BEFORE HAWKINS, P.J., ANDERSON AND GRIFFIN, JJ.,
ANDERSON, JUSTICE, FOR THE COURT:
This is an appeal from a decree of the Chancery Court of Lowndes County granting The Snowdoun Association's petition
for specific performance of an agreement between the Association and Thompson G. Daniel.
Snowdoun, an antebellum mansion in Columbus, was the ancestral home of Elizabeth Garth. In 1973, she married the appellant, Thompson G. Daniel, and the two lived at Snowdoun until her death on December 17, 1980. Elizabeth died testate with a holographic will with two codicils, leaving Daniel $35,000 in cash and two tracts of real estate in Oktibbeha County. One of the codicils provided for the creation of The Snowdoun Association, a non-profit corporation which was to receive title to the house Snowdoun with the understanding that it would be open to the public as a museum. $30,000 was set aside for the home's maintenance, and one of the codicils gave Daniel the right to live at Snowdoun as long as he desired. The residue of Elizabeth's estate - a very substantial one - was to be divided equally between the foundation for Mississippi University for Women and St. Paul's Episcopal Church.
Thompson Daniel was dissatisfied with the provision for him under the will. He filed an action in the chancery court seeking to have the bequest to MUW and St. Paul's declared void as contrary to the mortmain statutes. In the alternative, he sought to renounce the will and take his legal share of the estate in lieu of the bequest. The Snowdoun Association was not named as a party in this contest; the degree to which it took part in settlement negotiations is in dispute. Eventually, however, a settlement was reached in which Snowdoun was given the original $30,000 bequest plus 12% of the residuary estate, a total of about $100,000. MUW and St. Paul's received about $135,000 each and the rest went to Daniel. The settlement agreement was executed on October 2, 1981. On October 5, 1981, Daniel executed the" memorandum of understanding "which is the subject of this litigation. It reads:
Memorandum of Understanding
For good and valuable consideration, the undersigned, Thompson G. Daniel, does hereby covenant and agree that on or before November 1, 1981, but in no event later than three (3) days following distribution of the residuary estate of Elizabeth Garth Daniel, deceased, he will cause to be deposited in an Irrevocable Inter Vivos Trust at the Merchants and Farmers Bank of Columbus, Mississippi, the sum of $100,000. Said Merchants and Farmers Bank shall act as Trustee of said trust with
the income to be distributed to the said Thompson G. Daniel during his lifetime and the principal and undistributed income to be paid to The Snowdoun Association, a Mississippi not for profit corporation, upon the death of the said Thompson G. Daniel.
The Trustee, named above, shall make all investment decisions; however, said investment decisions shall require the approval of Thompson G. Daniel.
This Agreement is for the benefit of The Snowdoun Association and, in the event said Irrevocable Inter Vivos Trust is not entered into on or before the date set forth hereinabove, said Snowdoun Association may seek to enforce this Agreement in any court of law or equity by way of specific performance or otherwise.
In witness whereof the undersigned has executed this Agreement on this the 5th day of October, 1981, and this Agreement shall be binding upon the heirs and assigns of the said Thompson G. Daniel.
/s/ Thompson G. Daniel Witness /s/ (illegible)
Daniel failed to establish the trust fund, and Snowdoun brought the present action demanding specific performance of the agreement and further alleging that Daniel had converted certain items of personal property associated with the house to his own use. Daniel answered that the agreement was void for lack of consideration, and denied converting the articles. The cause was heard before the chancellor, who found that the memorandum was supported by consideration and was therefore binding upon Daniel. He ordered it specifically performed. He also concluded that only one of the articles of personal property in question, to-wit a Battenburg tablecloth, had been converted, and that Daniel must account for it.
As all lawyers know, a promise not supported by consideration will not ordinarily be enforced by the courts. At the heart of this appeal is the question whether the" memorandum of understanding "was supported by consideration. The chancellor found two bases for ...