Fergusson v. Fergusson

• Decision Date: 18 April 1921
• Docket Number: 283
• Citation: 229 S.W. 738,148 Ark. 290
• Parties: FERGUSSON v. FERGUSSON
• Court: Arkansas Supreme Court

229 S.W. 738

148 Ark. 290

FERGUSSON v. FERGUSSON

No. 283

Supreme Court of Arkansas

April 18, 1921

Appeal from Jefferson Chancery Court; John M. Elliott, Chancellor affirmed.

STATEMENT OF FACTS.

Appellants brought this suit in equity against appellee to enjoin him from mortgaging the land described in the complaint.

The complaint alleges that the appellants are the owners of the land described therein which appellee holds in trust for them by virtue of a will executed by their grandfather and duly probated after his death. A portion of the will in question is as follows:

"I give, devise and bequeath to my son, John P. Fergusson, as trustee, all the property of every nature and kind, real personal, and mixed, of which I may die seized or possessed or in which I may have an interest at the time of my death. To have and to hold unto the said trustee for the following uses and purposes:

"Said trustee shall invest $ 10,000 in real estate, such investment to be agreed upon by the trustee and my brother, Van L Fergusson. The title to said property shall be taken in the name of the trustee, but the management of the place shall be left to my brother, Van, who shall have all the rents and profits and emoluments arising from the said property and its use for the use of himself and my mother, Laura J. Kincheloe. Upon the death of either my mother or my brother, the rents profits, and emoluments of said land shall thereafter belong to the survivor of them. Upon the death of both my brother and my mother, the rents, profits and emoluments of the land shall revert to the trustee. The trustee shall pay $ 50 on the first day of each month to my brother, Van L. Fergusson, during the time between my death and the purchase of the $ 10,000 worth of real estate, but such payments shall cease when the real estate is purchased and turned over to my brother. If the real estate so purchased shall prove unprofitable, the trustee shall have the power, with and by the consent of my brother, Van, to sell said property and reinvest the proceeds in other property which shall thereupon be delivered to my brother and used by him the same as above stipulated for the original investment. During the time between the sale of one piece of property and the purchase of another, the trustee shall pay over to my brother, Van, $ 50 on the first day of each month.

"I give and bequeath to said John P. Fergusson, as trustee, full power and authority to sell, and dispose of any or all of the property bequeathed to him, and to manage, handle, and deal with the same as in his discretion may seem best. He is to hold the same for the use and benefit of his children, John Wright Fergusson and James McFerrin Fergusson, and all other children which may hereafter be born to him. At the death of my said son, all property remaining in his hands as trustee shall immediately vest in his children, share and share alike. During his life, my said son may use and expend the rents, profits, income and emoluments of said property for maintenance, support, and education of his children in such a manner as to him shall seem best, and may invest the surplus at his discretion, and, upon his death, the division of the property then remaining in his hands as trustee shall be equal among his children without taking account of the amount theretofore expended for the use of each child."

The record shows that appellee and his father each owned an undivided one-half interest in the land described in the complaint; that the father devised his interest to appellee in trust as set out in the will above; that 497 bales of cotton were raised on the place during the year 1920, and that appellee was unable to sell them to any advantage on account of existing conditions; that it was necessary to borrow money with which to run the place during the present year; that he desires to borrow money and run the place in the way in which it has been run during past years and in which other places of similar character in that vicinity are operated; that it is highly essential that the place be cultivated in order to prevent great deterioration of the land and the improvements thereon; that the laborers on the place would leave and it would be very difficult to get them back and to restock the place with farming implements, feed and mules.

The chancellor found that under the terms of the will of J. W. Fergusson, deceased, appellee was authorized to mortgage the land in question. The chancellor further found that it was to the best interest of the trust estate and of appellants that the loan contemplated be made, and that such action was necessary to preserve the property from waste.

It was therefore, decreed that the complaint of appellants be dismissed for want of equity, and that app...