Booe v. Vinson

• Citation: 149 S.W. 524,104 Ark. 439
• Parties: BOOE v. VINSON
• Decision Date: 15 April 1912
• Court: Supreme Court of Arkansas

149 S.W. 524

104 Ark. 439

BOOE v. VINSON

Supreme Court of Arkansas

April 15, 1912

Appeal from Prairie Chancery Court, Northern District; John M Elliott, Chancellor; affirmed.

STATEMENT BY THE COURT.

This suit was brought by Carrie and Bennie Vinson, devisees under the will of Howard Beine, against the executor of his estate and all other of his relatives for a construction of the will and a determination of their rights in the estate thereunder.

Howard Beine died in Prairie County, Arkansas, in December, 1907 testate, and disposed of all his estate by will, which was duly probated, and contained the following, among other clauses:

"All my estate, real, personal and mixed, I give and bequeath to my aunt, Mrs. Carrie Vinson, and her daughter Bennie Vinson, subject to the following conditions and bequests:

"The property, real and personal, must be so held in trust by some trust company or responsible individual, who shall be named by my executors and trustees, that Mrs Vinson and Bennie shall not receive more than $ 1,200 per annum for the maintenance of both of them as long as they shall live; at their death it is my desire that what is left, if anything, be used for charitable purposes."

The estate consisted of personal property of the value of about $ 50,000 and real estate of the value of $ 25,000. A bequest of diamonds already in possession of the legatee was made, and also of a debt, of a certain sum, to the debtor.

W. I. Booe and W. H. Hayley, were named as executors and trustees of the will, to serve without being required to give bond.

The will was probated by W. I. Booe, who qualified as executor. Hayley, the other named, being a nonresident of the State, did not qualify.

It was alleged that the attempted bequest to charitable purposes was void for indefiniteness and uncertainty, and that under a proper construction of the will the plaintiffs, upon the testator's death were vested with the absolute title to the whole estate, and that no trust for the control thereof was in law or fact created by the will, but it was only the purpose to create a trust for the distribution of such of the estate remaining for charitable purposes after the direction of the testator had been followed in the distribution of the estate to plaintiffs. That plaintiffs were the sole and only heirs at law of said testator, and that, the devise to charitable purposes being void for uncertainty, they are entitled to the property under the will and as heirs at law of the said testator.

It was alleged further that the other defendants, naming them, were related in some degree, unknown to plaintiffs, to the testator; that the estate was an ancestral one, inherited by the testator from his father, and prayed a construction of the will and a determination of the rights of all the parties thereunder, and that the executor be discharged and directed to surrender the property to plaintiffs as the owners thereof.

The executor filed a separate answer to the complaint, admitting the death of the testator, as alleged, the making and probating of the will and his qualification as executor, also that the estate was acquired by the testator from his father; denied that the plaintiffs were the sole and only heirs at law of the testator, and that they were entitled, either in law or in fact, to the whole estate; suggested that the devise for charitable purposes might be void for uncertainty, the necessity for a full adjudication and determination of the rights and interests arising, or attempted to be created, under the will, and that the Attorney General be made a party to represent the interest devised for charitable purposes, and further "that a true and proper construction of said will is that it creates a legal and valid trust; that the plaintiffs herein, Carrie and Bennie Vinson, are seized of the beneficial or equitable title in and to all of said property and the trustee of the legal title for the purpose of carrying out the provisions and purposes of said trust; that the said plaintiffs are restricted and limited in the use of said property to the sum of $ 1,200 per annum, so long as they shall live; that this defendant is, by reason of his executorship, now the trustee with power to appoint his successor; that when such successor in trust is appointed and qualified the legal title will vest in him as such trustee for the purposes of said trust; that at the death of the plaintiffs and the termination of said trust the remainder of said property may pass to the heirs of these plaintiffs or to such persons as the plaintiffs may designate by such means and mode of conveyance not inconsistent with their estate and the rights given them by the terms of said will."

Prayer that his construction of the will be adopted by the court, for costs and other relief.

The testimony shows that Carrie Vinson was a sister of the testator, 45 years of age, and that her daughter, Bennie Vinson, was adult; that during the testator's life he paid their living expenses under the direction contained in his father's will, conveying to him virtually the estate devised herein. That they have no source of income, except such as may be received from the estate of the testator, and they are the nearest surviving relatives and next of kin of the testator.

The court decreed: "That the true and correct construction of the will is that the alleged bequest for charitable purposes is void because the same is vague, indefinite and uncertain, and that the said plaintiffs, Carrie Vinson, and her daughter, Bennie Vinson, take the property, real, personal and mixed, belonging to the estate of the said Howard Beine, deceased, absolutely and in fee simple absolute, with the power and right of alienation and free from interference or control of the said W. I. Booe, as executor of the estate of Howard Beine, deceased, or as trustee thereof, or any of the other defendants in this suit."

The executor appealed from the decree.

Decree affirmed.

W. A. Leach, for appellant.

1. The demurrer should have been sustained, since the complaint does not state facts sufficient to give a court of chancery jurisdiction. Equity will not lend its aid merely to construe a will. No equitable rights or estates are sought to be determined. 70 Ark. 432; 80 Ark. 1; 97 Ark. 588.

2. The cardinal rule in construing wills is to arrive at the intent of the testator, and if that intent can be clearly ascertained, and is not contrary to some positive rule of law, it must prevail. And for the purposes of such construction not only is the instrument to be considered as an entirety, but the question is to be settled, "What did the testator mean by the words he actually used?" The manifest intention, as appears by the proof in this case, was to provide for appellees' support while they lived, even if it required the entire estate to do so, and, in order to make certain the execution of this purpose, he provided that it should be held in trust. 41 Ark. 64; 2 Pet. (U.S.) 370; 6 Pet. (U.S.) 68; 18 Ala. 242; 7 Ann. Cases, 948; Page on Wills, §§ 460, 461; 90 Ark. 152; 13 Ark. 513; 31 Ark. 580; 3 Pet. (U.S.) 346; 105 Mich. 718.

The clause of the will, construction of which is asked, expresses but "one consistent thought, and every part of it is necessary to do so, and must be so construed." The unmistakable purpose was to vest the entire property in a trustee for the sole purpose of paying over to the plaintiffs the annual stated sum while they lived, and at their death whatever was left of the estate to go to charitable purposes. 95 Ark. 333; 187 N.Y. 400; 10 Ann. Cases, 172; 74 Kan. 751. Conceding that the bequest of the residue of the estate to "charitable purposes" is void for uncertainty, that portion of the will can be disregarded without doing violence to the intent and dominant purpose of the testator. 216 Ill. 236; 3 Ann. Cases, 396; Id. 950. See also 59 Pa. 393; 2 Perry on Trusts, (6 ed.) 633, and cases cited in note.

Joe T. Robinson, T. C. Trimble, F. E. Brown and Mehaffy, Reid & Mehaffy, for appellees.

1. Equity jurisdiction has never been denied where an executor or trustee or cestui que trust has applied to give a "doubtful or disputed clause" in a will construction to insure a correct administration of the power conferred by a will. In this case a trust exists by virtue of the executorship, and a special express trust is at least attempted to be created with reference to both real and personal property, and the executor directed to nominate his successor. 3 Pomeroy, Eq. Jur., § 1156; 34 Barb. 106; 88 N.Y. 469.

2. The limitation over for "charitable purposes" is void. 89 Ark. 596; 14 L. R. A. (N. S.) 49. "When a bequest to a charitable use is too vague and indefinite to be carried into execution, it is void, and the subject of the trust is undisposed of and the benefit thereof results to the next of kin." 5 Carr. & J. 392; 9 Am. Dec. 572; 50 Conn. 501; 47 Am. Rep. 69; 35 Ind. 198, 9 Am. Rep. 690; 61 Mo. 592; 1 Russ & M. 232. See also 16 N.C. 276; 18 Am. Dec. 587; 2 W.Va. 310; 2 Ia. 315; 37 Tenn. 255; 88 Tenn. 637. The power of a testator to create a "spendthrift trust," that is, limit his bounty by means of a trust, so that it shall not be liable to the debts, control or engagements of the beneficiary, is recognized as valid except when annexed to a legal title in fee. 96 Mo. 439. But such a trust must rest upon the clear intent of the donor. 88 Pa.St. 276. The presumption is that such a trust is not intended unless express words to that effect are set forth, or a clear and undoubted intention to that end is manifested in the will. 133 S.W. 160, 164. See also 100 Md. 39, 59 A. 194; 149 Mass. 307, 21 N.E. 376.

3. The words, "all my estate, real, personal and mixed, I give and bequeath to my aunt,...