
    C. T. Guion v. M. Pickett et al.
    
    1. Powers : construction op intention op parties to govern. —In. the construction of powers, the intention of the parties, if compatible with law, must govern: the intention is to be determined from the instrument creating the power.
    2. Trust and trustees : appointment op a new trustee. — The power authorizing the appointment of a new trustee should plainly express the conditions on which a new trustee may be appointed, and should embrace every event that would render'such appointment necessary.
    3. Same : under what circumstances new trustee mat be appointed. — The appointment of a new trustee under a power cannot be made unless the terms of the power distinctly authorize it in the particular event which may have occurred.
    4. Same : case in judgment. —Deed oí trust from W. to C., for the benefit of P., authorized the cestui-qua trust to appoint a new trustee in the event of the refusal or neglect of the trustee to execute the trust. 0., the trustee, died without executing the trust. Udd — That the death of C. did not authorize the cestui-gue to appoint a new trustee, and that one could be appointed only by a court of chancery.
    8. Chancery practice : on motion to dissolve injunction upon dill AND ANSWER, BILL CANNOT BE DISMISSED UNTIL FIVE MONTHS AFTER ANSWER filed. — On sustaining a motion to dissolve an injunction where the answer denies the statements of the bill, it is improper to dismiss the bill until five months after answer filed, during which period, parties are allowed ' to take testimony.
    Error to the Chancery Court of Hinds county. Hon. John Watts, chancellor.
    Plaintiff in error filed her bill in tbe court below, to enjoin defendants in error from selling certain real estate in the city of Jackson. The bill states that in 1860, Charles F. Wergandt purchased the property in controversy from Jane E. Pickett and her husband, Micajah Pickett. That Wergandt, to secure the payment of a note for $800, given for the purchase of the property to Jane E. Pickett, executed a deed of trust to Pobert A. Clarke, trustee. That said note had been paid. That subsequently, plaintiff in error bad purchased the property. That Pobert A. Clarke, bad died, and that one James B. Clarke, who pretends to have been appointed trustee in the deed of trust executed by Wergandt, had advertised the lands for sale under the trust deed. That James B. Clarke was not appointed trustee by tbe deed of trust, nor does said deed contain any authority to any one to appoint him to act, nor has he been appointed by the decree of any court. Prays that James B. Clarke, Jane E. Pickett, and her husband, he made defendants, and that they he enjoined from selling the lands, &e.
    An injunction was granted. After the return of process duly executed, James B. Clarke, Jane E. Pickett, and her husband, filed their answer, in which they state: That the note of Wergandt had not been paid, or any part thereof. That the deed of trust authorized the appointment of a new trustee by Jane E. Pickett and her husband, in the event of the refusal or. nesdect of the trustee to execute the trust. That the trustee, Bobert A. Clarke, had died without executing the trust, and that James B. Clarke had been appointed a new trustee. The answer was filed on the 28th day of April, 1868.
    On the 26th day of May, 1868, on motion of appellees previously made, the injunction was dissolved, and the bill dismissed.
    
      W. da. J. B. Y~erger for plaintiff in error.
    
      J. B. OlarJce for defendants in error.
    No briefs of counsel on file.
   Pexton, J.,

delivered the opinion of the court.

It appears from the record in this case that on the first day of March, 1860, one Challes F. "Wergandt made his certain promissory note payable twelve months after that date, to Jane E. Pickett, Micajah Pickett, for the sum of $800. And to secure the payment of said note and interest thereon, the said Wergandt made and executed a deed of trust, bearing oven date therewith, by which he conveyed certain real estate, situated in the city of Jackson in this State, to Bobert A. Clarke, as trustee, authorizing him to sell and convey the same in default of payment of said note and interest, and apply the proceeds of the sale to the payment thereof, and in case the said trustee shall neglect or refuse to -execute the trust reposed in him, then the said Jane E. Pickett may appoint some other person to execute the said trust, who shall have, and execute, all the powers and duties conferred and imposed by said deed of trust, upon the said Bobert A. Clarke, trustee as aforesaid.

That the said Bobert A. Clark died without executing the trust, and that the said Jane E. Pickett, and Micajah Pickett, her husband, did, in writing, on the 10th day of April, 1868, appoint James B. Clarke trustee, to act' in the place and stead of the said Bobert A. Clarke, deceased, and that the said James B. Clarke, at the request of said Jane E. Pickett, was proceeding to advertise and sell said property, to pay the amount alleged by her to be due of principal and interest on said note. When the appellant filed her bill in the Chancery Court of Hinds county for the first district thereof, against Micajah Pickett, Jane E. Pickett, and James B. Clarke, alleging that she had, subsequently to the date of said deed of trust, purchased the said real estate from the said Wergandt, and was the owner of the same, and in the possession thereof; and in her said bill she denies that there is any thing due on said note, and that the said James B. Clarke has any authority to sell said real estate; and prays for an injunction to restrain the said James B. Clarke from selling the same.

The said defendants, in their answer, insist that the said note, and interest thereon, remain wholly due and unpaid, and that the said James B. Clarke, appointed trustee as aforesaid, was fully authorized and empowered to sell and convey said real estate under said deed of trust, to pay and satisfy the amount due of principal and interest on said note.

And on the 28th day of May, 1868, the cause came on to be heard on the motion of the defendants to dissolve the injunction, and dismiss the bill of complaint, on bill, answer, and exhibits; when the court sustained the motion, dissolved the injunction, and dismissed the bill; and from this decree the cause is brought here by appeal.

The main question presented for our decision is, whether Jane E. Pickett had the power under the deed of trust, upon the death of the trustee, to appoint another trustee in his stead, to execute the trust.

In the construction of powers, the intention of the parties, if compatible with law, governs the court. But that intention is to be collected from the instrument creating the power. And with regard to the appointment of a new trustee, the power authorizing it should express plainly the cases in which a new trustee may be appointed, and it should embrace every event that can render such appointment necessary,— such as the neglect or refusal of the trustee to act, his death, absence from the coitntry, wish to retire from the office, or incapacity to discharge its duties. Hill on Trustees, 251. The appointment of a new trustee under a power cannot properly be made, unless tbe terms of the power clearly and distinctly authorize tbe appointment in tbepartictdar event wbicb may have occurred.

In tbis case, it cannot, with any propriety, be said that Robert A. Clarke, tbe trustee appointed by tbe party creating tbe power, neglects or refuses to execute tbe trust, and as by tbe terms of tbe power there is no other event wbicb would authorize tbe appointment of a new trustee by tbe cestioi-gue trust, we arrive at tbe conclusion that Jane E. Pickett bad no power to appoint James B. Clarke a trustee to execute tbe trust. But upon tbe death of tbe trustee appointed by tbe party executing the deed of trust, she should have resorted to a court of chancery for tbe appointment of a new trustee to execute tbe trust.

Tbe bill of complaint charges that tbe note, to secure tbe payment of wbicb tbe deed of trust was executed, has been paid. Tbis is denied by tbe answer. In tbis state of tbe ease, if it bad been right to dissolve tbe injunction, it was certainly wrong to dismiss tbe bill. Parties are entitled to five months for taking testimony after answer filed, unless tbe complainant shall admit tbe answer to be true.

Eor these reasons, tbe decree must be reversed, and cause remanded.  