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G. M. "BINX" WALKER v. ALMA V. COX ET AL.

SEPTEMBER 28, 1988

G. M. "BINX" WALKER
v.
ALMA V. COX ET AL.



BEFORE DAN LEE, ROBERTSON AND GRIFFIN.

DAN LEE, PRESIDING JUSTICE, FOR THE COURT:

Alma V. Cox, the successor income beneficiary, joined by Mary A. Cox, the settlor, of the "Frederick G. Cox, Jr. Children's Trust," filed in the Chancery Court of Hinds County,

Mississippi a complaint for an accounting and removal of G. M. "Binx" Walker as trustee. This complaint was filed on three grounds: the trustee's absence from the jurisdiction, the trustee's failure to give an accounting, and the hostility of the trustee toward the successor income beneficiary. The holders of the residuary interest, John J. Connors III and Janet M. Connors, Alma's children by a previous marriage, joined as plaintiffs. Charles A. Cox, Frederick's son by a previous marriage, joined the defendant.

 The lower court found that Mr. Walker had relocated to another jurisdiction, failed to give the successor beneficiary an accounting, and showed signs of hostility towards the successor beneficiary. The chancellor ruled that the preceding actions interfered with the performance of the trust, and ordered the trustee's removal. From this holding, G. M. "Binx" Walker appeals and assigns one error. Ultimately finding no error, we affirm.

 STATEMENT OF THE FACTS

 On October 1, 1966, Mary Anderson Cox (hereinafter "Mary"), the settlor (one of the appellees') established a trust with the appellant, G. M. "Binx" Walker (hereinafter "Binx"), as the trustee. Binx was a C.P.A. and an attorney. Under the terms of the trust, the principal beneficiaries were the settlor's son, Frederick Gardiner Cox, Jr., and said son's wife, Alma V. Cox (hereinafter "Alma"). The principle purpose of the trust was to provide income to "keep up the usual standards of support, education, medical care, welfare and social position which my son maintain's for himself, his wife and family . . .," and when he died, for his surviving wife's life. Frederick Gardiner Cox, Jr., the son, died in 1978 and for the past several years the sole income beneficiary of the trust has been his surviving wife, Alma.

 Under Binx's management, the equity in the trust increased from $36,788.09 in 1978, the year of Frederick's death, to $157,087.40 in 1985. According to the record, Mrs. Cox received distribution from the F. G. Cox Trust as follows:

 INCOME DRAWN BY %AGE YEAR ALMA COX OF CORPUS CORPUS

 1978 $2,500.00 0.057% $43,727.00 1979 $2,000.00 0.054% $36,788.00 1980 $3,400.00 0.063% $54,245.00 1981 $3,800.00 0.052% $72,442.00 1982 $4,200.00 0.055% $76,273.00 1983 $7,250.00 0.082% $87,922.00

 1984 $7,500.00 0.054% $137,945.00 1985 $10,000.00 0.071% $140,466.00

 The amounts shown above supplemented Alma's gross income of approximately $60,000 per year ($30,000 for her work with the State Department of Public Welfare and oil income of $2200-$3000 per month.

 Despite Alma's $60,000 per year income, she insisted that Binx invade the corpus of the trust for additional money to take care of certain expenses. Alma pointed to expenses of maintaining a large home: re-roofing, placing siding on the house, repairing the sprinkler system and carport.

 Although the expenses cited by Alma seem legitimate, Binx refused to invade the corpus of the trust. Using his discretionary powers as set out by the trust, Binx told Alma that she could not invade the trust by demand. More specifically, Binx informed Alma that Frederick G. Cox, Jr., Alma's husband, had the prerogative to invade the trust up to $5,000 a year. This prerogative pertained solely to the primary income beneficiary, Frederick G. Cox, Jr., and not to any other successive income beneficiary. Alma interpreted Binx's response to mean that the power to invade the corpus of the trust was limited to the primary beneficiary.

 In addition to the request to invade the corpus of the trust, Alma asked Binx to give her an accounting of the net assets of the trust. Binx, refusing to give her an accounting, stated that "[he was] under the belief that the residuary trustees were the ones entitled to an accounting." Having been refused the additional money and an ...


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