Union Trust Co. v. Rossi

• Decision Date: 02 December 1929
• Docket Number: 22
• Citation: 22 S.W.2d 370,180 Ark. 552
• Parties: UNION TRUST COMPANY v. ROSSI
• Court: Arkansas Supreme Court

22 S.W.2d 370

180 Ark. 552

UNION TRUST COMPANY v. ROSSI

No. 22

Supreme Court of Arkansas

December 2, 1929

Appeal from Pulaski Chancery Court; Frank H. Dodge; Chancellor reversed.

STATEMENT BY THE COURT.

This appeal involves the construction of the will, disposing of a considerable estate of real and personal property, of Joseph Rossi, a resident of Little Rock, who died on March 11, 1927.

The will directs the payment of all his debts, and, if necessary for the purpose, the use of the insurance taken out by the testator for his wife, Emma Rossi. Item 2 reads: "I direct that $ 2,000 shall be set apart and kept as a fund the principal or interest from which shall be used to keep the grave of my wife and myself in order." In item 3 the executor is directed to cause to be paid to the testator's wife "the sum of $ 250 per month net," and in addition she was given the use and enjoyment of the home "for the term of her natural life," all taxes, assessments and expenses of keeping the home in repair to be paid out of the estate, and she to have the use and enjoyment thereof without any cost to her.

Item 4 is as follows: "It is my desire that, after my wife's death, my estate shall be distributed as follows (a) $ 4,000 each to be paid to my sisters, Gissella Lombardi Maria Menna, Giacinta De Palme, Caroline del Rossi; (b) each of my two nieces, children of Carmella Lombardi, shall receive the sum of $ 1,000, said sum to be held in trust by the executors until each of them shall become of age according to the law of Italy; the income therefrom to be paid them during their minority in such manner as the executors may see fit. After they have respectively attained full age, they shall receive the said sum and any unpaid income therefrom in full. It is also my desire that the house and lot I own in Monteroduni shall go to my said nieces, to have and to hold the same unto them and their heirs and assigns forever, and to receive all the profits therefrom. (c) The remainder of my estate, after the death of my wife and after the above bequests have been satisfied, shall go to my two brothers, or, if either of them be dead, then to their children, so that the boys shall respectively receive twice as much as each of the girls; said division to be made so that the children of any of my brothers shall receive all that their father would have received had he been alive; and if either of my sisters or my nieces shall die without issue them surviving, the sum directed to be paid and property herein bequeathed to them shall go to my brothers or their children upon the terms above mentioned."

An emergency surplus fund of $ 2,000 per year arising from funds not required to be used under the first three items of the will was provided, and that the excess above that sum should be divided annually among his brothers and sisters, share and share alike, the children of any dead to take the share of their parent.

By item 6 the Union & Mercantile Trust Company of Little Rock is appointed executor, and also it provides: "but it is my desire that no part of my real estate be disposed of until after the death of my wife, Emma Rossi, and then only subject to the approval and direction of my adult male legatees or a majority of them; but no such election shall operate to delay the payment of or defeat any gift heretofore made herein."

The complaint alleges that the testator's estate consists of lot 10, block 71, in the city of Little Rock; lot 13, block 9, Chamber of Commerce Addition to the city of Little Rock; $ 6,297.83 in cash, $ 5,000 in life insurance, and certain building and loan stock maturing in the sum of $ 4,000 on September 28, 1928, all said property being new acquisitions; the appointment of the Union Trust Company on March 21, 1927, as executor; that the executor and all the legatees mentioned in the will were made parties and served with process, and entered their appearance. The complaint further alleged the testator left no descendants, and contained a renunciation of plaintiff's, the widow's, rights under the will, and prayed that there be set-off to her as dower one-half of the gross estate of the deceased.

Answers and cross-complaints were filed by all the parties defendant. The surviving children of Maria

Menna, a sister of the testator, who died on November 8, 1927, subsequent to the testator's death, alleged in their answer and cross-complaint that they were the sole and only heirs at law of Maria Menna. In another answer and cross-complaint filed by a sister of the testator, a devisee under his will, certain persons are alleged to be the sole and only heirs at law of Gabriel Rossi and residuary legatees to one-half of the estate; that the estate had been appraised at $ 103,000, the bulk of it consisting of real estate appraised at $ 85,000; that it is impractical to allot dower without a sale of the estate, which should be ordered made, free from dower. It further alleges that the distribution of the estate is accelerated by this action, and that the executor should be required to make final settlement of the estate when dower is allotted.

The Union Trust Company, as executor, denied the allegations of the complaint and the various cross-complaints, and prayed that the will be construed in all its phases so that it might distribute the estate in accordance with the intention of the testator, and conserve the right and property interests of all devisees and legatees.

From the decree construing the will, holding the distribution of the estate accelerated by the widow's renunciation of its terms and ordering final distribution, the appeal is prosecuted.

Cause reversed and remanded.

Clayton & Cohn, for appellan...