Bieatt v. Echols

• Decision Date: 03 March 1930
• Docket Number: 193
• Parties: BIEATT v. ECHOLS
• Court: Arkansas Supreme Court

25 S.W.2d 431

181 Ark. 235

BIEATT v. ECHOLS

No. 193

Supreme Court of Arkansas

March 3, 1930

Appeal from Woodruff Chancery Court, Southern District; A. L Hutchins, Chancellor; affirmed.

Judgment affirmed.

Brundidge & Neelly, for appellant.

Bogle & Sharp, for appellee.

OPINION

BUTLER, J.

Dr. R R. James of Cotton Plant, Arkansas, was the owner in his lifetime of a large estate, consisting of lands and personal property, of the aggregate value of $ 200,000. He executed a will, and, having died in 1926, the will was duly probated in the probate court of the Southern District of Woodruff County, Arkansas. In this will the Bank of Cotton Plant & Trust Company was named as executor and trustee. The bank duly qualified as such executor, and proceeded to administer the estate until the 17th day of June, 1927, when it failed and was taken over by the State Bank Commissioner. On the 19th day of September, 1927, the chancery court of the Southern District of Woodruff County appointed D. H. Echols trustee in succession, who qualified and proceeded with the administration of the trust created by the terms of the will.

The will, after making a number of specific bequests, left the residue of the estate to the wife of the testator for life. By paragraph VI of the will, after the death of the wife, all of the remainder of the estate of whatever kind was devised and bequeathed to the Bank of Cotton Plant & Trust Company, as trustee, for the uses thereafter set forth, and the testator, after naming the trustee, made the following provision: "I hereby direct that the said trustee shall hold and manage said property for a period of twenty years, and that said trustee shall annually distribute all income derived from said property as follows:

"It shall pay to the said Bank of Cotton Plant & Trust Company twenty per cent. of said income as payment for its services in administering this trust; second, to pay to the trustee of Galloway College fifteen per cent. of the said income; third, to pay to the trustees of Hendrix College fifteen per cent. of said income; fourth, to pay to the trustees of the Methodist Episcopal Church South of Cotton Plant, Arkansas, ten per cent. of said income; fifth, to pay to the trustees of the Methodist Orphanage at Little Rock, Arkansas, ten per cent. of said income, and ten per cent. of said income shall be held by said trustee for the benefit of the poor people of the town of Cotton Plant, Arkansas, to be paid out and distributed by said trustee as it may deem best, and at such times as it may deem proper.

"I direct that twenty per cent. of said income shall be paid to John M. James during his life or until the termination of this trust, but, if the said John M. James should die before the termination of this trust, then in that event this payment shall cease, and the said twenty per cent. shall be distributed pro rata to the other beneficiaries named above in this paragraph.

Section VII of the will is as follows: "I direct that at the end of each year that the said trustee shall file with the chancery court for the Southern District of Woodruff County, State of Arkansas, a report showing in full all amounts received by it, and the amounts disbursed by it, with the proper vouchers therefor.

"After the end of said twenty years the said trustee shall file in said court a report in full showing a complete inventory of all property held by it as such trustee under this trust and the conditions of the same. And if it shall appear to said court that it would be for the best interest of the beneficiaries in this trust to terminate the same, then the same may be done under the order and directions of said court, but if it shall appear to the court that it will be for the best interest to continue this trust, then the same may be done under a proper order of said court. When this trust is terminated and the property sold, I direct that the proceeds arising from the sale shall be distributed as follows: Forty per cent. of same shall be paid to the trustees of Galloway College, and forty per cent. shall be paid to the trustees of Hendrix College, and twenty per cent. shall be paid to the trustees of the Methodist Orphanage at Little Rock, Arkansas."

Section VIII of the will provided that: "If, at any time during the life of the trust above provided for, it shall appear to the trustee that any property held by it under this trust is not profitable to hold, and that it would be for the best interest of the trust to sell the same, then the said trustee shall have the right and power to sell the same in such manner as may be deemed best. And said trustee shall have the right to sell the same and convey the legal title thereto, and do all things necessary to be done to complete the sale of said property.

"When any property held by such trustee shall be sold, as above provided, the said trustee shall make a report of such sale to the chancery court above designated, and shall set forth the reason for said sale."

Section IX of the will is as follows: "I request and desire that the Bank of Cotton Plant & Trust Company shall accept this trust and execute the same, but if the said Bank of Cotton Plant & Trust Company shall fail or refuse to accept and execute the same, or if, after having accepted the same, it should resign, it shall make a report to the said chancery court, and the said court shall appoint a trustee to carry out the purpose of this trust.

"I hereby nominate and request the Bank of Cotton Plant & Trust Company, of Cotton Plant, Arkansas, to act as the executor of this, may last will and testament."

After the failure of the bank, the probate court of Woodruff County appointed D. H. Bieatt administrator of the estate on the day of January, 1928. This case involves the power of the chancery court to restrain the administrator de bonis non from interfering with the trustee in the management of the estate. The chancery court of Woodruff County, on complaint of the trustee, rendered judgment enjoining the administrator from taking charge of any of the property belonging to said estate, or interfering with the trustee in the management of the same. The case was tried on an agreed statement of facts which, as far as they are material to the question presented to this court, are as follows:

After reciting the execution of the will and the death of James the partial administration of the estate by the trustee and executor bank, its failure, the appointment of Echols trustee and successor, his giving bond, and that his appointment "was made by the chancery court over the objection of a majority both in number and interest of the legatees in said will," the appointment on January 17, 1928, by the probate court of Woodruff County of Bieatt, administrator, his qualifying and giving bond, the filing of suit by the trustee, and the issuance of a temporary injunction, the statement of facts continued as follows: "That assets of the said R. R. James estate, consisting not only of land, but of several thousand dollars of notes and accounts due said estate; that several thousand dollars of said notes and accounts, some of them secured and many of them unsecured, are still due and uncollected; that all of the claims probated against said estate at the time the trustee, D. H. Echols, took charge of same have been paid, but...