Le Flore v. Handlin

• Decision Date: 08 May 1922
• Docket Number: (No. 346.)
• Citation: 240 S.W. 712
• Parties: LE FLORE et al. v. HANDLIN.
• Court: Arkansas Supreme Court

240 S.W. 712

LE FLORE et al. v. HANDLIN.

(No. 346.)

Supreme Court of Arkansas.

May 8, 1922.

Appeal from Sebastian Chancery Court; J. V. Bourland, Chancellor.

Suit by Le Roy Le Flore and others against Frank A. Handlin, trustee. From a decree dismissing the complaint, plaintiffs appeal. Affirmed.

Jas. B. McDonough, of Ft. Smith, for appellants.

Warner, Hardin & Warner, of Ft. Smith, for appellee.

WOOD, J.

Mrs. Ida L. Foucar died testate at San Francisco, Cal., on February 1, 1920, having executed her will on the 27th day of February, 1918. The second clause of the will is as follows:

"Second: I give and bequeath unto my son Louis Le Flore, of Stigler, Oklahoma, and to his children living at the time of my death, the sum of One Hundred ($100.00) Dollars each. I purposely make no further provision for my said son Louis Le Flore, nor for any of his children, because my said son Louis enjoyed a larger share of his father's estate than either of my other two sons hereinafter mentioned and provided for, and because his present financial condition is materially better than that of either of his said two brothers."

In the third clause, the testatrix states the reason for not making any provision for her husband. In the fourth and fifth clauses, she bequeaths to her two sons Frank T. Le Flore and Chester H. Le Flore the sum of $10,000 each, and provides for the manner of succession in case of their death before her own. In the sixth clause, she bequeaths to Frank A. Handlin, trustee, all the residue of her estate to be held by him for certain uses and trusts which we will specify in paragraphs or items numbered from one to nine inclusive.

(1) and (2) confer upon the trustee the power to handle the property bequeathed to him; to invest the income therefrom upon such terms as he thinks advisable, and to pay the taxes, insurance, etc.

(3) In this item, the trustee is directed to use the income from the estate bequeathed to him, or such portions thereof as may be necessary, or even the corpus thereof, if required, for the maintenance and education of her grandson Edouard B. Le Flore, son of Frank T. Le Flore, and Chester Harwood Le Flore, son of Chester H. Le Flore, until they have reached their majority.

(4) This item directs that, five years after the death of the testatrix, the trust shall terminate as to one-half of the trust property, and the "same shall go and belong equally to Frank T. Le Flore and Chester H. Le Flore," her sons.

(5) This item is as follows:

"When each of my said grandsons arrives at the age of twenty-one years, my said trustee shall pay to my said grandsons, out of said trust fund, the sum of Five thousand ($5,000.00) Dollars, and said trust shall end and terminate as to the sum of Five Thousand ($5,000) Dollars when each of my said grandsons respectively reaches the age of twenty-one (21) years, and I do hereby give and bequeath unto each of my said grandsons upon his arriving at the age of twenty-one (21) years, the sum of Five thousand ($5,000) Dollars."

(6) In this item the testatrix specifies that, when her grandson Chester Harwood Le Flore reaches 25 years of age, the trust terminates as to one-half of the trust property then remaining, after deducting therefrom the sum of $5,000, which is to be paid to her grandson Edouard B. Le Flore, and her grandson Chester Harwood Le Flore then receives the remainder of the one-half of the trust property.

(7) In this item it is provided that, when her grandson Edouard B. Le Flore reaches the age of 25 years, the trust shall terminate as to all the balance of the property, and she bequeaths the same at that time to him.

(8) This item contains advice and suggestions to the trustee.

(9) This item of the sixth clause of the will is substantially as follows:

"Upon the death of either of the sons of the testatrix, his share shall be held by the trustee, subject to the trust, and shall be paid to the son of such decedent when said grandson reaches the age of 25 years; provided, if said grandson dies before reaching 25 years of age, leaving issue, such issue shall take and receive said share when said grandson would have reached twenty five; provided further that should Edouard B. Le Flore die before he is 25 without issue, his mother, if living, shall succeed to his share and the trust shall terminate thereto; but if Chester Harwood Le Flore should die before he is 25 without issue, his share shall be held by the trustee for the benefit of Edouard B. Le Flore and shall be paid and delivered to him subject to the trust. If either of my said grandsons should die before becoming 21 or 25 years respectively, leaving issue him surviving, such issue shall take the share the parent would otherwise be entitled to, subject to the aforesaid trust and at the time when the parent would have taken hereunder; provided that if my said grandson Edouard B. Le Flore, should die prior to reaching the age of 21 or 25 years respectively, without issue him surviving, his father, if living, and if his father should have theretofore died, his mother, if living, shall succeed to the share or shares of my said grandson forthwith; and said trust shall terminate and end with respect thereto; provided further, that if my said grandson Chester Harwood Le Flore should die prior to reaching the age of 21 or 25 respectively, without issue him surviving, his father, if living, shall succeed to the share or shares of my said grandson forthwith, and said trust shall terminate and end with respect thereto, but if his father shall have predeceased him, my said trustee shall succeed to the share or shares of my said grandson, to be held by my said trustee upon the uses and trusts aforesaid, and for the benefit of my grandson Edouard B. Le Flore, to be paid and delivered to him at the times and in the manner in said trust provided."

In the seventh and eighth clauses of the will, the testatrix names Handlin as her executor, and, in the event of his death, she names whoever may be the president of the First National Bank of Ft. Smith to succeed him, and directs that he may serve without bond and confers upon him the power to handle the estate without obtaining an order of the court.

The concluding clause is a revocation of all other wills.

This action was instituted in the chancery court of Sebastian county, by the appellants, against the appellee, as trustee and executor. The appellants contend, as shown by the allegations of their complaint, that, under the will, they are each entitled to the sum of $5,000 when they become 21 years of age. They alleged that the trustee does not so construe the will, and they prayed that the will may be construed as they contend and that the trustee be directed to adopt such construction.

The appellee, in his answer, denied that the will should be construed as contended by the appellants and admitted that he contends that it was not the intention of the testatrix to bequeath to the appellants any other sum or amount than the sum of $100, mentioned in the second clause of the will.

In addition to the will, the testimony of Louis Le Flore, the father of appellants, was heard. It was stipulated that the estate of the testatrix was of the value of $83,000; that Chester Harwood Le Flore, son of Chester H. Le Flore, was 19 years of age on July 20, 1921, and that Edouard B. Le Flore, son of Frank T. Le Flore, was 10 years of age on July 28, 1921. The court made findings and rendered a decree adverse to appellants' contention and dismissing their complaint for want of equity. From that decree is this appeal.

The will created a trust estate and named the appellee as the trustee to administer the same. The court of equity therefore had jurisdiction to construe the trust. In seeking a construction of this will, the practice approved in the case of Williamson v. Grider, 97 Ark. 588, 607, 135 S. W. 361, et seq. was followed. See, also, Booe v. Vinson, 104 Ark. 439-444, 149 S. W. 524; Heiseman v. Lowenstein, 113 Ark. 404, 169 S. W. 224, Ann. Cas. 1916C, 601.

"Over and over again we have said that the rule in the construction of wills is to give effect to what appears to be the intention of the testator, in view of all the provisions of the will." Cook v. Worthington, 116 Ark. 332, 173 S. W. 397.

See, also, Eagle v. Oldham, 116 Ark. 565-573, 174 S. W. 1176, 1199.

In the case of Eagle v. Oldham, supra, we cited and quoted Smith v. Bell, 6 Pet. (31 U. S.) 68, 8 L. Ed. 322, where Chief Justice Marshall said:

"The first and great rule in exposition of wills, to which all other rules must bend, is, that the intention of the testator, expressed in his will, shall prevail, provided it be consistent with the rules of law."

Other cases to the same effect are Heiseman v. Lowenstein, supra; Union & Mercantile Trust Co. v. Hudson (Moore), 143 Ark. 519, 220 S. W. 820; Moore v. Avery, 146 Ark. 193, 225 S. W. 599; Finch v. Hunter, 148 Ark. 482, 230 S. W. 553.

In Taylor v. McClintock, 87 Ark. 243, 274, 112 S. W. 405, 411, we said:

"Every man has the untrammeled right to dispose of his property by will as he pleases, with only such limitations as the statute may impose. The `English Law,' said Lord Chief Justice Cockburn, `leaves everything to the unfettered discretion of the testator, on the...