Bloom v. Strauss

• Decision Date: 12 November 1904
• Citation: 84 S.W. 511,73 Ark. 56
• Parties: BLOOM v. STRAUSS
• Court: Arkansas Supreme Court

84 S.W. 511

73 Ark. 56

BLOOM v. STRAUSS

Supreme Court of Arkansas

November 12, 1904

Appeal from Jefferson Chancery Court, JOHN M. ELLIOTT, Chancellor.

Reversed.

STATEMENT BY THE COURT.

Abraham Strauss, a resident of Jefferson County, Arkansas, died in 1894, possessed of certain real and personal property, the rental value of which was about $ 1,000 or $ 1,500. He disposed of this property by will, of which the material parts, so far as this case is concerned, are as follows:

"I will and bequeath to my wife, Hanchi Strauss, all my property, real, personal and mixed, of which I may die seized and possessed, with the right to sell and convey the two lots on Pullen street, and one lot on Scull street for the purpose of supporting the family, and I desire that my said wife do not marry again, but live single with the children of my family and take care of them. I will and bequeath to my children all my estate, real, personal and mixed, to be divided among them equally after the death of my wife; but my said wife to have full control of everything during her life. The children who are legal heirs of my estate are as follows, to-wit: Simon Strauss Carrie Joseph, nee Strauss, Allie Strauss, Rena Strauss Josie Strauss, Mina Edna Strauss, who after the death of my wife are to inherit my whole estate, share and share alike."

The testator had been twice married, and five of the children named in the will were children of his first wife, who died in 1882. Their respective ages were at time the will was executed as follows: Simon, 27; Carrie, 25; Allie, 19; Rena 18; and Josie, 14 years of age. One of the two children by his last wife was at that time 9, and the other 5 years old.

After the death of their father all of these children, with the exception of two that were married, made their home with Mrs Strauss until her marriage to Isaac Bloom, which took place in 1898. After that time the children by the first wife lived separate and apart from her, and afterwards brought this action, alleging that Hanchi Bloom, their stepmother, was appropriating the whole income of the property to herself and excluding them from any beneficial interest therein; she claiming that plaintiff had, under the will of their father, no interest in the property. They asked that the will be construed, their rights under it defined, and that defendant be compelled to account for the rents and profits derived from the estate.

The defendant appeared, and answered, and denied that plaintiffs had any right to the rents and profits thereof during her life.

On the hearing the chancellor held that the widow of Strauss took the estate devised for life in trust for the support of the family of the testator, and that the children were entitled to share in the proceeds during the life of the widow. Defendant appealed.

Judgment reversed and cause remanded.

Irving Reinberger and J. W. Crawford, for appellants.

In a will the intention of the testator must prevail. 13 Ark. 513; 108 Mass. 529; 1 Redf. Wills, 496. The word "children" sometimes means minor children. 61 Ark. 579. The widow of Abraham Strauss was not a trustee. 88 N.Y. 228; 2 Sim. 267; 8 Chan. Div. 540; 25 Eng. Rep. 459; 52 S.W. 202. Words assigning a reason do not raise a trust. Beach, Wills, 403; 135 Ill. 398; 130 Mass. 461; 1 Perry, Trusts, sect; 119; 128 Ill. 187; 98 Ill. 625; 18 Gratt. 541; 41 Ark. 51; Underhill, Trusts, 21, 36; 2 Pom. Eq. Jur. sect; 1015; 2 Story, Eq. Jur. 1069. The doctrine of precatory trusts has never met with unanimous approval. 2 Pom. Eq. Jur. sect; 1017; 20 Pa.St. 268; 59 Am. Dec. 718; 25 Am. St. Rep. 373; 88 N.Y. 228; 11 Nev. 442; 15 Ala. 296; 49 Md. 573; 44 Am. Dec. 377; 31 Ark. 380; 2 Redf. Wills, 442; 49 Am. Dec. 435. The chancellor's decree as to the accounting of rents was erroneous. Only infant children were entitled to same. 66 Ark. 148; 1 Perry, Trusts, sect; 118; 2 Perry, Trusts, sect; 615. When a supplemental bill is filed, it must be in respect to the same title in the same person as stated in the original bill. Story, Eq. Pl. sect; 339; 4 Paige, 259; 8 Price, 518; 4 Sim. 76. The motion to strike from the complaint should have been sustained. Sand. amp; H. Dig. sect; 5703: Bliss, Code Pl. sect; 117; Newman, Pl. amp; Pr. 458. The widow of Strauss had a right to insure the property for her benefit. 1 Wood, Fire Ins.. 645; 1 May. Ins. 6, 80; 2 Cush. 412; 1 Jones, Mortg. 396.

J. M. amp; J. G. Taylor and White amp; Altheimer, for appellees.

The property under the will could not be sold during the life of the widow. 36 S.E. 737. The extent of the beneficial interest under the will can be ascertained and enforced. 2 Hare, 607; 3 Kay, 497; 4 Mass. 634; 49 Ia. 219; 140 Mass. 557. There is no distinction in favor of the minor children. 69 Ark. 94; 45 Ark. 191; 48 Ark. 312. Errors or defects in proceedings which do not affect substantial rights of the adverse party are not sufficient for reversal. Sand. amp; H. Dig. sect; 5772; 42 Ark. 196. The object of the supplemental bill was to recover money paid by the insurance company from the faithless trustee. 2 Perry, Trusts, 836; 1 Perry, Trusts, 427; 91 Mass. 382; 31 Ark. 580; 1 Perry, Trusts, sect; 112.

RIDDICK J. WOOD and MCCULLOCH, JJ., dissent.

OPINION

RIDDICK, J., (after stating the facts.)

This is an appeal from a judgment of the chancery court of Jefferson County construing the will of Abraham Strauss and holding that it created a trust in favor of his children. It is very plain that the testator has not expressly declared that this property should be held in trust by the widow for the support of herself and the children named in the will; but it is argued with much force that the will, taken as a whole, and considered in the light of the circumstances surrounding the testator at the time it was executed, shows that such was the intention.

It is no doubt true that a trust sometimes arises "when property is given to a parent, or person in loco parentis, with no trust declared in terms, but with such directions for the maintenance of his family or children as enable the court to infer an intention on the part of the donor that the property should be held in trust for the purposes of the maintenance. No definite rule can be laid down, for each case must stand upon its own circumstances. If the language is sufficient for the intention to be clearly inferred, the trust will be enforced; otherwise the donee will take an absolute estate, and the provisions concerning maintenance will be regarded as mere motives for the gift and recommendations addressed to his discretion." 2 Pomeroy, Eq. Jur. sect; 1012.

The earlier English decisions had a tendency to adopt a rule that words in a will expressing a desire, entreaty, or recommendation as to the disposition of property for the benefit of others would create a trust, but, to quote the language of Chief Justice Gray, "by the later cases, in this, as in all other questions of the interpretation of wills, the intention of the testator, as gathered from the whole will, controls the court; in order to create a trust, it must appear that the words were intended by the testator to be imperative; and when property is given absolutely and without restriction, a trust is not to be lightly imposed, upon mere words of recommendation and confidence." Hess v. Singler, 114 Mass. 56.

In deciding cases of this kind courts must ascertain the intention of the testator from the language of the whole will, considered in the light of the circumstances under which it was made. No absolute rule, as before stated, can be deduced from the decisions, for they are seemingly in great conflict--a conflict which no doubt arises because each case of this kind must turn upon its own peculiar circumstances and the language of the particular will to be construed.

Bearing in mind these observations, we proceed now to consider the will before us. After looking at the whole of this will, we feel certain that the testator gave his property to his wife for life with remainder to his children, and the question presented is whether this life estate given to the wife was devised to her in trust for the children. Now, it being clear from the will that the wife was given an estate for life, and that the testator intended that she should, quote the language of the will, have "full control of everything during her life," the courts should not defeat this intention by taking charge of the property and directing, contrary to her wishes, how it should be managed and the income therefrom distributed, unless it appears with reasonable certainty that the testator really intended to impose a trust upon the life estate devised to his wife.

The language of the will which bears most directly on this point is as follows: "I will and bequeath to my wife, Hanchi Strauss, all my property, real, personal and mixed, of which I may die seized and possessed, with the right to sell and convey the two lots on Pullen street and one lot on Scull street for the purpose of supporting the family, and I desire that my said wife do not marry again, but live single with the children of my family and take care of them." Now there may be some ambiguity about this language, for we are not absolutely certain whether the words "for the purpose of supporting the family" were intended to limit and explain the clause by which the property was devised, or whether it only limits that part of it which gives to the wife power to sell and convey the two lots on Pullen street and one on Scull street. The chancellor who heard the case was of the opinion that the words "for the purpose of supporting the family" modified all of that part of the sentence preceding it, and that the meaning of the whole sentence is that the property was devised...