Frank v. Frank

• Decision Date: 26 October 1908
• Parties: FRANK v. FRANK
• Court: Arkansas Supreme Court

113 S.W. 640

88 Ark. 1

FRANK v. FRANK

Supreme Court of Arkansas

October 26, 1908

Appeal from St. Francis Chancery Court; Edward D. Robertson Chancellor; reversed.

STATEMENT BY THE COURT.

John F Frank was a resident of Memphis, Tenn., and died there on October 6, 1904, leaving a will containing six paragraphs. The first paragraph provides for the payment of his debts the second is a devise of his residence to two of his daughters and one of his sons; the third provides a legacy of one thousand dollars for a grandson. The fourth is as follows: "I hereby give, devise and bequeath to my seven children and legal heirs, to-wit: Chaps. F., Robt. B., John L., Walter A., Clara M., Elizabeth G. and Leonora F. Frank now Mrs. S. A. Bowen, all my property, real, personal and mixed, wheresoever situated, not already disposed of, which I now own or may hereafter acquire and of which I may die seized and possessed, absolutely and in fee simple and in equal shares. The division shall be made by three commissioners to be appointed by my said children, and the lots and parcels of land so divided shall be drawn for by them, and any difference in the valuation be settled among themselves. The property of my daughters, however, shall be held and owned by them for their sole and separate use and enjoyment, free from the debts and contracts of any husbands for and during their natural lives, with remainder in fee to their children, and, in default of children surviving either of them then to my children who shall then be living, their heirs and assigns forever; and, should any of my sons die without issue, his or their shares shall also revert to my children then living, their heirs and assigns forever." The fifth paragraph is a provision that no lawyers' fees or court costs whatever be charged to his estate, and any heir desiring to employ an attorney should do so at his own individual expense. The sixth appointed three executors, and made provision for choosing their successors.

Mr. Frank owned large tracts of land in Lee, Crittenden and St. Francis counties, Arkansas. He left seven children surviving him; the children were all adults, and there were eight grandchildren, all of whom were minors. His children filed suit in the chancery court of St. Francis County against the grandchildren and the executors, seeking a construction of the will. They set forth the ownership of the land in said county and other counties in Arkansas by Mr. Frank at his death, the execution of his will and its due probation in Shelby County, Tenn., the names and residences of his children and grand children, and of the executors of the will, and that duly authenticated copies of the will had been filed with the clerk of each of said counties and had been duly admitted to probate by the probate courts of Lee, Crittenden and St. Francis counties; and set forth that the executors had duly qualified in the State of Tennessee, and are proceeding with the administration of said estate in the State of Tennessee, and have paid or will pay all of the debts and liabilities of every character, and have ample personal assets for that purpose, so that the said executors have not qualified and will not qualify in the State of Arkansas, as there is no occasion for their doing so. And they further alleged that the legacy given by the said will to the grandson had been paid or would be paid by the executors in Tennessee; and there is no necessity or occasion for taking such legacy into account for the purposes of this suit.

They further alleged that a suit had been brought and is now pending in the chancery court of Shelby County, Tenn., for a construction of the will of said John F. Frank, and that such court has jurisdiction of the subject-matter and the executors named in said will, and that the children of said Frank are the plaintiffs, and his grandchildren are the defendants therein, and that said suit will be finally settled and determined with reference to the real estate located in the State of Tennessee, and all the personal property wheresoever situated; but that said court has no jurisdiction to establish the title to the lands in Arkansas; and for that reason this suit was brought for the purpose of obtaining a construction and interpretation of the titles derived by the parties to the suit to the lands devised by the fourth paragraph of the will.

The plaintiffs alleged that, by a proper construction and interpretation of the said fourth paragraph, the testator had attempted to limit a remainder in the lands upon a previous gift or devise thereof to the plaintiffs, respectively, in fee simple and equally; and charged that under the laws of Arkansas it was not lawful to dispose of the fee in said lands and then to create and limit a remainder upon such fee, and then to control and circumscribe the disposition of the fee, as was attempted in the will; and they allege that the plaintiffs take an absolute fee simple title, and that the remainders and cross-remainders to the children of the testator, or his grandchildren or descendants, as therein provided, are void and without effect. But they allege that, in consequence of the probate of the will, and because it disposes of all the said lands and contains provisions as above stated, it is necessary, in order that the titles of the plaintiffs may not be incumbered and embarrassed, and that they may be able to hold, use, enjoy and dispose of their lands according to their title and rights under the laws, that the court should put a construction and an interpretation upon the fourth paragraph of said will, and ascertain and declare and decree the legal effect thereof, so that the titles and rights of the parties may be fixed and established, and that it may be known just what they are and just what can be relied upon by all persons having occasion to deal with the same.

It was prayed that the defendants be brought in under proper process, and guardians ad litem appointed for the minors they having no regular guardians; and that the court put a proper construction and interpretation upon every part of the will, particularly the fourth paragraph; ascertain and fix the rights of the plaintiffs and defendants in the lands, which were described at length in the complaint, and their shares therein; and that the same be declared vested in the plaintiffs in fee, equally, share and share alike, and not...