are available to show the manner in which Mrs. Armstrong disbursed or used the monies paid to her by the executors of the estate of P.H. McCalep, other than the manner in which she disbursed the $16,500.00, as mentioned in paragraph one of the stipulation.
It is well established that the rights of a beneficiary of a trust estate who finds the trust property has been wrongfully transferred to a third party with notice of the trust are clearly defined in law, and are without dispute so far as we know. Such a beneficiary has the right to follow the trust property and to recover the res if he can identify it in the hands of the third party, or he can have judgment against the third party for the value of the trust property. Scott on Trusts, Sections 291.2, 291.7; Bogert on Trusts, and Trustees Section 867.
Since it is agreed in the stipulation of counsel that no such identification or tracing is possible in this case, it follows that appellee is entitled to a money judgment for the value of his interest in the trust property.
On the cross-appeal by appellee, it is urged that the court below erred in deducting from the residue of the estate of P.H. McCalep that was paid over to Mrs. Armstrong the sum of $7,000.00 that was expended by her for necessary doctor's and hospital bills and nurses' hire and medicine, though agreed to be necessary for her care.
It is argued by appellee that the power conferred upon the trustees under item 5 of the will was a personal power, and its exercise was dependent upon their personal judgment, whether the additional allowance should be made or not, and that the power was a special trust or confidence reposed in their judgment alone and could not be exercised by anyone else and since the trustees were discharged and the money was paid over to Mrs. Armstrong, the trustees have never acted and the court now is powerless to make the allowance, relying on Montgomery v. Millikin, 5 Smedes M. 151; 43 Am. Dec. 507; Bartlett v. Sutherland, 24 Miss. 395; Whitfield v. Thompson, 85 Miss. 749, 38 So. 113; Chandler v. Chandler, 111 Miss. 525, 71 So. 811; and Virginia Trust Company et al. v. Buford et al., 123 Miss. 572, 86 So. 356, 516.
But, appellee admits in his brief "We do not intend to maintain that the discretion vested by the settlor and his executors and trustees was beyond the control of the courts. We know that if such discretion had been arbitrarily abused by the executors and trustees the trial court could have given relief to the one or ones injured thereby. Yeates v. Box, 198 Miss. 602, 22 So.2d 411; Reedy et al. v. Johnson's Estate, 200 Miss. 205, 26 So.2d 685."
(Hn 11) In the construction of wills, the court is alone concerned with the intention of the testator, and looks to the four corners of the will to ascertain that intention, not from what he might have intended to say but from what he actually said in the words used in his will. Yeates v. Box, 198 Miss. 602, 22 So.2d 411; Ball v. Phelan, 94 Miss. 293, 49 So. 956, 23 L.R.A., N.S. 895. (Hn 12) With this rule in mind, we look to the will, and from the language used in item 4 thereof: "It is my desire that . . . my sister, Carrie McCalep Armstrong shall be provided for during her life"; and from the language used in item 5 of the will authorizing the trustees: "to expend additional sum out of other income or principal in whatever amount necessary for the proper care of my said sister"; we determine that it was the intention of the testator that his said sister be cared for and that such of his estate, either income or principal as was necessary for this purpose, the testator desired and intended that it be so used and expended even though it consumed his entire estate. That such expenditure, to the extent of $7,000.00 of the corpus of the estate, was necessary, has been agreed upon in the stipulation of counsel. If the will had not been set aside and the trustees had administered their trust, it would have been their duty to so expend this $7,000.00, and had they refused or neglected to do so, the court could have and would have compelled the allowance. Scott on Trusts, Sections 187.3 and 187.1; Colton v. Colton, 127 U.S. 300, 8 S.Ct. 1164, 32 L.Ed. 138. The deduction of the $7,000.00 from the net estate of P.H. McCalep paid over to Mrs. Armstrong was a proper deduction.
Hence, we find no error in the decree of the lower court, and it is affirmed on both the direct and the cross-appeal.
Affirmed.
Except that the decided cases appear to hold otherwise, and I am bound by them unless and until they are overruled, I would be compelled to conclude that the affidavit in this case states that McMullen, at the time of the former contest of the will, was a non-resident of Mississippi. It borders on the absurd, in my judgment, to say an affidavit does not say a party is a non-resident of this State when it does state the party is a resident of Sherman, Texas, and that Sherman is his post office address. That is the same as concluding that an affidavit fails to state the party is a non-resident of Mississippi, although it says he is a resident of London, England, and his postoffice address is No. 10 Downing Street. He could not be a resident of both places at one and the same time for the purpose of service of process.