Phillips v. Phillips

• Decision Date: 05 April 1920
• Docket Number: 308
• Citation: 220 S.W. 52,143 Ark. 240
• Parties: PHILLIPS v. PHILLIPS
• Court: Arkansas Supreme Court

220 S.W. 52

143 Ark. 240

PHILLIPS v. PHILLIPS

No. 308

Supreme Court of Arkansas

April 5, 1920

Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor reversed.

Decree reversed and cause remanded.

Price Shofner and T. D. Crawford, for appellant William James Phillips.

1. The court erred in restating the accounts of William James Phillips and in disallowing four items thereof; the attorneys' fees, printing briefs and the amounts paid for abstracts of title to land. These claims had been duly allowed by the probate court, and the only remedy was by appeal. The allowance by the probate court was a judgment and can not be attacked in a collateral proceeding. 48 Ark. 277; 38 Id. 471; 35 Id. 205. It is binding on all parties and can only be set aside for fraud in procurement. 90 Ark. 440; 86 Id. 368; 50 Id. 217; 40 Id. 393; 102 Id. 114; 5 Id. 468. The probate court had exclusive jurisdiction. 34 Ark. 71; 45 Id. 1, and it was error for chancery to take jurisdiction. 33 Ark. 727; 45 Id. 512.

2. The court erred in disallowing to plaintiff interest on the probate allowances from the time made down to the date of the decree. Kirby's Digest, § 5387; 40 Ark. 393.

3. The court erred in holding that the interest of Hilda, Mildred and William James Phillips in the homestead should not take effect until after the death of James Phillips, also in charging William James Phillips with rent thereon. Thompson on Wills, §§ 322-355. The language of the will shows that the testatrix intended that these two parties should have the home at once and without partition until Hilda became 21 years old.

4. The court erred in holding that the charge of $ 50 a month was a first charge after payment of taxes, improvement taxes and repairs. The ruling is arbitrary.

5. The chancellor erred in providing that none of the property should be sold so long as James Phillips lived. The jurisdiction of equity to construe wills is strictly limited to defining the powers and duties of the trustee created by the will. 104 Ark. 439; 70 Id. 432; 88 Id 1; 3 Pom. Eq. Jur., § 1154, note; 97 Ark. 588; 113 Id. 404. See also 9 Peters (U. S.) 461; 61 N.H. 144; 5 N.J.Eq. 629; 33 Id. 476; 58 N.Y. 335; 87 Me. 63; 62 Ill.App. 611; 84 N.W. 1039; 71 N.E. 903; 163 Ind. 311.

6. If the court differs from us and holds the court had jurisdiction, then the account should be restated, and William James Phillips should be credited with the amount due him under the 1914 settlement and the 1915 settlement and interest at 6 per cent. to the date of the decree, also with the amounts due under the 1916, 1917 and 1918 settlements and 6 per cent. interest and with the $ 50 per month paid to James Phillips.

Lewis Rhoton, for appellees and cross-appellants.

1. The same construction should be placed upon the will as in 124 Ark. 395-397.

2. William James Phillips is not entitled to interest on his settlements, but he should be charged with interest on the amount he owed the estate.

3. The cross-appellants are entitled to recover as to the furniture left at the homestead. Acts 1917, p. 1441; Brown v Creekmore, 141 Ark. 512.

4. William James Phillips has no right to complain of the restatement of his accounts by the chancellor.

5. If the decree is reversed or modified, then cross-appellants are entitled to have the construction placed on the will that this court did in Fortner v. Phillips, and William James Phillips is not entitled to the advancements made his father during his life, as there were no funds sufficient to pay the $ 50 a month, and his advancement was voluntary, and should come out of his own pocket. 29 Ark. 500-508.

Gardner K. Oliphint, on the brief for appellees.

Reid Burrow & McDonnell and Gus Ottenheimer, for Hilda Mildred Phillips.

There was no error as to the payment of $ 50 per month as to James Phillips. This court properly construed the will in 187 S.W. 318; 124 Ark. 395. The bequest was at most a general legacy. 129 N.W. 955; 53 S.E. 371; 54 A. 589; 40 Cyc. 1632; 3 C. J. 202. All general legacies are to be satisfied out of the personal property before the real estate can be resorted to. 31 S.W. 1043; 62 N.Y.S. 996; 34 S.E. 754; 16 N.E. 137; 47 A. 540; 83 N.Y.S. 1013; Thompson on Wills, p. 283. The legacy to Hilda Mildred was specific and could not be abated to pay a general legacy of personalty. Supra. Where two clauses of a will are in conflict, the last provision controls. 115 Ark. 400; 113 Id. 497; 22 Id. 567; 28 Id. 102; 40 Cyc. 1180; 94 Ind. 359; 4 Mass. 208; 21 S.E. 464. The cause should be reversed, and appellant Hilda's interest in the real estate should take precedence over the claims of William James Phillips or James Phillips. 40 Cyc. 1727, 1731-3; 89 Ark. 596; Pom. Eq. Jur. (4 ed.), § 1009; 39 Cyc. 200; 42 A. 51.

OPINION

WOOD, J.

The will of Sarah M. Phillips, deceased, is as follows:

"I Sarah M. Phillips of the city of Little Rock, Pulaski County, State of Arkansas, being of sound mind and disposing memory, do make and declare this to be my last will and testament, hereby revoking any and all other wills by me heretofore made.

"I nominate, constitute and appoint my son, William James Phillips, as executor and trustee of this, my will, who shall serve as such without being required to execute bond.

"I direct and instruct that my executor shall first pay all my just debts and funeral expenses.

"I further direct and instruct that my said executor shall pay over to my beloved husband, James Phillips, the sum of $ 50 each and every month as long as he shall live.

"To my son, William James Phillips, I give, devise and bequeath all the tools, implements of trade, horses, mules, wagons, vehicles, harness and all other equipment connected in any way with the contracting business of which I die possessed; also all that part of block thirteen (13), Crawford's Addition to the City of Little Rock, Pulaski County, Arkansas, on which is located what is known as the "lumber yard" and "gravel bed," together with all lumber and gravel thereon.

"I give, devise and bequeath to my said executor, to be held by him in trust for the sole use and exclusive benefit of my granddaughter, Hilda Mildred Phillips, to be used for her as to him may seem best until she shall have reached the age of twenty-one (21) years, at which time she shall take it in fee simple, an undivided one-third (1/3) interest in my homestead, described as lots one (1) and two (2), fractional block twenty-four (24), Braddock's Boulevard Addition to the City of Little Rock, Pulaski County, Arkansas.

"The remaining two-thirds (2/3) interest in my said homestead, above described, I give, devise, and bequeath to my son, William James Phillips, in fee simple, provided that said homestead shall not be sold, partitioned or divided until my said granddaughter, Hilda Mildred Phillips, shall have reached the age of twenty-one (21) years.

"I give, devise and bequeath to my said granddaughter, Hilda Mildred Phillips, my piano.

"All the balance and residue of my estate, both real and personal, wherever situated, I give, devise and bequeath, share and share alike, to William James Phillips, Harry George Phillips, Emma Charlotte Hardy Wunderlich, Annie Rose Gambold and Hilda Mildred Phillips, except that my executor shall deduct $ 50 from the share of said Hilda Mildred Phillips and pay over to her father, Ernest Charles Phillips, one (1) year from the date of my death, and provided that the share of my granddaughter, Hilda Mildred Phillips, shall be held in trust by my executor for her sole use and exclusive benefit, to be used for her as to him may seem best until she shall have reached the age of twenty-one (21) years, at which time she shall take her said share in fee simple.

"Witness my hand and seal this 29th day of July, 1912.

Sarah M. Phillips."

This appeal involves the construction of the above will.

James Phillips was the husband of Sarah Phillips. William James Phillips, Harry George Phillips, Emma Charlotte Hardy Wunderlich, and Annie Rose Gambold are the children of Sarah and James Phillips. Hilda Mildred Phillips is a granddaughter, and Jimmie Phillips is the wife of Harry George Phillips.

This action was brought by William James Phillips, and in his complaint he designated the other parties, above named, as defendants. After alleging that there was a will and that the plaintiff was executor and that the defendants had an interest under the will, plaintiff alleged that, pursuant to the directions of the will, he had paid the debts of the testatrix and had paid James Phillips $ 50 per month since the death of the testatrix; and paid the taxes and the necessary expense of keeping the property in repair, all of which he had paid out of his own money, there being no personal property of the estate out of which to pay said debts and claims; that the real estate could not be sold to satisfy same without an unnecessary sacrifice thereof; that since the death of Sarah M. Phillips he had made annual settlements in the probate court showing receipts and disbursements of funds and had accounted for the rents which he had collected; that said annual settlements had been approved by the probate court. He set up these settlements and made them exhibits to his complaint and alleged that since the settlements covering the transactions for the year 1918 he had paid the taxes and probate clerk costs and expenses of an abstract of title for a portion of the lands and had paid James Phillips, under the terms of the will, for three months, making a total of $ 314.82; that this amount should be added to the amounts due the plaintiff under the settlements which had been approved by the probate court, making a total of $ 5,387.65, which had been advanced by the plaintiff ...